As the Australian legal profession grapples with the issue of bullying and harassment in the workplace, the principal of one NSW law firm has been ordered to pay damages to an employee for ongoing sexual harassment.

Ordered to pay damages

The head of a boutique law firm in Bangalow, near Byron Bay on the far north coast of New South Wales, has been ordered to pay $170,000 in damages, including a record $50,000 in aggravated damages to an employee he relentlessly harassed over the course of her employment.

The case

Catherine Mia Hill separated from her husband in 2007 before moving to Northern New South Wales with her two children and commencing to study law on a part-time basis.

She was admitted as a legal practitioner in April 2015 and obtained employment as a paralegal with the law firm Beesley and Hughes in May 2015, before progressing to the role of solicitor.

Her employer, Owen Hughes, was described in court documents as a ‘divorced… lonely man… seeking a relationship’.

Mr Hughes made clear to Ms Hill early in the relationship that he was interested in pursuing an intimate relationship with her.

He bombarded Ms Hill with emails, going so far as to plead with her to commence a relationship with him and even blocking her exit to request a ‘hug’ when she was leaving the office.

The court heard that during a work trip to Sydney, the pair were staying at the home of Mr Hughes’ brother when Ms Hill walked into her room to find her employer dressed only in a singlet and boxer shorts.

Mr Hughes justified his actions by saying it was a “very hot night”, contending that Ms Hill was “flirty and coquettish”.

The court further heard Ms Hill was “desperate to keep her job” and felt her position was in jeopardy if she outright rejected Mr Hughes’ advances, and that she suffered psychological injury as a result of her employer’s conduct.

The question for the Federal Circuit Court was whether Mr Hughes’ conduct amounted to sexual harassment sufficient to make an order for damages under 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth) and, if so, the quantum of those damages.

Definition of sexual harassment

Section 28A of the Sex Discrimination Act 1984 (Cth) provides that a person sexual harasses another if he or she:

  • makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
  • engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

‘Conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

When determining whether conduct amounts to sexual harassment, the court must take into account:

  • the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
  • the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
  • any disability of the person harassed; and
  • any other circumstance it considers to be relevant.

The decision

While accepting there was “nothing crude, vulgar or lascivious” about Mr Hughes’ conduct, Judge Vasta found it was “obviously unwarranted, persistent and threatening”.

He found the conduct amounted to sexual harassment and, considering the impact, assessed general damages at $120,000.

As to aggravated damages, the judge remarked that neither Mr Hughes’ lonely situation nor his “many deficits as a lawyer” justified what Ms Hill’s lawyers described the respondent’s attempts at “slut shaming” – in other words, the suggestion the applicant was encouraging the advances through her manner of dress and allegedly flirtatious conduct.

The judge regarded that suggestion as “utterly outrageous”, awarding Ms Hill $50,000 in aggravated damages as a result.

Sexual harassment is rife in Australian workplaces

A survey conducted last year by the Australian Human Rights Commission (AHRC)

shows:

  • One in three people reported being sexually harassed in the workplace – this figure has risen by 21 percent since 2012
  • 71 percent reported being sexually harassed at some point in their lives, and that women are far more likely to experience sexual harassment than men – 85 percent versus 56 percent.
  • Young people are at the greatest risk in the workplace, with the figures suggesting that 45 per cent of people aged between 18 and 29 had been subjected to this kind of treatment.
  • Alarmingly, one in five 15 to 17-year-olds reported experiencing sexual harassment at work.

Even more recently, the International Bar Association (IBA) – the global voice of the legal profession, which has a worldwide membership base of more than 80,000 legal practitioners, bar associations and law societies, conducted an international survey which suggests that in the legal profession the rates of sexual harassment are even higher.

Thirty percent of Australian respondents to the IBA survey reported that they had been sexually harassed in the workplace, compared with 21.8 per cent in the United Kingdom and 32.6 per cent in the United States.

Women lawyers in Australia also reported higher rates of harassment and bullying than their male peers, at 47 per cent compared with 13 per cent of men. The global average was 22 per cent.

In New South Wales

In response to the results, the Law Society of NSW chief executive Michael Tidball said the IBA data “underscores the need for the Law Society of NSW to continue to provide leadership in confronting systemic inequity between men and women and, at an individual level, deal with the distress that arises from harassment, bullying and inappropriate behaviour”.

But is this strategy actually working? The bottom line is that women not only need to feel safe at work, they need to feel respected, secure in the knowledge that their voice (especially when it says ‘no’) is heard.

Across all professions, sexual harassment is attributed to extended absences from work, In the legal profession it is also directly related to the high attrition rates amongst females.

If you are a victim working in the legal profession

Victims of bullying, sexual harassment and other professional misconduct can report offenders to the Law Society’s professional standards department. Under the rules governing solicitors’ conduct, any of these unacceptable behaviours could lead to an offender being suspended or even prohibited from practising.