IThe issue of sexual harassment in Australian workplaces has come into sharp focus over the past few weeks. When former Liberal staffer, Brittany Higgins, publicly alleged that she was sexually assaulted by a senior colleague in Parliament House,it sparked a national conversation about how workplaces are currently dealing with (or failing to deal with) sexual harassment and assault. Since Ms Higgins came forward with her story, three other women have alleged that they were assaulted by the same former staffer. These allegations about sexual harassment and assault in Australia’s most powerful workplace caused such concern that an independent inquiry into the culture of Parliament House has now been established. On Monday 15 March, thousands marched in rallies in cities and towns across Australia protesting against gendered violence.

Importantly though, sexual harassment in workplaces is not a problem confined to politics. A national survey by the Australian Human Rights Commission (AHRC) in 2018 found that 33 per cent of respondents reported experiencing workplace sexual harassment. Preventing and responding to sexual harassment, as well as other forms of bullying and discrimination, should therefore be a concern for all Australian employers, including schools.

The positive news for employers is that there are many resources available that provide guidance on how to better prevent and respond to workplace sexual harassment. This article will outline key recommendations made by organisations such as the AHRC and Safe Work Australia, and suggest actions that schools should take to create a safe and harassment-free workplace.

What is Sexual Harassment?

According to Safe Work Australia, “sexual harassment is a workplace hazard, which is known to cause psychological and physical harm”. Although both men and women can experience sexual harassment at work, it is most commonly experienced by female workers.

The legal definition of sexual harassment may vary in each state and territory, but broadly speaking, it includes any unwelcome sexual conduct that makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances.

Sexual harassment in the workplace can take various forms. It can involve unwelcome touching, hugging or kissing; suggestive comments or jokes; unwanted invitations to go out on dates or requests for sex; insults based on gender or sexually explicit emails or texts.

Workers may experience sexual harassment when they are not at work from work-related risks. For example, a staff member may experience sexual harassment when they are working remotely, when they are attending a work-related activity such as a conference or when they receive offensive communications via phone, email or social media. Workplace harassment can come not only from other staff members but from contractors, volunteers, parents, students, and visitors.

What Obligations do Schools have in relation to Workplace Sexual Harassment?

Employers have legal obligations under state and federal laws that require them to take both preventative and appropriate responsive action against sexual harassment, with legal penalties and significant reputational damage if they are seen to have failed in those obligations.

Sexual harassment is addressed in workplace health and safety (WHS/OHS/OSH) laws, as it is a workplace hazard that creates physical and psychological risks to workers’ health and safety. Employers have a duty under WHS/OHS/OSH laws to take all reasonably practicable measures to eliminate or minimise the risk of sexual harassment occurring in the workplace.

Sexual harassment is also unlawful under federal and state/territory anti-discrimination laws. The Sex Discrimination Act 1984 (Cth) makes employers vicariously liable for acts of sexual harassment committed by staff members unless the employer has taken all reasonable steps to prevent sexual harassment occurring. In addition, as the AHRC points out, there are good practical reasons for preventing sexual harassment in the workplace. Policies and procedures that prevent harassment assist employers in maintaining positive workplace relationships and can improve employee motivation and performance.

What Guidance is Available to Schools about How to Deal with Sexual Harassment?

Given the legal obligations incumbent on employers, schools should be taking workplace sexual harassment seriously. As awareness of workplace sexual harassment has grown in Australia, various organisations have made resources available that provide guidance to employers on how to prevent and respond to sexual harassment.

The AHRC’s Respect@Work Report: In June 2018, it was announced that the AHRC would undertake a national inquiry into sexual harassment in Australian workplaces. The inquiry ultimately resulted in the Respect@Work: Sexual Harassment National Inquiry Report, which outlines the AHRC’s findings and recommendations as to how Australian workplaces can better prevent and respond to sexual harassment. The Report recommended a shift from the current ‘reactive’ approach to sexual harassment, to a ‘proactive’ model that requires employers to take positive action to prevent it from occurring.

Safe Work Australia’s “Preventing workplace sexual harassment” guide: In response to the recommendations made by Respect@Work, Safe Work Australia has developed new national guidance (Guide) released in January 2021 about workplace sexual harassment. The clear message of the Guide is that employers must treat sexual harassment as a workplace safety risk. This means identifying risks, assessing hazards, implementing control measures and reviewing those controls regularly.

In terms of identifying risks, the Guide sets out several risk factors for sexual harassment that can be identified in workplaces. These include workplaces where:

• there is low workforce diversity
• power imbalances or a hierarchal structure exists
• alcohol is used in a work context
• isolated/remote work occurs
• leaders appear to have a poor understanding of sexual harassment.

In terms of assessing hazards, the Guide suggests various factors to consider. These include:

• assessing the physical environment (e.g. areas where there is limited natural surveillance or areas that restrict movement) and the online environment (e.g. the use of social media for work purposes, and how workers interact with one another online)
• observing the workplace culture to see whether sexual harassment is accepted as normal behaviour (e.g. sexual or gendered jokes are part of daily working life)
• conducting anonymous work surveys
• undertaking exit interviews.

What Should Schools Do Now?

With the recommendations of the AHRC and Safe Work Australia in mind, there are various steps that schools can take to ensure that they are meeting their obligations in relation to preventing and responding to workplace sexual harassment.

1. Establish a respectful workplace culture

Building an organisational culture of trust, respect and inclusion is crucial in minimising the risk of workplace sexual harassment. In workplaces where ‘lower level’ forms of harassment are accepted (e.g. small acts of disrespect are ignored and reports of inappropriate behaviours are not taken seriously), there is a higher likelihood of sexual harassment occurring.

Schools should foster a healthy and respectful work culture, where harassment, discrimination and bullying of any kind are not tolerated. To create this kind of workplace culture, the Guide suggests having clear organisational policies that set expectations about behaviour in the workplace. It is also crucial that school leaders model and enforce acceptable behaviour standards, as they play a key role in setting the workplace culture.

2. Have a clear policy of zero tolerance towards sexual harassment

Schools should make clear that they deplore all forms of harassment and discrimination, including sexual harassment. Staff should understand that sexual harassment is not acceptable in any circumstances and is strictly prohibited. Staff should also be aware that breaches of this policy will result in disciplinary action, including, in the case of serious breaches, summary dismissal.

3. Have clearly communicated policies and procedures about how staff can respond to, and report, sexual harassment

Staff must be advised of the options for reporting/responding to sexual harassment, how to initiate a complaint, and the steps involved. The school’s whistleblower procedures may be used for receiving anonymous complaints. Developing these avenues may require consultation with staff members.

4. Ensure that staff understand expectations, responsibilities and consequences, through training, about sexual harassment

Staff should be provided with information and training to support the school’s overall strategy for preventing sexual harassment. Information and training should be regularly provided to staff at all levels within the school and should cover (among other things):

• the school’s policy about sexual harassment, including acceptable standards of behaviour, consequences for breaches of the policy and ensuring that people involved in complaints will not be victimised
• bystander-intervention training so that people know what to do if they witness sexual harassment
• how to report sexual harassment and the support available.

5. Respond promptly, consistently and seriously to any report of inappropriate behaviour

It is crucial that staff members feel that reports/complaints of sexual harassment will be taken seriously and will not expose them to additional harm, discrimination or disadvantage (such as losing their job or negative impacts on their reputation or career). It should also be clear that reports of sexual harassment will be dealt with promptly, fairly and consistently, and that appropriate disciplinary action will be taken where allegations have been substantiated.

6. Review effectiveness of controls

The Guide recommends that checks occur at regular intervals to ensure that controls are working, as well as if an incident is reported, a significant workplace change occurs or there is feedback that the controls are not effective. General or specific staff surveys can be used to identify potential issues before they become serious incidents.

Conclusion

As the AHRC emphasises, “workplace sexual harassment is not inevitable, it is not acceptable [and] it is preventable”. Given that research has consistently demonstrated the prevalence and pervasiveness of workplace sexual harassment, schools as employers, should be considering how they can better prevent and respond to sexual harassment. If schools wish to develop a positive, respectful and productive learning environment for their students, they also need to model a safe, respectful and harassment-free workplace for staff.