Harmers Workplace Lawyers says that recent cases of complaints of sexual discrimination and harassment reveal a significant rise in the level of compensation payouts. Also of concern is the observation that the worst perpetrators of discrimination are often likely to be at the executive or management level. 

These trends should prompt companies to tighten their Equal Employment Opportunity (EEO) policies and training and ensure their reach is extended to the company’s most senior executives.

Emma Pritchard, Partner at Harmers Workplace Lawyers, said that recent cases, including the Christina Rich (former PwC executive) case settled earlier this year, as well as the recently settled case with Channel Nine’s Christine Spiteri, and the unusual case of Tan v Xenos, show a definite increase in the amounts being claimed as courts recognise the nature of the complaint itself, the workplace environment, the complainant’s career and future earnings, the handling of the complaint (including potential for victimisation) and the complainant’s quality of life.

“The figures are quite large, particularly for executives who often claim for loss of income and for future economic loss, but increasingly also for people in lower-paid positions who are successfully claiming significant amounts for pain and suffering. For instance in the case of Tan v Xenos, Dr Caroline Tan was a third year neurosurgery trainee who had been sexually harassed by a superior. She was awarded $100,000, a sum previously unheard of considering her relatively low wage as a trainee,” said Ms Pritchard.

Ms Pritchard also observed that many of the recent EEO claims are being made against senior managers and directors individually, suggesting that EEO policy and training is not being taken up by senior executives. “They may have been required to do some form of discrimination awareness training when they first started in a company twenty or thirty years ago, but they haven’t done anything since. This is compounded by the mistaken belief that senior executives are exempt from ongoing professional development and training under the pretence that they no longer need to learn.” 

“Senior executives and managers are also the people that staff members approach with complaints of harassment or discrimination and they are also often required to investigate these instances. If they are not appropriately trained on these processes, the opportunity for these complaints to be mishandled is increased.

“For these reasons, we suggest to clients that they hold separate sessions for senior staff to go over their obligations, rights and company policies. Companies need to make it known to senior personnel that their position doesn’t afford them any special privileges and that they can and will be held accountable for their behaviour,” she said.

Ms Pritchard said companies should be aware of the legal implications of inappropriate and insensitive behaviour on the part of their employees and make sure they conduct regular training and reviews of their EEO policies. “If there is ever an instance of sexual harassment or discrimination in the workplace, the courts will want to understand what measures were in place to avoid these kinds of issues. If the court finds that not enough was done, then the company can also be held liable for any incidents.

“In the end, companies cannot control the behaviour of their staff but they can certainly communicate company policy and facilitate training so that everyone understands their rights and obligations. Updating policy and regularly undertaking training and reviews will go a long way towards minimising the risk of liability for a company in EEO cases,” said Ms Pritchard.

Ms Pritchard said that companies should take the following steps to minimise their risk of and liability for EEO claims:

Assess awareness of EEO obligations, exposures and risks at all levels, including management and senior executives

Conduct an audit to determine whether the EEO system currently in place within the business is optimal, or whether there is room for improvement

Address any key areas of improvement and develop an implementation plan. Above all, the plan should be implemented and not allowed to remain only as a “paper” policy

Conduct regular audits and training to make sure staff are aware of new trends and remain aware of their obligations and rights