Revisiting vicarious liability in sexual harassment cases heard under the Sex Discrimination Act

Abstract

This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the Sex Discrimination Act 1984 (Cth) (SDA). In a study undertaken by the authors in 2008, we found that the Federal Court and Federal Magistrates Court appeared to be taking a ‘broad-brush’ approach in interpreting employers’ duty to take ‘all reasonable steps’ to prevent sexual harassment and defining ‘in connection with employment’. The authors update that analysis and evaluate a sample of cases from 2011 to 2018, concluding that it is possible the Courts are approaching these legislative elements of vicarious liability with an increasingly narrow brush.