Interpreting Vicarious Liability with a Broad Brush in Sexual Harassment Cases
Alternative Law Journal, Vol. 33, No. 2, 2008
6 Pages Posted: 8 Jul 2009 Last revised: 21 Jun 2018
Date Written: 2008
Provisions in Australia Federal and State/Territory anti-discrimination legislation make employers directly responsible for incidents of sexual harassment by employees in the course of their employment. This study looked at 29 sexual harassment matters heard in the Federal Court of Australia and the Federal Magistrates Court of Australia between 2001-2007 as well as 45 complaints received by the ACT Human Rights Office between 2001 to 2005. We examined the frequency with which employers are alleged to be vicariously liable, the outcomes of the cases and the judicial officers’ interpretation of the two main requirements of the vicarious liability section(s): namely that the act of sexual harassment be ‘in connection with’ the harasser’s employment and that ‘all reasonable steps’ were taken by the employer to prevent the harassment from occurring. The findings of the survey were that overall both Courts and the Commission take a broad interpretation in assigning vicarious liability. Particular attention is paid to the decision of Lee v Smith & Ors  FMCA 59 where the employer was found to be liable for sexual assault outside of normal work hours upon the complainant who was awarded $387,422.32.
Keywords: employers, vicarious, liability, harrassment
Suggested Citation: Suggested Citation