Opinion & Analysis
OPINION: Sexual harassment in the workplace is an insidious reality. Often perpetuated by people in a position of power over the victim, it cans be incredibly difficult for staff to stand up and challenge this behaviour.
In the employment jurisdiction, as in the criminal context, it is often a case of one person's word against the other. It can also be difficult for a victim to judge just how bad the behaviour is when it escalates over a period of time.
These factors mean that victims often suffer in silence, and sexual harassment claims seldom reach the courts.
On top of this, victims have to decide whether it is worth bringing a claim. On the one hand, there may be a point of principle and justice; on the other, it is very often the victim's credibility which is attacked.
Further, awards of compensation claims in sexual harassment cases are typically modest which means that, once the lawyer is paid, there may not be much change.
So far there would not appear to be a lot of reason for victims of sexual harassment to put themselves on the line to pursue these claims. But, this may be about to change - at least from a financial perspective.
Across the Tasman, the Federal Court recently took the chance to set out a much wider basis for awards of compensation for sexual harassment. IT executive Rebecca Richardson was awarded A$130,000 (NZ$143,000) for distress as a result of sexual harassment by a colleague at software firm Oracle. The award was seven times what she had been awarded by the lower court.
The sexual harassment involved 11 significant incidents, including the male colleague joking that he and the victim must have been married in past life because they fought so much - "So, Rebecca, how do you think our marriage was? I bet the sex was hot."
This went on for seven months, after which Richardson resigned, claiming constructive dismissal. She alleged the behaviour she was subjected to had not only affected her psychologically, but had damaged her career.
The lower court absolved Oracle of most of its responsibility, finding that Richardson had left her job voluntarily and dismissing her claim that she had damaged her income-earning ability. She was awarded A$18,000.
On appeal, the Federal Court held the award of A$18,000 to be "out of step with the general standards prevailing in the community regarding the monetary value of the loss and damage sustained". It is hard to argue with that. Importantly, the court found that Richardson should be compensated for both "pain, suffering and loss of enjoyment of life", as well as damages from the economic loss flowing from her resignation caused by the harassment.
The court commented that sexual harassment damages have not kept pace with other types of awards, such as for bullying claims where employers have been found to be liable for failing to provide a safe workplace.
On the economic-loss point, Richardson successfully argued that she had been forced to take a lower-paying job for two years following her employment at Oracle, and that she should be compensated for the drop in salary.
Our Human Rights Review Tribunal recently made similar comments about providing genuine compensation to victims of sexual harassment.
The case of DML v Montgomery concerned a sex worker providing commercial sexual services at the Kensington Inn, a brothel in Wellington. It was alleged that the brothel manager, Aaron Montgomery, had subjected the plaintiff to sexual harassment by the use of language of a sexual nature. In particular, it was alleged that he had repeatedly asked highly personal questions about the victim's sexual practices, purportedly on the basis that it was necessary for business reasons to seek this information.
Montgomery denied the allegation and the case came down to an assessment of credibility between him and the victim.
The tribunal preferred the plaintiff's evidence, finding that, even in a brothel, language with a sexual dimension can be used inappropriately in suggestive, oppressive, or abusive circumstances. Further, the tribunal held that the fact that a person is a sex worker was not a licence for sexual harassment - they had the same human rights as anyone else.
In awarding compensation of $25,000, the tribunal indicated that the award should not be minimal and should genuinely compensate the victim for the behaviour she suffered.
While New Zealand still has some way to catch up to Australia in terms of compensation levels in this area, these cases should serve as a wake-up call to employers that sexual harassment claims will be taken seriously by the courts, and awards of compensation are on the rise.
Susan Hornsby-Geluk is a partner of Dundas Street Employment Lawyers