Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era
| Published date | 01 June 2021 |
| Author | Madeleine Castles,Tom Hvala,Kieran Pender |
| DOI | 10.1177/0067205X21993146 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
Article
Rethinking Richardson: Sexual
Harassment Damages
in the #MeToo Era
Madeleine Castles*, Tom Hvala** and Kieran Pender***
Abstract
The 2014 judgmentin Richardson v Oracle CorporationAustralia 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 insuch cases increased from between$12 000 and $20 000 to $100
000 and above. Thejudgment has made Sex DiscriminationAct 1984 (Cth) litigation considerably more
attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experi-
enced by sexual harassmen t survivors. Richardson’s impact has also beenfelt 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.
I Introduction
[T]he community has generally gained a deeper appreciation of the experience of hurt and humiliation
that victims of sexual harassment experience—Justice Kenny, in Richardson v Oracle Corporation
Australia Pty Ltd (‘Richardson’)
1
* The Australian National University, Canberra, Australian Capital Territory, Australia. The author may be contacted at
madeleine.castles@anu.edu.au.
** Lawyer, MinterEllison, Melbourne, Victoria, Australia. The author is also affiliated with the Global and Women’s Health
Unit, School of Public Health and Preventive Medicine of Monash University. The author may be contacted at tom.
hvala@monash.edu.
*** Visiting Fellow, Centre for International and Public Law, The Australian National University, Canberra, Australian
Capital Territory, Australia. The author is also affiliated with The Global Institute for Women’s Leadership at The
Australian National University. The author may be contacted at kieran.pender@anu.edu.au. This research was
approved by the Australian National University Humanities and Social Sciences Delegated Ethics Review Committee
(Protocol 2019/773). The authors thank the interviewees for sharing their knowledge and insight. The authors would
also like to thank Emerita Professor Margaret Thornton and Dr Gabrielle Golding for their input. The authors’ views are
their own.
1. (2014) 223 FCR 334, 366 [117] (‘Richardson’).
Federal Law Review
2021, Vol. 49(2) 231–271
ªThe Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/0067205X21993146
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In July 2014, the Federal Court of Australia delivered judgment in Richardson.
2
At the time, it was
suggested to be the most significant development in sexual harassment litigation since the Sex
Discrimination Act 1984 (Cth) (‘SDA’) first prohibited unwanted sexual conduct in the work-
place.
3
The Full Court, in a primary judgment written by Kenny J, with Besanko and Perram JJ
concurring, held that the orthodox ‘range’ of general, non-economic damages in sexual harassment
jurisprudence was no longer consistent with prevailing societal standards. Finding that the first-
instance general damages award of $18 000 was ‘manifestly inadequate’, on the basis that it was
‘out of step with the general standards prevailing in the community’, Kenny J awarded the
appellant $100 000.
4
In subsequent years, Richardson has been cited frequently in other sexual harassment judg-
ments. Its significance is not confined to harassment litigation: Richardson has been relied upon in
numerous discrimination cases, as well as contractual, general protections, unfair dismissal and tort
claims.
5
Anecdotally, for employment lawyers, it seems in recent times that no letter of demand is
complete without reference to the Full Federal Court’s judgment. Given the case’s importance, an
analysis of Richardson’s jurisprudential resonance is overdue. Significant questions remain: Has
Kenny J’s proposition, that changing community standards demand increased general damages,
been universally accepted? To what extent has Richardson been endorsed in other spheres, and in
what contexts has it been distinguished? Beyond the case law, how has Richardson influenced the
practicalities of sexual harassment litigation? Six years on, what is Richardson’s legacy?
Answering these questions has been made more urgent by the #MeToo movement, sparked in
October 2017 by reporting from the New York Times and New Yorker on sexual harassment
allegations against film producer Harvey Weinstein.
6
#MeToo rapidly became a global phenom-
enon, with widespread media coverage of inappropriate behaviour across all sectors and jurisdic-
tions. Australia was not immune. A 2018 survey from the Australian Human Rights Commission
(‘AHRC’) suggested that, in the prior five years, one in three Austr alians had been sexually
harassed at work.
7
As the Commonwealth Sex Discrimination Commissioner Kate Jenkins has
observed, #MeToo ‘ignited a global discussion about sexual harassment and gender inequality.
Victims who have for too long been silenced have found their individual and collective voice.’
8
2. Ibid.
3. See, eg, Markus Man nheim, ‘IT Executive Rebecca Richardson’s Sexual Harassment Wi n to “Rock Employers”’,
Canberra Times (online, 16 July 2014) <https://www.canberratimes.com.au/story/6138551/it-executive-rebecca-
richardsons-sexual-harassment-win-to-rock-employers/>; Therese MacDermott, ‘Reassessing Sexual Harassment:
It’s Time’ (2015) 40(3) Alternative Law Journal 157; Anna Casellas and Jessica Keogh, ‘Landmark Sexual
Harassment Judgment Opens the Gate for Significant Compensation Claims’, Clayton Utz (Blog Post, 24 July 2014)
<https://www.claytonutz.com/knowledge/2014/july/landmark-sexual-harassment-judgment-opens-the-gate-for-
significant-compensation-claims>.
4. Richardson (n 1) 367 [118].
5. See below Part IV ‘Jurisprudential Impact of Richardson’.
6. Jodi Kantor and Megan Twohey, ‘Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades’, The New York
Times (online, 5 October 2017) <https://www.nytimes.com/2017/10/05/us/harvey-weinstein-hara ssment-allegations.
html>; Ronan Farrow, ‘ From Aggressive Ove rtures to Sexual Assa ult: Harvey Weinste in’s Accusers Tell T heir
Stories’, The New Yorker (online, 10 October 2017) <https://www.newyorker.com/news/news-desk/from-aggressive-
overtures-to-sexual-assault-harvey-weinsteins-accusers-tell-their-stories>.
7. Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment i n
Australian Workplaces (Report, August 2018) 8 (‘Everyone’s Business’).
8. Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian
Workplaces (Report, January 2020) 11 (‘National Inquiry’).
232 Federal Law Review 49(2)
While Justice Kenny could hardly have predicted #MeToo when she drafted her landmark
Richardson judgment, its impact must be assessed in the context of this new social milieu. What
does #MeToo now mean for Richardson and its ongoing legacy? Is the judgment now out of date?
Will post-Richardson litigation contribute to wider societal change?
This research is therefore timely. In the three years since #MeToo began, sexual harassment has
remained a prominent issue domestically and internationally. In March 2020, the AHRC published
its landmark National Inquiry, Respect@Work (‘National Inquiry’).
9
The report highlighted per-
vasive sexual harassment in Australian workplaces and proposed a range of reforms to the current
legal system. Among its recommendations, the AHRC proposed ‘that further research be con-
ducted on the award of damages in sexual harassment matters’, given the ‘complexity and impor-
tance of this area’.
10
It is hoped that this research might assist in addressing that knowledge gap.
Part II of this article commences by outlining and contextualising the development of sexual
harassment law in Australia. With that background in place, Part III will consider Richardson,
describing the litigious history and assessing key aspects of Kenny J’s judgment. Part IV then
provides a doctrinal analysis of jurisprudence that cites Richardson, to evaluate the decision’s
influence in sexual harassment litigation and beyond. While that section will necessarily focus on
several significant, indicative cases, as part of this research the authors have reviewed all cases
between October 2014 and July 2020 that reference Richardson. Insight from this exhaustive study
is provided alongside case-specific analyses. A full list of cases is provided in Part IV.
With the aid of qualitative research, Part V then considers Richardson’s wider legacy for sexual
harassment litigation in the #MeToo era. The authors interviewed eight prominent Australian
employment and discrimination legal practitioners. A purposive sampling approach was adopted
to incorporate a diverse range of practitioners’ perspectives.
11
This qualitative research was con-
sidered necessary given the high rate of settlement in such matters and to understand the practical
impact of Richardson. The article concludes wi th several observations abou t potential future
developments.
II Sexual Harassment Law in Australia Before Richardson
Interrogating the history of sexual harassment litigation in Australia is essential to understanding
the development of judicial and societal attitudes and approaches in this area. While this article
focuses on sexual harassment litigation in federal law, there are also avenues for redress available
at the state and territory level.
12
While sexual harassment can, in certain circumstances, give rise to
criminal liability, this article focuses on civil liability and remedies which exist at the federal
level.
13
This section first considers the legislative history of the SDA, before analysing some of the
9. Ibid.
10. Ibid 29.
11. The interview methodology is explained further below: see below pp 23–4.
12. These include the Anti-Discrimination Act 1977 (NSW); Equal Opportunity Act 2010 (Vic); Anti-Discrimination Act
1991 (Qld); Anti-Discrimination Act 1992 (NT); Anti-Discrimination Act 1998 (Tas); Discrimination Act 1991 (ACT);
Equal Opportunity Act 1984 (SA); Equal Opportunity Act 1984 (WA). For a discussion regarding the prevention of
workplace sexual harassment by state and territory-based work health and safety laws, see Belinda Smith, Melanie
Schleiger and Liam Elphick, ‘Preventing Sexual Harassment in Work: Exploring the Promise of Work Health and
Safety Law’ (2019) 32(2) Australian Journal of Labour Law 219.
13. Note, some acts which constitute sexual harassment may attract criminal liability. For instance, in Victoria, pt 8A of the
Crimes Act 1958 (Vic) prohibits rape, sexual assault, threats to commit a sexual offence and other acts of a sexual
Castles et al. 233
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