When does behaving like Mr Darcy become sexual harassment?

It is well known that being polite in the workplace is important to build rapport, improve team dynamics and establish a positive workplace culture. Being employed in a workplace where your bosses and colleagues are polite and friendly is a dream come true for most people.

So, when does being polite and friendly cross the line into sexual harassment?

The Federal Sex Discrimination Act 1984, describes a person as sexually harassing another if:

• they make unwelcome sexual advances, or unwelcomed requests for sexual favours to another person; or
• engage in other unwelcome conduct of a sexual nature to another person.

The person will only have sexually harassed someone in circumstances whereby a reasonable person, having regard to all the relevant circumstances, would have anticipated the possibility that the person would be offended, humiliated or intimidated by the conduct.

The Act provides a broad list of circumstances one must consider when determining if there was a possibility the person may have been offended, humiliated or intimidated by the conduct. These include sex, age, sexual orientation, relationship status, religious belief, ethnicity of the person harassed, the relationship between the two parties, any disability of the person harassed and any other relevant circumstances.

Essentially, it is unlawful for a person to sexually harass another person in any workplace, organisation, club, educational institute (including adult students and staff members) or in the course of receiving goods, services or facilities (including accommodation).

A recent decision of the Federal Court of Australia ordered a boss to pay his (former)employee $120,000 in general damages and $50,000 in aggravated damages for sexually harassing her.[1] The employee was relentlessly sexually harassed by her boss on a number of occasions including:

• Sending multiple emails to the employee proposing that they begin a romantic relationship. The emails included such comments as: the employee was not good at her job ‘since they were not lovers’; and ‘expressing my feelings is not harassment’;
• When travelling for work, unbeknown to the employee, the boss waited in her room on her bed in only his underwear. When the employee returned to her room, the boss would only leave if she gave him a hug; and
• Physically preventing the employee from leaving the office unless she gave him a hug first.

The boss’s engaged in unwelcome conduct of a sexual nature and unwelcome sexual advances to the employee. The court noted the profound power imbalance between the boss and the employee. The boss, a self-confessed ‘sleek kangaroo’, argued his behaviour was not sexual harassment but more ‘like Mr Darcy in Pride and Prejudice’. The court rejected the boss’s behaviour was ‘like a Mr Darcy’ and was about ‘…as far from a Jane Austen novel as possible…’.

If you are or have experienced discrimination or sexual harassment recently, please contact Rowan Skinner & Associates Lawyers to discuss.

[1] Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020)