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Sexual Harassment - will your policy and procedures withstand challenge?
The recent decision of the Federal Court in Richardson v Oracle Corporation Australia Pty Ltd1,2 has provided employers with important guidance on what "reasonable steps" they should take to prevent sexual harassment in the workplace. Employers who take "all reasonable steps" to prevent sexual harassment in the workplace may have a defence to a sexual harassment claim and may not be held vicariously liable for the actions of their employees under various anti-discrimination legislation.
Background
Ms Richardson and Mr Tucker were both employed by Oracle and working together in a team that was established to bid for a multi-million dollar contract. Ms Richardson's sexual harassment case was based on the allegation that from her first face to face meeting with Mr Tucker, she was subjected to humiliating slurs and sexual advances from him.
Ms Richardson alleged that the course of conduct included no less than 11 different incidents. One incident in front of male colleagues included comments such as; "Gosh, Rebecca, you and I fight so much… I think we must have been married in our last life,” and, “So, Rebecca, how do you think our marriage was? I bet the sex was hot.”
These and other allegations were substantially accepted by the Federal Court.
Oracle's Code of Practice at the time of Incident
As part of its defence of the sexual harassment claim and as part of asserting that Oracle had taken "all reasonable steps" to prevent sexual harassment, Oracle led evidence to the Court that all employees received a copy of Oracle's "Code of Ethics and Business Conduct" when they joined Oracle and every two years they were required to complete an Oracle online sexual harassment training package. This package was a global package which applied to Oracle employees worldwide, it was designed in the United States and was said to be based on "global standards". This package: - made no reference to the legislative foundation in Australia for the prohibition on sexual harassment;
- made no clear statement that such conduct was against the law; and
- made no statement that an employer might also be vicariously liable for the actions of its employees.
The Court noted that the 2004 Code of Practice "Sexual Harassment in the Workplace: A Code of Practice for Employers" makes express reference to the desirability of including these statements in a policy.
The Court held that these elements were necessary "to bring to the attention of the employees" the consequences of a breach of the policy and to demonstrate the lively and real interest that an employer will have in scrupulous adherence to its warnings.
Findings
Mr Tucker's behaviour was found to constitute sexual harassment.
As a result of the key omissions in Oracle's policy and training package, Oracle was found to be vicariously liable for the actions of Mr Tucker. The omissions in the training package were said to be "important and easily included" and by not including these statements Oracle had not taken "all reasonable steps" to prevent sexual harassment.
Oracle was ordered to pay $18,000 in damages.
Lessons for Employers
This case is important as it provides clear guidance on what the Court considers to be "all reasonable steps" to prevent sexual harassment. Of great importance is to have a comprehensive sexual harassment policy that states that sexual harassment is unlawful, that sexual harassment is against Company policy, that employers may be vicariously liable for sexual harassment by an employee and that refers to applicable Federal, State and Territory laws.
We recommend that all employers revisit their policies, training and supporting systems to ensure they provide employees with the necessary guidance on and understanding of acceptable workplace conduct and interactions. This will put employers in the best position to defend sexual harassment claims or at least limit their liability in relation to such claims.
1 Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102
2 Whilst this decision has been appealed by the Applicant, the appeal is unlikely to change the key finding relating to Oracle's policies and procedures discussed in this e'News
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Important disclaimer: The material contained in this publication is of a general nature only and is based on the law as at 24 May 2013. It is not, nor is it intended to be, legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice. |
