Sexual Harassment: The Mr Darcy Case

Employees have a legal right to a workplace free from sexual harassment. The Federal Court of Australia recently considered sexual harassment in the workplace in the case of Hughes v Hill [2020]. The case attracted widespread notice due to the employer’s characterisation of his conduct as akin to the romantic overtures of Jane Austen’s fictional character, Mr Darcy. The case is also notable for clarifying sexual harassment under federal law. This article explains the legal significance of this case for sexual harassment in the workplace.

Sexual Harassment

Sexual harassment is an unwelcome sexual advance, request for sexual favour or other unwelcome sexual conduct. Under the Fair Work Act 2009, these unwelcome acts only constitute sexual harassment if a reasonable person in the circumstances would find this conduct offensive, humiliating, or intimidating. This means that the definition of sexual harassment varies depending on the specific circumstances.

Section 28B of the Sex Discrimination Act 1984 prohibits the sexual harassment of a current or prospective employee, contractor, or co-worker. Examples of prohibited conduct include:

• Unnecessary familiarity and suggestive language;
• Explicit physical contact and unwelcome touching;
• Prolonged staring or leering;
• Display or dissemination of sexually explicit images and content;
• Unwanted romantic overtures; or
• Intrusive commentary about someone’s body or private life.

A person in breach of this section of the Act is also considered to have unlawfully discriminated against the employee under the Australian Human Rights Commission Act 1986. As such, the Federal Court or Federal Circuit and Family Court of Australia can make orders, including ordering compensation for any damage or loss the employee suffers because of the sexual harassment.

Sexual harassment cases often involve an employer using their power to harass an employee. However, there is no requirement for a harasser to be in a position of power of the employee. It is sufficient that the harassment occurred in the workplace and therefore interfered with the employee’s ability to work in safety and comfort. It is also crucial for employers to understand that they can be vicariously liable for their employee’s actions, even if the sexual harassment occurs outside the workplace and after work hours. An employer can minimise their liability claim by demonstrating they have taken all reasonable steps to prevent sexual harassment in the workplace and responded appropriately to resolve any incidents.

Case Study

In the case of Hughes v Hill [2020], Mr Hughes employed Ms Hill in his Byron Bay law firm as a paralegal. He also acted for her during mediation with her ex-husband, so he had access to her personal and confidential information. There was a clear power differential between the law firm principal and his employee, especially as legal jobs were scarce in northern NSW, and he promised to train her as a solicitor.

In June 2016, the complainant resigned and filed a sexual harassment claim with the Australian Human Rights Commission. The parties did not resolve the matter in the AHRC. Ms Hill then filed with the Federal Circuit Court. The trial judge determined that Mr Hughes had engaged in a relentless campaign of sexual harassment against Ms Hill, based on the following facts:

• He sent repeated, unsolicited messages to Ms Hill offering romantic relations and professing his love for her;
• While on a work trip to Sydney, he entered her hotel room and waited on her bed in his underwear;
• He obstructed her from exiting her office until she hugged him; and
• He made thinly veiled threats that her employment depended on them entering a romantic relationship.

Mr Hughes was ordered to pay Ms Hill $170,000 in damages. When Mr Hughes appealed to the Federal Court, he did not refute Ms Hill’s description of events, but he denied that they were “sexual” as defined by the Sex Discrimination Act. He also argued that the damages were manifestly excessive.

The Full Court of the Federal Court dismissed the appeal and Mr Hughes’ defence that his conduct was a romantic campaign akin to the actions of Mr Darcy from Pride and Prejudice. Justice Perram found that the facts of the case did not reflect misguided romantic conduct, as the facts were “as far from a Jane Austen novel as it was possible to be”. He further pointed out that whatever ambiguity might exist over the definition of an unwelcome sexual advance, it definitely includes an employer waiting for his employee in her bedroom dressed only in his underwear. Justice Perram denied that the award was excessive, saying that if the court had been asked to reconsider aggravated damages, he would have awarded a larger sum.

This case demonstrates the court’s increasing tendency to award and uphold orders for general and aggravated damages for sexual harassment cases. If you have any questions about sexual harassment in the workplace, please contact the specialist employment law solicitors at Armstrong Legal on 1300 038 223.