Employer To Pay $170,000 For Sexual Harassment
July 9, 2019
A woman has been awarded $170,000 compensation after having suffered sexual harassment in her workplace. In what the Court described as a ‘mind-boggling’ imbalance of power, her employer was found to have taken advantage of her vulnerability and ‘relentlessly’ pursued her by bombarding her with emails.
The employer defended the claim on the basis that his actions were merely ‘romantic’ and that the woman had encouraged him by wearing alluring dresses and by her flirty behaviour such as flicking her hair in a sensual manner.
The Details Of The Sexual Harassment Case
The woman had separated from her husband and cared for her two children. She needed to find a job near to where the children’s father lived so that they could maintain a relationship with him, and so she commenced work at a law firm in the area. Her employer, the owner of the firm who was a divorced man with one child, was described by the Court as a lonely man who was seeking a relationship.
The Trip to Sydney
He had to travel to Sydney to handle a family law case and asked the woman if she would like to come with him. She believed that this was to be a work trip, and so she agreed as she felt she would be of assistance having done a lot of work herself on the case.
At the same time, the woman was engaged in ongoing discussions with her former husband about parenting issues and was to attend a mediation regarding those issues. Her employer asked her if she would like him to represent her at the mediation and she agreed. Of course this meant that the woman had to disclose a lot of her personal information to the employer. On the night before the mediation the employer phoned her and said something like, “I am very happy to be able to represent you. My feelings towards you have grown.” While she thought that the comment was inappropriate, she ignored what he said and hoped he wouldn’t speak like that to her again.
The next morning, being the day of the woman’s mediation, the employer sent her an email in which he wrote that it, “meant a lot to me not just professionally that you have come into my life,” and, “it is clear we both like each other personally and well, you know a lot of relationship started in the work environment something like 60% plus according to a report on the ABC.” About thirty minutes later he sent another email saying that, “I can talk for hours with you about this as I feel rightly I think I am the 100% comfortable with you??”
The woman sent her boss an email in which she said that she wanted the trip to be a work trip only and that she did not want a relationship with him. He read the email when he was horse-riding and said that when he later went to look at it again it was gone. He told the Court that he concluded that he woman had gone into the email system and deleted the email which he took as a gesture that she actually was interested in having a relationship with him. As the Court noted, there was no adequate explanation or reason for this other than ‘wishful thinking’ on his part.
Other emails were sent including one in which the employer told the woman that he had deleted the emails that he ‘should not have sent’ her, and which he followed by saying, “It was an honour representing you in your own matter. I am sorry it coincided with me expressing to you a need in me for intimacy.”
When the trip to Sydney occurred the employer organised for them to stay at his brother’s home. The woman had told her boss that she wanted her 16 year old son to go with them and so the arrangement was that she her son would sleep on a mattress on the floor of the bedroom in which she was staying. As it turned out, for some reason the woman’s son didn’t accompany them. On the first night they had dinner with some others and the employer announced around 10.00 pm that he was going to bed. When the woman herself went to her room about twenty minutes later she opened the door to find the employer lying on the mattress in his underwear. She was shocked and upset and told him to get out of the room. He then said that he ‘guessed’ he would have to sleep on the veranda outside and as he was leaving said, “Can I at least have a hug?” The woman did hug him but told the Court she did so reluctantly and that she felt upset and compromised and now believed that he actually had ulterior motives for having her come on the trip with him.
Told Him To Get Out
The next morning after showering the woman returned to her room wearing only a towel and found him again in the bedroom lying on the mattress. She told him to get out which he did.
The two were involved in the Court case that day and then in the evening she told him that she was upset about what had happened the night before. She told him that he had acted very inappropriately and that she had only come along to work and was not interested in a relationship. He told her he understood and asked whether she could still work for him which she confirmed. The following day they went to the markets together where she admired some jewellery that she thought her daughter would like. The man later bought it for her. The woman later flew home while the employer stayed in Sydney. According to the woman she felt compromised because she needed the job and wanted to do well at it because there weren’t many positions available in the region.
He Kept Persisting
The employer kept persisting with his behaviour despite the fact that the woman continually told him that she did not want to have an intimate relationship with him.
To make things worse, the employer knew from documents produced during the mediation of the woman’s own case that she suffered an anxiety condition. He sent further emails to her saying things like, “I got excited when you seemed interested in me. I feel I have blown things that but perhaps I am wrong. Anyway I just wanted you to know that I could have loved you.” He later sent an email with the heading, “It’s hard for me to not think of you” which then said, “My heading to this email says how I feel.” The woman again told her employer not to send emails of a personal nature as it was very stressful for her.
After this time, the two of them went to the local pub after work on a couple of occasions which the woman said was for the purpose of being ‘seen by locals and hopefully drum up business.” On one Friday at the pub she told him that she wanted to keep their relationship as a “great working relationship.” The woman gave evidence that she had hugged her employer on about six occasions at the end of the day as she was leaving the office. She said that he physically stood in her way so that she couldn’t get out of the room and would say something like, “Give me a hug,” so she felt she had no option.
Numerous more emails were sent by the employer saying things like, “You know you were romantically interested in me but I wanted to make sure that we could work together if it did not work out … I do know that if you decide to go with me romantically it will be the most beautiful thing ever for both of us,” and, “You talk of rewiring our brains so we do not smoke. I just think well if we were an item we could cuddle instead of having a cigarette.” What was of particular note was the line, “Please do not see this as pressure.” The Court stated that he was in fact applying pressure but was excusing his behaviour by telling her that he wasn’t. He also commented, “I have sustained myself by a delusion that I could afford to bring out a beautiful girl from Ukraine,” and then later wrote, “All cool if you want to just work for me about at the end of the day you would have a Ukranian woman working for me was well as you and you might be sorry you turned me down romantically.” To the Court this couldn’t be seen as anything but a threat that she would be replaced as an employee by a Ukrainian woman who could also be romantically involved with the employer. This was followed with further emails sent in an attempt to ‘woo’ the woman but also suggesting her employment would be better if she commenced a relationship with him. He told her of three women he believed were propositioning him but whose advances he refused because of her. “When Heidi first came to me she fiddled with her bra strap throughout the legal aid conference. Monica who worked for me for 2 years will give me the come on about her nails better than you actually and I would be 100% emotionally in control but you have got under my skin.”
Following this the emails became more sinister with threats that the woman’s work was substandard but it could be overlooked if she were in a sexual relationship with him. “To be honest I can see you would get there like in a timeframe I can live with if I was at full speed and we were lovers but your work output is not there otherwise.”
The stress of this situation caused the woman to consult a psychologist.
“She Was Interested In Me”
The employer considered it important to stress that the emails he sent the woman were all after work hours and that any ‘hugging’ happened at the end of the work day. As the Court observed, “It seemed to be suggested that this somehow made any conduct not ‘work-related’ and hence ‘not harassment’. He said that she was flirty and coquettish with him and wore alluring dresses and flicked her hair in a sensual manner all of which he took as an indication that she was interested in him. He claimed that before the Sydney trip the woman had said to him, “I expect to be loving you before the end of the week.” His reason for lying on the mattress in the woman’s bedroom was because it was a very hot night and if he had slept outside he would have been eaten alive by mosquitoes – even though it was the middle of winter. He claimed that the woman asked him to leave the room because he would have been ‘too much of a distraction.’ The next morning he was in the room because he thought he’d ‘left some papers in there’. The Court found his explanations to be ludicrous and bizarre.
The employer sought to make the distinction that he was not sexually harassing the woman, but was attempting to pursue a romantic relationship. As the Court stated, the law does not make such a distinction, and that the relationship he was seeking was clearly sexual in nature and could not have been anything other than deeply distressing for someone in the woman’s position. The Judge stated that the fact that he might view his actions as merely ‘romantic’ does not detract from the fact that his actions were, to the woman a daily nightmare that occurred because he was targeting her sexually as a woman and as his inferior. The sexual advances would have the effect of offending, humiliating or intimidating the woman who was socially and individually vulnerable.
Damages for Sexual Harassment
Evidence from a psychologist was that the woman suffered anxiety and depressive symptoms as a direct result of the sexual harassment, and a psychiatrist explained that he was suffering a psychiatric injury described as an adjustment disorder with mixed anxiety and depressed mood.
In awarding damages the Court stated that the man’s conduct was relentless and that he took advantage of the woman’s vulnerability having no regard to the position she was in but acting according to his own desires as if they were the only things that mattered. This was a very grave example of sexual harassment. The Judge awarded $120,000 in general damages in addition to which a further $50,000 was given in aggravated damages. Part of the reason for the additional amount was that the employer had tried to put the blame for his behaviour on the woman saying she was flirty and wore alluring dresses to the office.
As the Court clearly stated, “Sexual harassment is a social practice of enforced inequality that demeans individuals on the basis of sex. This is especially so in the workplace,” and that sexual harassment law, “seeks to address those workplace power imbalances that result from fear, silencing and the harms that flow from sexual hierarchy.” Anyone who has been the victim of such harassment should seek legal advice. Websters Lawyers have experienced solicitors practicing in the areas of Human Rights, Equal Opportunity, Bullying and Sexual Harassment claims and can provide a free initial interview. Arrange to speak to a lawyer through our contact page or call 8231 1363.