Fay Calderone and Veronica Lee
As we digest the sobering results of the International Bar Association’s ‘Us Too?’ report which has our profession in Australia leading the pack in sexual harassment and workplace bullying, against a backdrop of already disconcerting global trends, a decision in the matter of Hills v Hughes  FCCA 1267 is telling.
In a contemptuous judgement of what was described as a “very grave example of sexual harassment” the court continued the recent trend of enforcing discrimination legislation and the Fair Work Commission in upholding the termination of the employment of perpetrators.
The intolerable will no longer be tolerated – not by our courts; not by employers; not by the community; and certainly not by our profession.
A very grave example of sexual harassment
Mr Hughes, the principal of a firm located in northern NSW, was found to have engaged in sexual harassment against a former employee, Ms Hill, in breach of the Sex Discrimination Act 1984 .
Federal Court circuit Judge Salvatore Vasta awarded Ms Hill $120,000 in general damages and $50,000 in aggravated damages. Ms Hill did not claim any past or future economic loss. The facts accepted by Judge Vasta where that Mr Hughes subjected Ms Hill’s to sexual harassment that included:
- entering her bedroom on the evening of a Sydney work trip in his underwear and then re-entered her room the following morning and watched her get dressed;
- coercing hugs from Ms Hill on a number of occasions by blocking her exit and putting her in a position where she felt she could not decline;
- sending many emails raising personal details about Ms Hill and signed off with “love” or hugs and kisses despite her assertions that she not want to be in an intimate relationship with him; and
- sending emails with veiled threats that her employment depended upon her entering into a sexual, or romantic relationship with him.
Judge Vasta noted:
The Respondent is a solicitor who not only should know the law, but should conduct himself in a very high standard befitting of his position in society. The Respondent is supposed to uphold the law. The law prohibits the very behaviour in which the Respondent, a lawyer, indulged… it is my view that the conduct of the Respondent is a very grave example of sexual harassment.
What the respondent submitted: It’s love not sexual harassment
What the Judge held: “The distinction advanced reflects a social myopia that, thankfully, is not reflected in the Act.”
During his evidence, Mr Hughes suggested he was not making sexual advances but rather, attempting to pursue a romantic relationship and pointed to several passages in his emails, an example of which was to the effect ““I want to be your lover and I am keeping my heart open for you” in response to which it was held:
“It would seem that the Respondent is attempting to differentiate an advance that is nothing more than sexual in nature against his proposal of a deeper, loving relationship. The distinction advanced reflects a social myopia on the part of the Respondent that, thankfully, is not reflected in the Act.”
What the respondent submitted: She asked for it.
What the Judge held: “It is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men.”
In making orders for aggravated general damages, his honour made the following observations about what was described by Ms Hills’ counsel as “slut shaming”. His honour said he would not use that term but could describe the Mr Hughes claims’ as “utterly outrageous” noting as follows:
“The Respondent attempted to put the blame for his behaviour upon the Applicant describing her as flirty and coquettish. In his statement, he has described a number of occasions that the Applicant wore alluring dresses to the office. In other parts, he describes the perfume that she wore. In other parts he describes that he could see her bra and part of her breasts when looking at the neckline in her dress. The Respondent described the Applicant as “encouraging” his behaviour because of those things. It is the mark of a bygone era where women, by their mere presence, were responsible for the reprehensible behaviour of men. The Sex Discrimination Act was enacted to help eliminate this sort of thinking.”
The Report summarised the findings from survey responses collected from individuals in the legal profession worldwide in relation to bullying and sexual harassment.
The IBA received almost 7,000 responses from more than 100 countries.
Alarmingly 47% of Australian female respondents indicated they had been sexually harassed compared to 37% globally and almost double the amount of Australian make respondents at 13% against a global trend of 7%. Also deeply concerning were reports of bullying at work – 73% of Australian female respondents and 50% of Australian male respondents reported experiencing bullying in their workplace.
While the statistics regarding the Australian legal profession are concerning, they should enable rather than paralyse the discussions that we, as a profession, are having. The decision of Judge Vasta plainly shows that we do not accept sexual harassment in the workplace.
We should celebrate that our profession is not shying away from difficult and important discussions. The statistics should be a reminder that the community is looking to us as the high watermark of best practice. Cultural change is slow and there is still much to do. Despite so much work on awareness campaigns our progress has been painstakingly slow and we are in no position to be complacent.
In order to shift attitudes and achieve change, education and discussion is essential. Bystanders must be empowered and equipped to act and policies must be promulgated and indiscriminately enforced.
As leaders we must not tolerate sexual harassment in the workplace against any employee at any time.
Fay Calderone is a partner at Hall & Willcox in the employment & workplace relations group. Veronica Lee is a lawyer in the same group.