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

Abstract

<p>This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the <i>Sex Discrimination Act 1984</i> (Cth) (<i>SDA</i>). 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.</p>