For some reason, we have gotten our most interesting cases from Australia. Remember the employee who fell from a chandelier while engaging in sex – and received a workers comp award from an Australian court?
Our news today is not that salacious – but nonetheless interesting.
Seems that what the Australian Federal Court called an “arrogant” contract accountant was found to have violated the Sex Discrimination Act 1984 by sexually harassing and assaulting a female employee of the business where he worked on a contract basis.
The accountant, who appeared pro se, made one argument that he could not be liable because he was not an “employee” of the business, but an independent contractor. Not so, said the Court. This argument might fly under the US’s Title VII and related statutes, but only as it applies to the liability of the employer. We have written a lot about employer liability for sexual harassing behavior committed in the workplace not by supervisors or co-workers, but by non-employees; it is immaterial who or what causes the hostile workplace – it is up to the employer to remedy the situation if made aware of it or else the employer is liable. While the employer may be liable for hostile work environment even if the harasser is not an employee, the non-employee harasser has no liability under Title VII (although there certainly may be criminal or tort liability for the act of harassment or assault).
However, Australia’s Sex Discrimination Act is different than Title VII. The status of the harasser is not material – the Act’s liability provisions cover not only employees but all other “workplace participants,” including contractors. In which case the harasser may be liable.
The accountant made a second argument – one which caught our attention. He argued that he was not liable since the allegation was that he did not harass the employee in “the workplace” — but only in the office corridor. The Court refused to entertain this defense, and awarded the employee $476,000, which included $110,000 for pain and suffering. The Court found that a “workplace” includes not only the actual offices where the employees work but also the common areas, such as the hallways.
This seems obvious to us — but we are not lay people.
As a postscript, the accountant also argued that he should not be liable for harassing the employee at a bar after work. The Court found that under the Act there was a common workplace shared by the employee and the harasser, which was sufficient to confer liability upon the harasser.
