Prevailing community standards are influencing the courts' decisions to award higher damages to sexual harassment victims, say experts
The president-elect Donald Trump has recently helped bring sexual harassment into the spotlight.
However, that’s not the only reason why it’s a topical subject, according to Lander & Rogers Partner Derek Humphery-Smith.
He added that there are multiple surveys and reports currently available regarding the rates of sexual harassment in the workplace.
“Overall, the data confirms what we already know as practitioners: sexual harassment is still prevalent in the workplace," he said.
Partner Aaron Goonrey added that the recent shift in sexual harassment damages includes courts now starting to award larger sums. The amounts awarded traditionally have typically been quite low and in line with personal injury damages.
"Where sexual harassment cases are pursued in courts, the question of determining appropriate compensation can be difficult,” he said.
“The damage suffered by a victim may not be obvious or tangible, and courts have typically acted conservatively, with damages for hurt and humiliation, or pain and suffering generally in the range of $5,000 to $20,000.”
Goonrey added that it is clear that prevailing community standards are influencing the courts' decisions to award higher damages to victims.
Indeed, recent case law demonstrates that courts are more inclined to award damages in excess of $100,000, or even over $1 million.
The idea is that these high sums will act as a 'corporate deterrent' to inappropriate workplace behaviour, as well as encourage organisations to implement and maintain appropriate workplace arrangements, including policies and training.
The lawyers’ advice for employers is that, ultimately, it is not just about mitigating the risk of a sexual harassment claim succeeding.
Instead, it is really about how to transform an organisation's culture so that it offers a safe working environment for its employees.
"Where an employer has taken all reasonable and genuine steps to prevent sexual harassment in its workplace, it can avoid vicarious liability for the actions of its employees,” said Humphery-Smith.
“Otherwise, the employer stands in the shoes of the harasser and can be liable for their actions".
The lawyers’ offer the following tips for a successful cultural transformation: