Sexual Harassment Guidelines for Supervisors, Managers and Heads of Department
- The University's Responsibility
- What is my role in ensuring compliance with the legislation and the elimination of sexual harassment in the area for which I am responsible?
- What is my liability as a Supervisor, Manager or Head of Department?
- Action to prevent victimisation and manage risk
- What steps can I take to prevent sexual harassment from occurring in my workplace?
- Understanding the University's sexual harassment procedures
- What examples of sexual harassment are provided in the University's policy?
- What examples of sexual harassment are provided in the University's policy?
- What do I need to know about the University's policy on staff/student relationships?
- What do I need to know about the way the University addresses workplace bullying?
- What do I need to know about the University's sexual harassment procedures?
- Notes
The University's Responsibility
Under the Victorian Equal Opportunity Act 1995 and the Federal Sex Discrimination Act 1984 the University has a legal obligation to provide a working and learning environment that is free from sexual harassment and other forms of discrimination. Under the above legislation the University can also be held vicariously liable for the wrongs committed by its employees and agents.
As well as being unlawful, sexual harassment is an important issue for the whole University community because of the negative impact it has on the physical and psychological well-being of staff and students. Sexual harassment often results in communication breakdowns, conflict, avoidable absenteeism, and resignations. Conversely, the reduction or elimination of sexual harassment in the workplace encourages:
- high productivity in work and learning;
- regular attendance;
- better retention rates;
- respectful communication and trust; and
- the fulfilment of the University's legal responsibilities and your personal managerial obligations.
Sexual harassment may constitute misconduct or serious misconduct and lead to formal disciplinary action, in accordance with the University's 'Misconduct and Disciplinary Arrangements' for Academic and General staff.
What is my role in ensuring compliance with the legislation and the elimination of sexual harassment in the area for which I am responsible?
As a Supervisor, Manager or Head of Department you have a personal and legal obligation to comply with the legislation and to 'take all reasonable steps' to prevent sexual harassment from occurring in the area for which you are responsible. Failure to do so may result in the University being held vicariously liable for sexual harassment, whether or not we were aware that sexual harassment was occurring. Under the legislation there is also a possibility that individual supervisors or managers are liable if they fail to respond in a positive way to complaints of sexual harassment or victimise someone who makes a complaint of sexual harassment.
As a Supervisor, Manager or Head of Department you have an important contribution to make in ensuring that the culture of your workplace or learning environment actively discourages sexual harassment. Sexual harassment is not only against the law, it detracts from efforts to foster mature, respectful and productive work and learning environments. It is a management issue.
The nature of your position means that you are required to assume a leadership role, exercise your authority, and create a supportive atmosphere in the workplace. Your positive example and influence on the work and educational environment could make an extraordinary difference to your colleagues and students at the University.
It is vital that as a Supervisor, Manager or Head of Department, you familiarise yourself with the University's sexual harassment policy and procedures and take practical steps in your own area to prevent harassment before it starts.
What steps can I take to prevent sexual harassment from occurring in my workplace?
Step 1 - Identifying sexual harassment in the workplace
Sometimes it is hard to tell whether sexual harassment is occurring in a workplace for which you have responsibility. People who are offended, humiliated or intimidated by workplace behaviour don't necessarily bring their concerns to the attention of senior staff and managers. As the Anti-Discrimination Board of New South Wales notes, this reluctance may be due to:
- fear of work-related reprisals;
- distrust of management;
- not wanting to be seen as a troublemaker;
- wanting to fit in;
- mistrust of grievance procedures;
- guilt that something they did encouraged the behaviour;
- low self esteem;
- social conditioning;
- differing cultural values about what they think is acceptable behaviour; or
- a feeling that harassment is a 'normal' part of workplace culture (and that nothing can be done about it).
The fact that people have not complained about sexual harassment in the past does not mean that it is not occurring. An effective way to ascertain whether sexual harassment is occurring in your workplace is to contact the Equal Opportunity Unit and arrange for an anonymous staff survey to be conducted.
This survey could also be used as a model for broader information gathering. As long as the survey specifically addresses sexual harassment, other questions could also be incorporated. For example, you could ask staff whether they have experienced or witnessed race or disability discrimination, or bullying at work. Conducting a survey shows that in the view of senior staff sexual harassment is unacceptable behaviour, and has no place in a harmonious and collegiate workplace.
Harassment is a serious issue/disciplinary offence. If you do find out that it has occurred or is occurring in your area, that awareness will help you take the necessary steps to prevent it in the future.
' In the vast majority of cases, organisations get an unpleasant surprise when they analyse the results of such surveys. For example, it is not unusual for around 20%, or one in five employees, to say that they have been harassed with a significant number of these saying that they have suffered severe harassment. It is likely that few will say that it was dealt with to their satisfaction. Many will say that they either didn't feel that they could raise it formally or that when they did it got nowhere. A number of employees will say that they feared victimisation or that, as their managers knew about it and did nothing, they felt that there was little point in complaining formally. Many will also show a surprising level of ignorance about what is and isn't harassment. And their perceptions about what isn't harassment may not be accurate.' (Harassment in the Workplace: Guidelines for Managers, Equal Opportunity Commission Victoria, February 2000 edition).
Step 2 - Influencing workplace culture
Preventing instances of sexual harassment
Some simple steps can be taken to encourage a mature and respectful climate in the workplace. Strategies include:
- displaying a range of educational materials, brochures, and posters produced by the University's Equal Opportunity Unit;
- asking the Equal Opportunity Unit to arrange an information session or workshop about sexual harassment for staff in your work or learning area;
- obtaining copies of the University's sexual harassment policy, procedures and guidelines from the Equal Opportunity Unit for display and distribution; and
- emphasising at appropriate times that collegiate respect and professionalism are expected of University staff in both formal and informal workplace and work related contexts.
Your own conduct can become a powerful tool through which to foster a culture that is courteous, considerate, and receptive to diversity.
Remember, even if there is no evidence to suggest that people have experienced sexual harassment in your work environment, that environment is not static. All your colleagues, including newly appointed staff, need to be are aware of the University's sexual harassment policy and procedures. It is crucial that they know about:
- the University's Sexual Harassment Advisers; and
- the Equal Opportunity Unit.
That way, they will know who to refer someone to if they are approached with a query or concern about sexual harassment, or if they become aware of harassment occurring in any area of the University.
Step 3 - Responding to instances of sexual harassment
As a Manager, Head of Department or Supervisor, you have an obligation to exercise your authority appropriately if you observe, or are informed of, instances of sexual harassment in the workplace. Exercising your managerial authority may involve:
- informing someone whose conduct you have observed that the behaviour is inappropriate or unacceptable in the workplace and insisting that the behaviour cease or not recur;
- directing that, for example, screen savers or posters that may cause offence to other staff or students are no longer displayed; or
- informing staff and students in your area about the University's sexual harassment policy and procedures and the Sexual Harassment Advisers network.
When someone informs you that they have been sexually harassed, you should:
- refer that person to a Sexual Harassment Adviser for support, referral information and advice about the University's sexual harassment policy and procedures;
- seek guidance from the Equal Opportunity Unit, as soon as possible, about how to handle work or learning issues arising from their concern; and
- maintain strict confidentiality about the issue in order to minimise the risk of defamation claims and the escalation of the issue.
What is my liability as a Supervisor, Manager or Head of Department?
In Victoria, it is unlawful to request, instruct, induce, encourage, authorise or assist another person to engage in sexual harassment. If you condone sexual harassment or allow a sexually charged working environment to go unchecked, you may be viewed as `assisting or authorising' sexual harassment. In such cases, the person who sexually harasses, and the person who authorises or assists them, may be jointly liable.
As a Manager, Supervisor or Head of Department, the University requires you to:
- take steps to stop inappropriate behaviour which is occurring in your work or learning environment;
- respond appropriately to a complaint of sexual harassment from a staff member or student;
- ensure that staff and students have access to information about the University's Sexual Harassment Policy and Procedures; and to
- take reasonable steps to prevent sexual harassment from occurring in the area for which you are responsible.
Failure to so may lead to disciplinary action including, in some circumstances, termination of employment.
Action to prevent victimisation and manage risk
Victimisation of someone who makes a complaint about sexual harassment is unlawful under State and Federal legislation and is prohibited under the University's Sexual Harassment Policy.
Under Victorian legislation, 'victimisation' is defined as subjecting a person to any detriment (disadvantage or harm, which includes humiliation or denigration) or threatening them because that person (or a personal associate) has pursued, or intends to pursue their rights (such as making a complaint, giving evidence or providing information) under equal opportunity law.
Where any person (or an associate or witness) raising a concern or making a complaint of sexual harassment using University's procedures is subject to victimisation, this could give rise to a successful complaint of discrimination under State or Federal legislation.
What steps can I take to prevent sexual harassment from occurring in my workplace?
Step 4 - Maintaining confidentiality and avoiding claims of defamation
You need to maintain strict confidentiality with regard to any complaints about sexual harassment that are brought to your attention as a Supervisor, Manager or Head of Department. Similarly, people who think that they have been sexually harassed should always be advised that it is vital that they only raise the issue through appropriate channels, such as the Sexual Harassment Advisers or staff in the Equal Opportunity Unit.
Public allegations of harassment are potentially defamatory. Defamation laws aim to protect a person's reputation from being damaged in the 'public domain'. Private and appropriate communications made in good faith (such as statements made to the appropriate people under the sexual harassment policy and procedures, communications made in the course of counselling to a counsellor, and legal advice) are generally protected from actions in defamation.
This means that only the people who need to know about any allegations or counter allegations should be told what is happening. If you are called upon to make practical changes to work structures or supervisory arrangements as the result of someone raising an issue through the Sexual Harassment Procedures, be as discreet as possible in handling the matter. Remember that whilst some people may need to be informed that a change has been made, they probably don't need to be told the specific reason for the change.
Confidentiality issues also arise in the context of record keeping. Any records you make about issues that have been raised with you should be brief and factual, and should not include the names of the people involved or your own reactions or views of those involved. As with all confidential records, they must be secured in locked storage and be inaccessible to other people. Should the matter proceed to a formal investigation or become a legal matter, you may need to refer back to your records.
The University's sexual harassment procedures recognise that it would be unfair to keep records about untested allegations of sexual harassment that are made during informal procedures that could identify the person against whom the allegation was made. Records naming the alleged harasser are only retained in official University records if a formal investigation and determination procedure occurs and substantiates the allegation.
Step 5: Monitoring the workplace and reviewing risk management
The workplace is always changing. People come and go, physical and cultural environments undergo transformations and so does people's behaviour. Training activities, induction procedures, and performance reviews all provide opportunities to check whether your colleagues are aware of the University's policy and procedures for dealing with sexual harassment.
The only way to maintain best practice with regard to the elimination of sexual harassment is to monitor the workplace culture on a routine basis. This can be done though observation and by arranging for anonymous staff surveys to be conducted by the Equal Opportunity Unit.
What if I also have responsibility for maintaining a learning environmentfor students?
Taking all reasonable steps to prevent the occurrence of sexual harassment in the University's learning environments is a shared task. Much of the work that the Equal Opportunity Unit does is aimed at creating learning environments that are free from sexual harassment, and dealing appropriately with instances of sexual harassment that do occur.
If you are also responsible for a learning environment you can contribute by ensuring that:
- the University's sexual harassment poster and leaflet is prominently displayed in key offices, classrooms, lecture theatres, staff and student common rooms used by your department;
- staff in your department are aware of University policy on sexual harassment and understand the role of the University's Sexual Harassment Advisers; and
- copies of the sexual harassment guidelines are held in faculty and departmental offices.
Whenever possible, place discussions about sexual harassment in the context of the University's commitment to creating and maintaining a broad climate of respect. You could also ask staff in the Equal Opportunity Unit to arrange for a Sexual Harassment Adviser or Equal Opportunity Unit staff members to give an information session about sexual harassment to staff and students in your learning area.
Am I authorised to administer the University's sexual harassment procedures?
No. Whilst it is part of your managerial responsibility to monitor and address the prevention of sexual harassment in the workplace, you are not responsible for administering the University's procedures for dealing with concerns and complaints of alleged sexual harassment. You should not act as an adviser to parties about the sexual harassment policy and procedures, take on the role of a conciliator, or formally investigate and determine a complaint of sexual harassment.
Only people who have been trained and legally indemnified by the University (namely, Sexual Harassment Advisers, Conciliators appointed by the University and Equal Opportunity Unit staff) can implement the grievance procedures that deal with Stage 1 - Advising, Stage 2 - Conciliation and Stage 3 - Investigation and Determination. It is the role of the Vice-Chancellor and the Investigation Panel to investigate and determine a complaint.
Understanding the University's sexual harassment procedures
How is sexual harassment defined under University policy, and why?
The University's definition of sexual harassment is modelled on the legislative definition. Hence, a person sexually harasses another person if she or he:
- makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in any other unwelcome conduct of a sexual nature in relation to the person harassed,
- in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
The University is committed to ensuring that staff and students can work and study in a safe and harmonious environment that promotes personal development, productivity and individual achievement. The University therefore sets high standards when determining whether any alleged behaviour may constitute sexual harassment. This is important as what may be acceptable socially or in private life may be inappropriate in a professional or educational context. Risk management is a further reason why the University may err on the side of caution in setting a high standard of behaviour for staff and students.
How is the test of reasonableness applied?
Within the University context, if someone believes they have been offended, humiliated or intimidated in their work or learning environment, then the University has an interest in resolving the concerns of all parties involved in the issue fairly and effectively. This is true whether or not most people would view the person's distress as a reasonable or predictable response to the circumstances.
At law, the intention of the person who allegedly harasses another is irrelevant. Under the relevant legislation and the University's Policy, the significant factor to take into consideration is whether, given the circumstances, a reasonable person (as distinct from the particular person involved) would have anticipated that the harassed person would be offended, humiliated or intimidated by the behaviour.
What examples of sexual harassment are provided in the University's policy?
A wide range of behaviours can constitute sexual harassment under the policy.
For example, if someone either intentionally or unintentionally:
- subjects someone to unwanted physical contact or gestures;
- asks intrusive questions, or subjects someone to insinuations about their private life;
- makes jokes or insinuations of a sexual nature;
- subjects someone to sex-based insults or taunts;
- inappropriately or repeatedly asks someone to go out with him or her;
- explicitly or implicitly demands to engage in sexual activity with someone;
- displays offensive or pornographic material such as posters, pin-ups, cartoons, graffiti, screen savers or calendars; or
- sends an offensive communication of a sexual nature by means of a note, letter, telephone, computer, or by electronic mail or any other means;
and if a person feels offended, humiliated or uncomfortable as a result, sexual harassment has occurred.
The University recognises that:
- sexual harassment might not be deliberate - it can occur unintentionally, and still be harassment;
- it is possible to be harassed by someone with whom you once had a relationship or were sexually or personally intimate;
- some types of seemingly mild behaviour can still be offensive and constitute sexual harassment (particularly if the behaviour occurs in staff/student or employer/employee relationships, where one person in the relationship has authority over the other person); and that
- sexual harassment also occurs in situations where the people involved have equal status (for example, when one staff member harasses another staff member of equal status) or where the person who is harassed has authority (for example, when a student harasses a lecturer).
What do I need to know about the University's policy on staff/student relationships?
As a Manager, Head of Department or Supervisor you may have to deal with issues that arise out of relationships that have formed between staff and students in your area. Consensual sexual relationships are not dealt with under the sexual harassment policy because the behaviour in question is not unwelcome. Such relationships may, however, breach the University's policy on staff/student relationships.
The University's policy on staff/student relationships is relevant to any relationship (whether it is sexual in nature or not) that could cause a conflict of interest.
Staff/student relationships clearly breach University policy where:
- the staff member also has professional responsibilities towards the student and is involved in making decisions that could advantage or disadvantage the student; and
- that conflict of interest is not disclosed to the Dean, Head of Department or other appropriate person.
A breach of the staff/student relationship policy is a disciplinary matter and may have serious consequences for those involved. It may be dealt with under the University's serious misconduct or misconduct procedures governing staff or the Student Discipline Statute. As a Manager, you are authorised to make administrative arrangements to ensure that a student is not advantaged or disadvantaged by a staff/student relationship. For example, you may assist with or authorise a replacement supervisor for a student who has formed a relationship with his or her PhD supervisor.
If a colleague or student approaches you with a complaint that unwanted sexual behaviour occurred, that person should be referred to a Sexual Harassment Adviser for support and information.
What do I need to know about the way the University addresses workplace bullying?
Behaviour that is unacceptable in the workplace without being sexual in nature may still constitute misconduct or serious misconduct and trigger disciplinary procedures.
Further information about workplace bullying is discussed in the brochure No Bullying Zone: Respect and Responsibility Between Staff at the University
What do I need to know about the University's sexual harassment procedures?
The Sexual Harassment Advisers and the Equal Opportunity Unit administer the University's procedures when someone thinks that they have been sexually harassed. As a Supervisor, Manager or Head of Department however, you may find it helpful to familiarise yourself with the basic framework that the University uses in these circumstances.
That framework involves three (usually sequential) stages. Those stages are:
- Stage 1 - Advising;
- Stage 2 - Conciliation;
- Stage 3 - Investigation and Determination.
These stages are usually sequential. Stages 1 and 2 are both informal procedures. Stage 1 always precedes Stage 2. In most cases, Stage 2 will also occur before Stage 3 (which involves making a formal complaint) is implemented.
What is Stage 1 - Advising?
Stage 1 - Advising occurs when a person who has raised a concern about sexual harassment, or an alleged harasser, contacts a Sexual Harassment Adviser. The Sexual Harassment Adviser will provide the person with information about the University's Sexual Harassment Policy and Procedures, and discuss ways in which she or he could seek to resolve the complaint.
The same Sexual Harassment Adviser is not permitted to advise both parties in a sexual harassment case.
What is Stage 2 - Conciliation?
Stage 2 - Conciliation is an informal process in which a neutral third party provides the person who thinks they have been sexually harassed and the alleged harasser with an opportunity to resolve their concerns. It usually occurs in situations where the person who has the concern does not feel able to resolve the issue directly or alone. Unless it would be impossible to implement or inappropriate in the circumstances, Stage 2 - Conciliation occurs before the University's more formal complaints procedure can be invoked by either party. If conciliation is required, the Equal Opportunity Unit will appoint an appropriate conciliator.
What is the formal procedure called Stage 3 - Investigation and Determination?
Stage 3 can occur either at the request of the person who thinks that they have been sexually harassed or at the request of the alleged harasser if Stage 2 - Conciliation is deemed to have been unsuccessful or inappropriate in the circumstances.
If the person who raised the concern wishes to proceed to Stage 3 they must:
- notify the Equal Opportunity Unit and meet certain procedural requirements;
- make a formal complaint of sexual harassment; and
- formally ask the Equal Opportunity Coordinator to request that the Vice-Chancellor investigate the complaint.
If the matter proceeds to Stage 3 there is a change in the language used to describe the parties involved in the complaint. The person who raised the concern will be referred to as 'the Complainant', the alleged harasser will be referred to as 'the Respondent' and the concern that has been raised will be referred to as 'the complaint'.
Further information about formal procedures for Stage 3 - Investigation & Determination are set out in the Sexual Harassment Policy which is available at http://www.unimelb.edu.au/ExecServ/Srvoll/sr314.htm
What if the person wants to take legal action outside the University?
Someone who has been sexually harassed or someone against whom an allegation of sexual harassment has been made can seek legal advice at any time. Practising barristers and solicitors are not, however, permitted to attend the University's proceedings.
The University aims to give people a fair opportunity to resolve their issues within the University. For this reason it aims to keep its internal procedures simple and effective, and to avoid the escalation of complaints.
If the complainant chooses to take legal action about the alleged sexual harassment under the:
- Victorian Equal Opportunity Act 1995;
- Federal Sex Discrimination Act 1984; or
- Federal Human Rights and Equal Opportunity Act 1986;
the University's internal procedures may be terminated or suspended pending the outcome of the complaint.
Notes
1. The use and misuse of University technology is governed by Statute 8.1. It is relevant to sexual harassment that occurs though the use of computers and e-mail, and is located at: http://www.unimelb.edu.au/ExecServ/Statutes/r81r7.pdf
2. The policy on dealing with cases of alleged sexual harassment, Statement of Policy and Procedures for Dealing with Cases of Alleged Sexual Harassment (Standing Resolution of University Council) is located at: http://www.unimelb.edu.au/ExecServ/Srvol1/sr314.htm.