Sexual Harassment

In the recent court decision of Hill v Hughes [2019] FCCA 1267, the Federal Court Circuit Court and the Full Federal Court on Appeal (Hughes trading as Beesley and Hughes Lawyers [2020] FCAFC 126) emphasised the importance of addressing sexual harassment in the workplace and the seriousness of breaches of the Sex Discrimination Act 1984 (Cth).

Justice Vasta ordered a new highest award of aggravated damages in a sexual harassment claim.

Background Facts

Ms Hill, a single mother described by the FCCA as a ‘socially and individually vulnerable’, was employed as a paralegal by Mr Hughes, a senior legal practitioner and owner of a small law firm, Beesley and Hughes in New South Wales.

In 2015, Mr Hughes employed Ms Hill as a paralegal, promising that he would eventually train her as a solicitor. Ms Hill had recently been admitted as a lawyer.

Not long into the employment relationship, Mr Hughes acted as Ms Hill’s legal representative at a family law mediation, and he gained personal and confidential information about Ms Hill, including her relationship with her ex-husband, relationships with other men after her separation, apprehended violence orders and Ms Hill’s suffering from an anxiety disorder. This contributed to the power imbalance between Mr Hughes and Ms Hill, which Mr Hughes subsequently exploited through his actions.

From mid-July 2015 (just 2 months after Ms Hill started working for Mr Hughes) until late 2016, she endured the persistent pursuits of Mr Hughes, which included:

• Sending her emails professing his love for her and proposing a romantic relationship;
• Whilst on a work trip to Sydney, entering Ms Hill’s room and waiting for her on a mattress in only underwear, and requiring a hug from her before agreeing to leave;
• On the same trip, waiting for Ms Hill in her bedroom when she returned from a shower dressed only in a towel; and
• Repeatedly requiring Ms Hill to hug him at work.

In response to Ms Hill’s objections, Mr Hughes at one point made a veiled threat that he would continue to “try [his] best with [her] training a long as she assured him that she would “not make a complaint or sue [him].”

In October 2015, Ms Hill directly confronted Mr Hughes, expressing that his behaviour was harassment, however he continued to send her consecutive emails without any reply on her part.

The key issue which was considered by the FCCA, was whether sexual harassment had occurred. That is, according to section 28 of the Sex Discrimination Act 1984 (Cth), whether there were unwelcome sexual advance or request for sexual favours, that a reasonable person, having regard to all the circumstances, would anticipate the possibility of causing offence, humiliation, or intimidation.

Findings of the Courts

The FCCA found that the persistent sexual advances through email communication, directly in person and the conduct that occurred on the Sydney trip amounted to sexual harassment, despite Mr Hughes describing the conduct as merely a proposal for a romantic relationship. Mr Hughes, in his submissions to the Court, compared his romantic gestures to those of famous, Mr Darcy from Jane Austen’s Pride and Prejudice.

Mr Hughes appealed the FCCA decision to award damages to Ms Hill, and on appeal, Justice Perram of the FCAFC gave short thrift to Mr Hughes’ argument, labelling it as “delusional” and stating that “the facts of this case are about as far from a Jane Austen novel as it is possible to be.” He rejected Mr Hughes’ contention that he merely wanted to be Ms Hill’s “platonic lover”, agreeing with the trial judge that the “tawdry events” described in evidence clearly constituted a determined sexual pursuit of Ms Hill.

In doing so, Justice Perram dismissed Mr Hughes’ contention that “misguided, lofty-minded romantic conduct cannot constitute sexual harassment.”

In determining whether the advances of Mr Hughes were “unwelcome”, the FCCA applied a subjective assessment and found that the conduct was clearly unwelcome. The Court outlined the factors which pointed to this finding, including that Ms Hill asked Mr Hughes to leave her bedroom on both occasions, and due to the language in some of Mr Hughes’ emails stating “I know I said I was not going to write to you again” and “I have been very careful not to harass you.”

The FCCA concluded the conduct was not only subjectively unwelcome, but it was also objectively unwelcome, and that Mr Hughes knew so.

When considering whether the elements of sexual harassment were made out, the FCCA considered the personal “circumstances” and vulnerabilities of Ms Hill known to Mr Hughes.

Section 28A(1A) of the Sexual Discrimination Act 1984 (Cth) very broadly defines “circumstances”, and most importantly include the relationship between the harasser and the harassed. Not only was Mr Hughes the employer of Ms Hill, which already indicated an imbalance in their relationship, but Mr Hughes was very advanced in the legal profession, while Ms Hill was new to the profession as a paralegal. The Court outlined that the competition in gaining alternative employment in the industry, along with the difficulties in raising two children as a single parent, meant that Ms Hill was “socially and individually vulnerable.”

The imbalance between Mr Hughes and Ms Hill was further evident due to the lawyer/client relationship of Mr Hughes when  representing Ms Hill at the family law mediation. Mr Hughes was aware of the apparent stresses Ms Hill was going through in life, yet continued to sexually harass her, which was made worse by threatening her position at the firm.

The FCCA interpreted the email that Mr Hughes sent to Ms Hill stating “assure me you will not make a complaint or sue me”, followed by “I always fight the good fight btw”, was a threat and the FCAFC relevantly added “that it was a threat made by an experienced lawyer to a less experienced employee whose employment options were limited and who, to his knowledge was suffering from an anxiety disorder.” The court commented that Mr Hughes was well aware that Ms Hill was both financially and socially disadvantaged and to make any threat of the kind was exploitative of the significant imbalance between the two of them.

The FCCA concluded that despite the fact that Mr Hughes may have thought his action were romantic, to Ms Hill, “it was daily nightmare that occurred because the Respondent, as a man, was targeting her sexually, as a woman and as his inferior.” Further to this, his knowledge of her anxiety disorder made his repeated and relentless behaviour even more sinister.

In their summary, the FCAFC stated that the sexual harassment by Mr Hughes “would have exposed Ms Hill to almost intolerable stress as any decent person would have realised and particularly so in the case of Ms Hill given that he knew she had an anxiety disorder. It is conduct of the most reprehensive kind.”

As a result of the Court’s finding that Mr Hughes had engaged in sexual harassment, Ms Hill was awarded General Damages in the sum of $120,000, and aggravated damages in the amount of $50,000.