Vicarious Liability for Sexual Harassment

If you are involved in the running of a not-for-profit, it is likely that you have thought about your organisation’s work health and safety obligations, but have you thought specifically about the risk of sexual harassment? Unfortunately, not-for-profits are not safe or immune from the risk of sexual harassment between employees.

The scope of damages awarded in sexual harassment cases has increased dramatically in the past 15 years. Where damages were typically within the $5,000 - $20,000 range, damages now frequently exceed $100,000. For example, in a recent decision of the Queensland Civil and Administrative Tribunal, the applicant was awarded $313,316.10 in damages after a fellow employee sexually assaulted her whilst staying in a shared hotel apartment provided by her employer. These damages included general damages of $70,000 to compensate for psychological trauma caused by the incident and damages for past economic loss of $162,594.42 since the Tribunal found that the incident had a long-term impact on the applicant’s ability to work. Relevantly, as is common in these cases, the employer was held to be vicariously liable for the sexual harassment committed by its employee.

"... an employer will be vicariously liable unless it is established that the employer took all reasonable steps to prevent the conduct."

Under the Sex Discrimination Act 1984 (Cth), provided that the conduct constituting sexual harassment occurred in connection with the employee’s employment, an employer will be vicariously liable unless it is established that the employer took all reasonable steps to prevent the conduct. To determine whether you have taken all reasonable steps to prevent sexual harassment, the following questions might assist:

1. Do you have policies that address unacceptable conduct, including sexual misconduct and any conduct that may be deemed to be sexual harassment?
2. Have your policies been reviewed by a lawyer?
3. Have employees been informed of, and trained in compliance with, your policies?
4. Do you seek to assess and mitigate the risk of sexual harassment in circumstances of heightened risk, which may include:
   a)  Social functions, especially where alcohol is served;
   b)  Work trips;
   c)  Employees working past office hours.

Do not delay addressing these questions until after a sexual harassment claim has been made. If anything discussed in this article has raised a question or concern, please contact l%87%DB%CF%D7%D4V%A7%DF%B9%C5%86