Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

2021 ◽  
pp. 0067205X2199314
Author(s):  
Madeleine Castles ◽  
Tom Hvala ◽  
Kieran Pender
Keyword(s):  
Sexual Harassment ◽  
Qualitative Interviews ◽  
Sex Discrimination ◽  
Economic Loss ◽  
Case Law ◽  
Seismic Effect ◽  
Societal Norms ◽  
Pain And Suffering ◽  
Judicial Recognition ◽  
General Range

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘ Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

scholarly journals Can Law Address Intersectional Sexual Harassment? The Case of Claimants with Personality Disorders

Laws ◽  
2019 ◽  
Vol 8 (4) ◽  
pp. 34 ◽  
Author(s):  
Karen O’Connell
Keyword(s):  
Decision Making ◽  
Sexual Harassment ◽  
Personality Traits ◽  
Personality Disorders ◽  
Sex Discrimination ◽  
Case Law ◽  
Feminist Perspective ◽  
Prevalence Rates ◽  
Legal Practice ◽  
The Law

Sexual harassment across multiple grounds, including race, disability, sexuality and age, remains an entrenched problem that is poorly dealt with in law. Prevalence rates for intersectional sexual harassment are higher for certain groups, while legal redress is low. This paper examines case law on sexual harassment in Australia where there are intersectional factors and asks whether the “intersectionality” section inserted into the federal Sex Discrimination Act in 2011 has impacted legal practice and decision-making. In particular, it considers the situation of sexual harassment claimants with behavioural and personality traits that are considered “disordered” and the specifically gendered disability stereotypes that shape their treatment in law. Recent cases in Australia dealing with the sexual harassment of people with personality disorders show that intersectionality provisions of sexual harassment laws may in fact be used to undermine a legal claim by a person with disability rather than strengthen it. This article argues that an intersectional legal feminist perspective on harassment is needed for the law to work.

A reasonable woman standard in sexual harassment litigation

Legal Studies ◽  
1999 ◽  
Vol 19 (4) ◽  
pp. 552-579 ◽  
Author(s):  
Giorgio Monti
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Tort Law ◽  
Case Law ◽  
Feminist Perspective ◽  
Corrective Justice ◽  
Reasonable Woman Standard ◽  
Gender Specific

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.

Sex Discrimination and the Transformation of U.S. Education

2018 ◽  
Author(s):  
Erin E. Buzuvis
Keyword(s):  
Equal Opportunity ◽  
Sex Discrimination ◽  
Sexual Misconduct ◽  
Fourteenth Amendment ◽  
Equal Protection Clause ◽  
Lgbt Students ◽  
Societal Norms ◽  
Sex Equality ◽  
Equality In Education

This chapter highlights the role of Title IX of the Education Amendments Act of 1972 and the U.S. Constitution’s Equal Protection Clause of the Fourteenth Amendment in transforming the gendered landscape of U.S. education. After first providing an overview of these two sources of law, the chapter examines the role they have played in challenging sex-based designations in admissions and in the classroom, in promoting equal opportunity and access to school-sponsored athletics, in challenging sexual harassment and other sexual misconduct, in reducing barriers to LGBT students, and in promoting equal opportunity for students who are pregnant. Sections addressing each one of these topics will also note limitations and shortcomings of the law’s approach to these issues, as there is still more work to do to fully realize sex equality in education. While the law has not cured all the problems of sex discrimination education, owing to limitations in its scope, as well as enforceability, it has proven to be a powerful source of societal norms and expectations, which themselves operate to motivate compliance and beyond.

Sexual Harassment of Working Women: A Case of Sex Discrimination

1980 ◽  
Vol 80 (8) ◽  
pp. 1686 ◽  
Author(s):  
Nadine Taub ◽  
Catherine A. MacKinnon
Keyword(s):  
Sexual Harassment ◽  
Working Women ◽  
Sex Discrimination

scholarly journals Recent Developments in Sexual Harassment Law: Towards a New Model

2009 ◽  
Vol 14 (2) ◽  
pp. 189 ◽  
Author(s):  
Anita Mackay
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Power Imbalance ◽  
Persistent Problem ◽  
New Model ◽  
Senate Committee ◽  
Sexual Harassment Law ◽  
Recent Developments ◽  
Positive Duties ◽  
Males And Females

<p>Despite more than 20 years of sexual harassment being unlawful, it is still a persistent problem in Australian workplaces and one which is grossly under-reported. The law is this area should seek both to redress the harm<br />suffered by the victim and to reduce the power imbalance between males and females. The effectiveness of the Sex Discrimination Act 1984 in achieving these objectives was reviewed by a Senate Committee in 2008.<br />One of its recommendations was for positive duties to be imposed on employers to eliminate sexual harassment. This article outlines how this recommendation might be implemented, and taken further, by shifting the<br />onus away from the victim and onto the more powerful players in any sexual harassment scenario – the harasser, the employer and the community in the relevant workplace.</p>

scholarly journals Negotiating Respect: Sexual Harassment and the Law in Hong Kong

2005 ◽  
Vol 7 (1-4) ◽  
pp. 127-168
Author(s):  
Carole J. Petersen
Keyword(s):  
Sexual Harassment ◽  
Chinese Women ◽  
Current Model ◽  
Sex Discrimination ◽  
Public Hearing ◽  
Power Imbalance ◽  
Equal Opportunities ◽  
Statutory Duty ◽  
Systemic Impact ◽  
The Law

This article critiques the sexual harassment provisions of Hong Kong's Sex Discrimination Ordinance , as well as the enforcement model. Although the judiciary has had some opportunity to interpret the Ordinance, most complaints never reach the courts because the Equal Opportunities Commission has a statutory duty to attempt to conciliate a complaint before granting legal assistance. When the Ordinance was enacted it was widely assumed that Chinese women would prefer confidential conciliation to a public hearing. However, interviews with past complainants and representatives of women's organizations reveal that many complainants find conciliation conferences to be extremely stressful. They also feel demeaned and disempowered by what is effectively an obligation to negotiate with the respondent. The author concludes that the current model exacerbates the power imbalance between complainants and respondents and limits the systemic impact of the law. She argues that an informal and inexpensive Equal Opportunities Tribunal should be created. This would allow those complainants who are willing to try their complaints to proceed directly to a hearing, without any obligation to first participate in conciliation.

Overt, Covert, And Subtle Sexism

1997 ◽  
Vol 21 (1) ◽  
pp. 103-118 ◽  
Author(s):  
Janet K. Swim ◽  
Laurie L. Cohen
Keyword(s):  
Sexual Harassment ◽  
Attitudes Toward Women ◽  
Affective Reactions ◽  
Factor Analyses ◽  
General Measure ◽  
Confirmatory Factor Analyses ◽  
Unequal Treatment ◽  
Societal Norms ◽  
Confirmatory Factor

The Attitudes Toward Women Scale (AWS) is routinely used as a general measure of sexism. In this article, it is argued that the AWS (Spence, Helmreich, & Stapp, 1973) actually measures overt or blatant sexism (harmful and unequal treatment of women that is intentional, visible, and unambiguous), whereas the Modern Sexism Scale (MS) measures covert or subtle forms of sexism (sexism that is either hidden and clandestine or unnoticed because it is built into cultural and societal norms). Support for this distinction is shown by way of (a) confirmatory factor analyses, (b) correlations with affective reactions to different categories of women and men (i.e., women and men in general, traditional women and men, feminists, and chauvinists), and (c) correlations with perceptions of sexual harassment. These analyses indicate that the AWS and MS scales measure distinct but related constructs.

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