Our project was finished. With grins on our faces, my colleague and I walked towards each other, hands sailing through the air in synchronised arcs. Onlookers shouted, “No, don’t! It’s not COVID-safe….” Our grins faded, but it was too late. We high fived. Cringed. And hand sanitised.

There’s going to be an awkward adjustment period while we all figure out how to interact with people at work again. Unfortunately, the timing overlaps with both the predicted ‘summer of love’ and the new Roadmap for Respect changes to Australian sexual harassment and discrimination laws, which commenced operation on 1 September 2021.

The Roadmap for Respect didn’t account for the fact that people who have been in extended lockdowns may be out of practice at reading the room or have different thresholds for what is acceptable, normal, welcome, offensive, humiliating or intimidating conduct. It’s easy to see how water-cooler conversation may run dry. Pauses could be filled with overly personal stories or awkward banter. Physical proximity could be much more confronting now than it has been in the past.

This creates a ‘perfect storm’ of risk, noting that:

  • There is now a broader range of conduct that will amount to unlawful ‘sexual harassment’ under the Sex Discrimination Act 1984 as well as a new type of unlawful conduct (‘harassment on the grounds of sex’).
  • A larger population of people are now covered by these laws. Claimants also have a longer period of time in which to bring claims to the Australian Human Rights Commission.
  • All “persons conducting businesses or undertakings” (or PCBUs) are covered and can also be liable as an accessory if they cause, instruct, induce, aid or permit sexual harassment and sex-based harassment.
  • The Fair Work Commission can also now hear applications for orders to ‘stop sexual harassment’ (which is similar to the existing ‘stop bullying’ framework).

To navigate these risks, leaders may need to recalibrate. Key points to check off the list are:

  • Policies and procedures should be dusted off to ensure that the standards are clear and companies have the tools needed to respond to any claims of inappropriate conduct. Consider reminders and training, particularly as we head into the festive season.
  • If office attendance is down, how do you ensure leaders oversee interactions, spot any red flags and respond swiftly to prevent sexual harassment and discrimination, if needed?
  • Invest in support for anyone who is struggling, including drawing on some of the great tools we have all been using while working from home.
  • Have genuinely open dialogues (and sometimes hard conversations) about the line between acceptable and unacceptable behaviour, focusing on the practicalities of interpersonal interactions and the nuanced ways workplace sexual harassment and discrimination can arise depending on the dynamics and power imbalances between those involved.
  • Ensure people know they can and should ask questions or raise issues – and that the employer values and supports input on how it can continue to create a productive, respectful and inclusive workplace where people can thrive.