Laws prohibiting sexual harassment have been with us for decades, but there is now broad consensus that they are not fit for purpose. Sexual harassment continues to plague our workplaces. This month, the Albanese government will seek to enact reforms that will improve the law. This includes the creation of a positive duty for employers to take steps to eliminate sexual harassment.
It is a hugely important step, with changes brought about by people bravely speaking out about their experiences of sexual harassment and discrimination and the tireless work of the sex discrimination commissioner, Kate Jenkins. The government and Jenkins are to be commended for taking concrete action to address workplace sexual harassment.
But the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) bill, while long overdue, misses a significant opportunity to increase access to justice. It proposes changes to the rules on legal costs which will not address the current problems people face in bringing claims. More consultation and refinement could ensure reform makes a positive difference.
Currently, federal anti-discrimination law operates under what is known as the adverse costs model. A person who experiences sexual harassment who successfully sues their employer will receive most of their legal costs back, paid by their employer and the perpetrator, in addition to any damages awarded by the court. But if they are unsuccessful – and even strong cases may fail on technical points – they face the risk of having to pay their employer’s legal costs, which could run into the hundreds of thousands of dollars. For people struggling with the ongoing trauma of sexual harassment, this prospect can be terrifying.
In a context where power imbalances and resource inequality pervade, the risk of an adverse costs order deters many women from proceeding with often very strong claims, or leads to them settling their matters for small amounts of compensation. This has led to limited litigation, and has perpetuated the “hidden” nature of sexual harassment in Australia.
As lawyers working in this space, we frequently represent women who have been discriminated against, sexually harassed, or assaulted at work. Every day we hear from women who have been sexually harassed by their bosses, clients or colleagues. By the time we meet clients for the first time, the harassment has often significantly harmed their health and employment. They want it to stop, and they want justice. That should not be too much to ask.
One client who experienced both sexual harassment and race discrimination was constantly subjected to comments from her supervisor about the attractiveness of women of her race. Her supervisor told her he couldn’t concentrate because she was so attractive. The client experienced significant psychological harm from the behaviour. When conciliation was unsuccessful, the client decided not to take the matter to court because of the potential for an adverse costs order – a financial risk she could not afford.
This is a story we hear every day and one we need to meaningfully address to improve justice in this area.
The Respect@Work bill offers some solutions, but fails to address the huge challenges regarding access to justice that women face in bringing claims.
The bill provides for a default position of “costs neutrality” for all federal discrimination matters – that is, the individual and their employer paying their own legal fees – with discretion for judges to award costs depending on the circumstances. While this approach attempts to help women who are deterred by the threat of an adverse costs order to litigate matters, it still creates costs uncertainty which will continue to be a barrier to litigation. It also means that women who succeed in their sexual harassment case will be worse off, because they may have to pay their own legal costs. This does not resolve the barriers to litigation or increase access to justice.
The proposed shift to costs neutrality may have benefits in some circumstances but might also make things worse. We know this from experience elsewhere – state and territory anti-discrimination tribunals have adopted a costs-neutrality model. Legal costs, which include filings fees and the costs of medical reports, can sometimes outweigh awards of compensation. Deep-pocketed employers are encouraged by this system to pursue delaying tactics, which increases costs for the complainant.
We are concerned that the bill, in taking this costs approach to a relationship that is characterised by endemic inequality, only serves to entrench that inequality.
There is a better way. A coalition of voices in the anti-discrimination sector – lawyers, law firms, community legal centres, academics, trade unions, activists and policy experts – are all calling on the government to instead adopt an “equal access” asymmetrical costs model. This would protect women from the risk of adverse costs if they lose their claim, but also enable them to recover costs if they win.
This costs model is not novel – it has existed for almost a decade in federal whistleblowing law. Those provisions were enacted in recognition of the public interest in whistleblowers speaking up. So, too, should the law protect those who expose sexually hostile and unsafe workplaces, who speak up about the societal scourge of sexual harassment and other forms of unlawful discrimination.
The Respect@Work bill is a major step forward. It will help prevent and address sexual harassment in Australian workplaces. But its costs provision requires more thought in order to properly increase access to justice for victims of workplace sexual harassment. The bill strengthens legal protections for those experiencing sexual harassment at work but does not markedly improve their ability to enforce those rights in practice.
It is not too late to change course. We urge the government to listen to those who assist and act for women who have been sexually harassed at work, who hear their stories day in, day out. We urge the government to ensure that these women can use the law to access real justice.
• Emma Golledge is director of Kingsford Legal Centre, a community legal centre at the University of New South Wales that operates a specialist sexual harassment legal service. Josh Bornstein is the national head of employment law at Maurice Blackburn Lawyers
