United States: Damages In Sexual Harassment And Bullying Claims – The Stakes Are Rising

Last Updated: February 13 2017
Article by Justine E Turnbull and Shomaice Zowghi

In the world of anti-discrimination law awards of money against employers for psychiatric injury or illness caused by sexual harassment by one of their employees have been rare and low, typically in the range of $12,000 to $20,000. Similarly, the anti-bullying jurisdiction of the Fair Work Commission has seen limited orders made to prevent further bullying where claims have been made, and compensation is not available as a remedy for bullying behavior.

But things are changing, especially in the area of sexual harassment where awards of damages for psychiatric illness are increasing. This reflects change in societal attitude towards this type of conduct that has (finally) started to be reflected in judicial pronouncements.

The spectrum of mental harm that can be experienced by victims of sexual harassment or bullying covers depression, anxiety and post-traumatic stress disorder (PTSD) any of which can be debilitating for a significant period.

Who is at risk?

Some of the common features of cases dealing with sexual harassment and bullying are:

  • Excessive job demands, inadequate resources, lack of clarity regarding role or degree of autonomy
  • Toxic workplace cultures where employees 'learn' from the top that bullying and harassment is acceptable workplace conduct, known as social or emotional contagion, this can be conscious or unconscious
  • Entrapment of a person in a job due to fear of reprisal (such as failure to provide support for alternative employment) from a complaint
  • Unconscious bias
  • Mismanagement of change process, that is, not in a transparent, precise and timely way
  • Existing interpersonal conflicts and a lack of effective internal conflict resolution mechanisms and training
  • Individual psycho-pathologies that do not support team work or group cohesion. In a society where it has been asserted up to 10% of the population suffer from antisocial personality disorder, borderline personality disorder, histrionic personality disorder or narcissistic personality disorder it would seem that most, if not all, workplaces are exposed to legal risk of claims regarding bullying or harassment arising from this factor.

Where senior management communicates effectively that certain conduct is not acceptable, and role model behavior consistent with this message, the conduct will be less likely to occur.

Legal avenues

Often misunderstood in this area, there are a number of avenues that can be followed in seeking compensation or other redress for harm arising from sexual harassment or bullying, including:

  • State and Federal anti-discrimination law including anti sexual harassment legislation
  • Anti-bullying provisions in the Fair Work legislation
  • Unfair dismissal provisions of the Fair Work legislation
  • General protections/adverse action provisions of the Fair Work legislation
  • Workplace health and safety legislation
  • Workers' compensation schemes
  • Civil claims including breach of contract
  • Criminal claims.

Sexual harassment

Criminal Law Prosecution

WHS Prosecution

FWC Claim

– AB
-UD
-GP

Civil Claim

-Tort
– Breach of contract

Worker's Compensation
Claim

Anti-Discrimination Claim

– State
– Federal

Bullying

Recent decisions

Since 2014 judicial decisions have demonstrated a willingness to award significantly higher amounts in damages to victims of sexual harassment and bullying. This reflects our society's increased sensitivity to mental illness, greater recognition of the equality between men and women and a reduction in the negative stigma associated with workplace complaints. They also expressly recognise that this type of conduct results in compensable loss of enjoyment of life and psychological distress.

The recent decisions where employers have been required to pay significant sums to employees who have suffered injury due to bullying and/or harassment in their workplace include:

Richardson v Oracle where Ms Jane Richardson was awarded $130,000 for general damages and economic loss due to sexual harassment by her co-worker in the form of multiple humiliating and sexually explicit comments and sexual advances. The injuries suffered by Ms Richardson included changes in her demeanor and physical condition and a decline in sexual intimacy between her and her husband.

Collins v Smith where Ms Amanda Collins was awarded $332,280 for general damages, lost earnings, future earnings and expenses due to prolonged, persistent, unwelcome sexual conduct including touching by Ms Collins' only manager in the workplace. The conduct resulted in Ms Collins suffering PTSD, major depression and anxiety. The conduct also negatively affected her relationship with her husband and led her to resign from her employment.

Matthews v Winslow where Ms Kate Matthews was awarded $1,360,027 for psychiatric and physical injury and loss of past and future earnings due to significant abuse, bullying and sexual harassment by other employees of and contractors to her employer which included inappropriate conduct by her direct supervisor. Ms Matthews suffered a major depressive disorder, significant, chronic PTSD and Bipolar disorder. Ms Matthews also suffered a jaw injury from grinding her teeth due to her distress.

Eaton v Tricare where Robyn Eaton was awarded $436,000 in damages including on the basis that Ms Eaton would likely never be able to work again due to her injuries caused by bullying at work by her manager. Ms Eaton had a pre-existing anxiety disorder that was exacerbated by the workplace conduct resulting in a major depressive disorder, prominent anxiety and PTSD.

STU v JKL (Qld) where an unnamed applicant was awarded $313,000 in general damages and past and future loss of earnings due to sexual harassment and assault by a contractor to the employer which resulted in the woman suffering PTSD and another depressive illness. She also developed a problem with alcohol abuse, anxiety, difficulty sleeping, an inability to drive and a loss of personal interest.

There are also recent cases where employers have been held criminally liable for inappropriate workplace conduct including bullying and sexual harassment.

Driver of large awards

The main driver of these awards of significant damages is a recognition that injury, illness and loss of enjoyment of life due to sexual harassment and bullying should be compensated in the same way as in personal injury cases where courts have long been awarding six and seven figure amounts for psychological injury. Having said that, in each of the cases we have described the applicants produced significant expert and other evidence of their loss including very personal details of their lives which, we suggest, many in similar situations would be unwilling to reveal.

Strategies for employers

So, how to reduce your exposure, as an employer, for vicarious acts of your employees that constitute sexual harassment or bullying? Our suggestions include:

  • Consider pre-employment screening that can reveal relevant psycho- pathologies in job applicants. However, this should be done very carefully and with reference to the inherent requirements of the position being recruited for to avoid potential claims by job applicants of discrimination or otherwise
  • Implement and regularly update relevant policies, ensure they are accessible to and understood by all employees
  • Undertake relevant training and education programs, face to face is always best
  • Have a clear complaints mechanism and best practice investigation procedures
  • Ensure appropriate conduct is role-modelled at senior levels within the organisation.

Conclusion

In light of the changing landscape and in the interests of having a healthy and safe workplace, there needs to be a complete shift in the collective consciousness of the private sector and government organisations in relation to stamping out bullying and sexual harassment in the workplace.

Managing the risk of psychological injury requires a strategic decision to invest in the corporate culture with a view to keeping employees safe, reducing staff turnover and becoming an employer of choice. In the context of the recent large award cases, employers should be perceiving bullies and sexual predators as major financial and reputational liabilities to a business and acting and investing in accordance with that conviction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Justine E Turnbull
Shomaice Zowghi
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions