Interpreting Vicarious Liability with a Broad Brush in Sexual Harassment Cases

In keeping with employers’ common law duty of care to their employees, sexual harassment legislation, such as s 106 of the Sex Discrimination Act 1984 (Cth) (‘SDA’), provides that employers are directly responsible for any incidents of sexual harassment by their employees or agents in the course of their employment. Consequently, employers must strive to provide working environments that:

discourage harassment from occurring in the fi rst place, that have a just way of dealing with the harassment that does occur, and that are open to the scrutiny of the public justice system when they fail.(1)

Aside from the employer, other entities, such as an employment agency as in the case of Elliott v Nanda, (2) have been held liable under s 105 of the SDA. Since there are inherent difficulties in establishing a ‘positive, causal link’ between the employer and the employment agency under s 105, Ronalds and Pepper assert that the broader coverage of s 106 makes it ‘an easier route to follow for a complainant seeking to extend the range of persons or organisations against whom they seek recovery’.(3)