A study led by eminent socio-legal and feminist scholar Emerita Professor Margaret Thornton FAAL FASSA from The Australian National University (ANU) College of Law will examine the impact of costs and damages in sexual harassment cases across Australia for the federal Attorney-General's Department.
The research consultancy follows the 2020 Australian Human Rights Commission’s Respect@Work report and the Federal Government’s pledge to accept its recommendations, one of which commits it to “further research on damages in sexual harassment matters and whether this reflects contemporary understandings of the nature, drivers, harms and impacts of sexual harassment”. This work will complement the upcoming Attorney-General's Department consultation process on possible legislative reforms, including consideration of reforms to costs in sexual harassment matters.
In Australia, sexual harassment is covered under sex discrimination or anti-discrimination legislation across nine jurisdictions (six states, two territories and the federal level).
Professor Thornton’s comparative study is the first of its kind to comprehensively examine the history of damages and costs in sexual harassment litigation.
“We want to see what impact damages have, particularly whether they have a deterrent effect to would-be harassers and signal to employers that they could be vicariously liable for an employee who harasses another,” says Professor Thornton.
“The study is doctrinal and empirical, encompassing an analysis of the interpretation of various courts and tribunals to see how they compare.”
The empirical aspect of the study is both qualitative and quantitative, the qualitative entailing interviews with legal practitioners to uncover their experiences in sexual harassment cases.
The quantitative aspect involves a random poll gauging the attitudes of the public on a range of sexual harassment issues. “
"Given community attitudes are an important factor in the assessment of damages in this context, ascertaining those attitudes through polling is important,” says Professor Thornton.
The Respect@Work report shed light on the prevalence, nature and reporting of sexual harassment in Australian workplaces, raising questions about whether damages under current legal frameworks reflect contemporary understandings of the nature, drivers, harms and impacts of sexual harassment.
In March 2021, a research article published in the Federal Law Review found that costs for plaintiffs in sexual harassment litigation are “often very prohibitive”. The study was co-authored by recent ANU graduate Madeleine Castles (BA/LLB (Hons) ’21), Kieran Pender (honorary lecturer, ANU College of Law), both of whom are collaborators with Professor Thornton on the ANU study.
Professor Thornton says the barriers to justice for those subjected to sexual harassment are present even before plaintiffs have their day in court.
“There’s a very high rate of underreporting and many people subjected to sexual harassment are reluctant to complain. For many, there is a perception that they will be punished further and it’s not worth going through the trauma,” she says.
“I remember one woman (in the legal profession) telling me she had to leave the state because she couldn’t complain about her employer; she would have been black-balled and felt she had no option but to go elsewhere.
“For a long time, the damages were very low and that did say something about the fact that the harm of sexual harassment wasn’t regarded as important,” she adds.
Other collaborators for the study include Kate Eastman AM SC (barrister, New Chambers) and Professor Michelle Ryan (director, ANU Global Institute for Women’s Leadership). The Institute brings together rigorous research, practice and advocacy to better understand and address the causes of women's underrepresentation in leadership positions across sectors and countries, including the impact of sexual harassment and discrimination in the workplace.
“One of the major barriers to gender equality is women feeling unsafe in their workplaces. Ensuring that women feel confident in taking action when they are harassed at work is an important step in making workplaces safe for everyone,” says Professor Ryan.
The research report will be presented to the Attorney-General’s Department in March 2022. Its findings will subsequently be published in an appropriate journal.