Tag: harassment

  • OfS free-speech absolutism allows abuse, harassment, and bullying

    OfS free-speech absolutism allows abuse, harassment, and bullying

    • By Professor Sasha Roseneil FAcSS PFHEA, Vice-Chancellor and President of the University of Sussex.

    On 26 March 2025, after a three-and-a-half-year long, deeply flawed, investigation into freedom of speech and academic freedom at the University of Sussex, the Office for Students issued the unprecedently high fine of £585,000, and decreed a form of free-speech absolutism as the new golden rule for universities.  Henceforth, it would appear that universities can only control a very narrowly defined version of unlawful speech that ignores our broader legal and ethical obligations to students and staff. It is an unworkable and highly detrimental decision for the whole higher education sector.

    The investigation was initiated in October 2021 in the context of protests against gender-critical philosopher Professor Kathleen Stock, around the time that she decided to resign from her position at Sussex. Much of the media and public reaction to the OfS’s decision has seen it as vindication of Kathleen Stock, and indeed the OfS itself gives as a reason for publishing the decision, that it would be ‘likely to make Professor Stock feel vindicated and may also vindicate her in public perception’. Indeed, the only person interviewed in the investigation was Kathleen Stock. This is despite the OfS acknowledging that it did not have the power to act on behalf of any individual, and that it has not investigated the circumstances relating to Kathleen Stock.

    Many commentators also regard the outcome as vindication of the gender-critical beliefs that Kathleen Stock professed during her time at Sussex and since. But again, the investigation was not a judgement in the toxic disputes about sex and gender, and the identities and rights associated with each. It is not the OfS’s role to make such judgements – in its own words it is ‘viewpoint neutral’ – just as it not the role of a university, or a Vice-Chancellor, to do so.

    Universities are arenas in which the most controversial ideas of the day are contested – and recent years have seen waves of protest and unrest on campuses across the world about a number of fiercely disputed issues. It is the job of university leaders to facilitate and contain that contestation so that it serves to advance the purpose of universities – the education and development of students and the advancement of knowledge and understanding. Continual efforts to promote and protect overlapping but not identical liberties – freedom of speech and academic freedom – are vital in this. So too are actions to ensure the absence of intimidation and bullying, and to create inclusive, supportive, and respectful learning and working environments, in which people of diverse backgrounds, beliefs and identities can succeed as individuals and come together in productive dialogue, however vehemently they might disagree. Indeed, the exercise of academic freedom and freedom of speech depends on this. Freedom of speech cannot mean the ability to shout the loudest or to abuse and frighten less powerful opponents into silence.

    The OfS’s has just made this work of universities infinitely harder, if not impossible. The single short offending document identified by the OfS, on which the weight of its findings rest, was designed to protect the welfare of trans and non-binary staff and students, a student group the OfS itself identifies as at particular risk in relation to access to and participation in higher education. When adopted at Sussex in 2018 – around the same time as at many other universities across the country – thinking about how best to support trans and non-binary people within universities was just beginning, and gender-critical beliefs had not yet been recognised as ‘protected philosophical beliefs’ under the 2010 Equality Act.   

    If the OfS is ‘viewpoint neutral’, its findings about a policy statement seeking to support trans and non-binary staff and students must be understood to apply to all staff and students – whatever their beliefs and identities. A thought experiment helps make the point: replace the trans and non-binary people with whose protection the offending document is concerned with members of other minoritised and marginalised groups – Jewish, Black, Muslim or Gypsy, Roma and Traveller people, disabled people, or lesbians and gay men, for instance.

    The implications of the OfS decision are wide ranging and highly corrosive of attempts to create diverse, inclusive, and equal working and learning environments, and threaten university autonomy. Under the OfS’s ruling, it would seem that universities cannot seek to prevent our curricula from relying on or reinforcing stereotypical assumptions about (for example) Jews or Black people, because to do otherwise could limit lawful speech. Universities cannot, from now on, remove antisemitic or racist propaganda from campus unless what it says is unlawful – again, extremely narrowly defined. And universities should not discipline anyone who engages in abuse, harassment or bullying unless that abuse, harassment or bullying meets the legal definition of harassment or hate speech – even if it breaches a range of other duties and obligations.

    In effect, the decision implies that universities cannot have policies that aim to reduce abuse, bullying and harassment – whether motivated by transphobia, antisemitism, homophobia, Islamophobia, racism, or sexism – beyond simply reproducing existing restrictions in law (which restrictions the OfS appears not to understand – for example, it does not appreciate that abuse, bullying and harassment are restricted by the Public Order Act 1986).

    It is, I fear, a charter that risks giving free rein to antisemitic, anti-Muslim, homophobic, racist, sexist, and anti-trans speech and expression in universities, as long as it stays just on the right side of the law.

    Moreover, the decision could be significantly at odds both with the wider legal obligations of universities in relation to equalities, and with the OfS’s own regulatory expectations regarding equality of opportunity for students, the quality and standards of the academic experience, and the soon to be introduced requirement to take steps to protect students from harassment and sexual misconduct.

    The OfS’s regressive and dangerous decision threatens the cohesion and governability of each of England’s diverse and vibrant universities, and it must be set aside. Today Sussex is publishing our pre-action protocol letter, which sets out the grounds of our legal challenge. I invite the OfS to respond positively, and to become a regulator that seeks collaboration and open dialogue with universities rather than punishment.

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  • Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Here’s how institutions are faring in handling harassment and sexual misconduct complaints

    Evidence suggests that significant numbers of students experience or are affected by harassment and sexual misconduct each year. Yet student complaints to the Office of the Independent Adjudicator (OIA) about harassment and sexual misconduct have historically formed a very small proportion of our overall caseload.

    The number of complaints about harassment and sexual misconduct we have received has been rising slowly but steadily in recent months. This may in part be a result of greater visibility at providers about mechanisms to disclose, such as “report and support” tools. This is a positive step, but there is more to be done to raise students’ confidence in how their providers can respond to reports.

    Today we have published ten case summaries and a casework note on harassment and sexual misconduct, highlighting some key issues for providers to consider when addressing complaints. Although these examples focus on sexual misconduct, the broad principles of good practice can apply across other forms of harassment.

    Taking reports seriously

    Our recent casework shows that some providers are demonstrating, via the disciplinary action they take against students reported for harassment and sexual misconduct, how seriously they view breaches of their codes of conduct. We’ve seen providers taking swift action to investigate, make findings and apply penalties. In some cases, we have seen well-reasoned and documented decisions and clearly explained outcomes.

    However, we have upheld a high proportion of the complaints we have reviewed about harassment and sexual misconduct. We have identified procedural errors and unfairness that have significantly undermined the value of the process for reporting students, and the validity of findings made against reported students.

    Overall, providers seem to have more confidence in addressing the disciplinary aspect of these complaints. Disciplinary processes are usually well established and are supported by guidance and tools such as classification of the severity of any breaches of a code of conduct and accompanying tariffs of penalties.

    There is less certainty and consistency of approach across the sector in responding to the reporting student. There may be fine nuances between a disclosure, a report or a complaint about harassment and sexual misconduct, and the manner of response to each might be slightly different. Many providers intend to be led by the reporting student’s needs, which is an admirable principle – but not always effective if the student has not been clearly informed about the options available to them and the differences between these routes.

    Sharing an outcome

    In several cases, providers haven’t understood that informing a reporting student that a disciplinary process has taken place is not a complete outcome.

    Providers need to consider how they can support students and lessen the impact upon them of the harassment or sexual misconduct they have experienced. This is especially important when the report concerns the conduct of a member of staff. In our experience, providers have tended to be more transparent about incidents between two students than they have been when a member of staff is involved.

    While providers have particular responsibilities to their employees that may be different to the obligations they have towards students, the imbalance of power makes it even more important that students understand how their complaint has been investigated and what will happen next.

    Gathering and probing evidence

    We recognise that complaints about harassment and sexual misconduct are often complex, and may involve events that unfold over a period of time, multiple incidents or involve numerous individuals. There can be constraints because of concurrent police action, which may not result in a clear outcome for several months. Cases may involve claims and counter-complaints, or turn on the credibility of the parties on nuanced issues such as consent.

    Our experience suggests that in some cases, decision makers have not fully understood the importance of moving carefully through a process that genuinely gives all parties an opportunity to tell their own story and allows for gaps and inconsistencies to be explored. It is right that all parties in these processes must be treated with respect, with kindness, and with an awareness of the impact that re-visiting an experience of harassment or sexual misconduct may have.

    But panel members who must test evidence appear to feel constrained in asking questions. Trying to re-examine or gather additional evidence at a later date can place an undue burden on all parties and prevent individuals from moving forward.

    Consultation on a new section of the Good Practice Framework

    The increased focus on tackling harassment and sexual misconduct across the sector – including the new E6 OfS regulatory condition that applies to some of the providers in our membership – is to be welcomed. The emphasis on clear information that is easy to access, and on well-resourced training for both staff and students may go some way to addressing some issues we have seen in complaints.

    In 2025, we will consult on a new section of the Good Practice Framework addressing these complex issues. It will build on the learning we have identified from our rising volume of casework. Our intention will be to draw together in one place the principles that apply to complaints about harassment and misconduct.

    We look forward to engaging with the sector to benefit from the extensive expertise of hands-on practitioners, to make this as useful a resource as possible. If you’d like to feed in at an early stage, please get in touch with us at outreach@oiahe.org.uk.

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  • Collaboration is key when it comes to addressing harassment and sexual misconduct

    Collaboration is key when it comes to addressing harassment and sexual misconduct

    In all of the noise about the OfS’s new regulation on harassment and sexual misconduct there’s one area where the silence is notable and disappointing – sector collaboration.

    Back in 2022, the independent evaluation of the OfS statement of expectations on harassment and sexual misconduct made a clear recommendation that OfS and DfE “foster more effective partnership working“ both between HE providers and with those external to the sector. Now, having published details of the new condition E6 and the accompanying guidance, this seems to have been largely forgotten.

    There’s a nod to the potential benefit of collaboration in OfS’s analysis of consultation responses, but it only goes as far as to say that providers “may wish to identify collective steps” – with little explanation of what this could look like and no intention or commitment to proactively support this.

    This feels like a significant oversight, and one that is disappointing to say the least. It’s become clear from our work with IHE members that collaboration needs to be front and centre if we have any hope as a sector of delivering in this area. Without it, some providers – especially smaller ones – will not be able to meet the new requirements, creating risk and failing to achieve the consistency of practice and experience that students expect. This feels even more true given the current context of widespread financial insecurity. Any new regulation ought to be presenting mechanisms and incentives to collaborate – and reduce costs in doing so.

    Working together for a stronger sector – or only sometimes?

    The silence around collaboration is also surprising, given that in other spheres it is seen to be – and in many cases is – the solution to institutions meeting regulatory requirements and student expectations. John Blake’s latest speech on a regional approach to access and participation is just one example of this. There is implicit recognition that in this era of “diminishing resources”, working together is the solution. There’s also the recognition that partnership working needs funding – more on that later.

    It’s also surprising given that OfS has made clear that both providers in any academic partnership are responsible for compliance with the new condition, including where there’s a franchise arrangement. This seems like an open door for collaborative approaches, given that over half the providers on the register do not have their own degree awarding powers. However, as usual, it is unclear what this means in practice. There is no reference in the regulation to how the OfS would view any collaborative efforts, or examples of what this might look like in practice.

    Academic partnerships make logical collaborators

    IHE’s recent project on academic partnerships demonstrates the potential of such arrangements for collaboration that benefits both providers and their students. Our research found a number of innovative models where awarding institutions facilitated collaboration with and between their academic partners in areas including shared learning opportunities and use of shared platforms.

    There’s a clear opportunity here when it comes to staff training. All institutions need to have staff who are “appropriately trained”. Training in areas such as receiving disclosures and conducting investigations benefits from group delivery – where staff can learn from each other. A small provider might only have one or two staff who require it, meaning they are unlikely to draw much benefit from this. It would also make such training prohibitively expensive. It’s likely to need to be delivered by an external organisation (to ensure the “credible and demonstrable expertise” required) and such solutions aren’t scaled to an institution with just a handful of relevant staff. Awarding institutions sharing such group training would solve this – and also benefit shared processes in that staff across both institutions have the same level of knowledge and competence.

    A further benefit of shared training would be that partners could share staff when investigations need greater independence than a small provider can offer. This could be staff from the awarding partner, or another academic partner. This would effectively bring together useful knowledge of institutional context, policies and processes with the necessary external objectivity to run a credible investigation.

    Another opportunity for collaboration is in shared online reporting tools. These can be an effective way of encouraging disclosure, but such systems are often not scaled for small institutions. As well as being more cost-effective, sharing these could lead to greater confidence of students reporting in the independence of tool and the process that follows.

    Think local – for everyone’s sake!

    Regional or local collaboration is the other area with the potential to benefit students, providers, and other services supporting those who experience harassment or sexual misconduct.

    Local or regional collaboration on reporting and investigation can support disclosure by creating more independence in the system. The independent evaluation spoke specifically of this, recommending the facilitation of

    formal or informal shared services, such as regional support networks, and in particular regional investigation units or hubs.

    And it would enable more effective partnerships with external support services. Rather than every provider trying to establish a partnership with a local service (putting a greater burden on groups who are often charities or not-for-profits), group collaborations could streamline this. This needs to include all types of provider, including small providers and FE colleges delivering HE. This would be more efficient, reduce unhelpful competition for the limited resource of the service, and ensure that all students have access to these support services irrespective of their place of study.

    Where there aren’t local services, providers could pool resource and expertise to develop and deliver these. This would reduce competition for specialist staff in the same geographic location, and again ensure parity of support for students across providers.

    It’s important that such collaborations involve all parts of the sector, including small providers – with the burden of their participation reflective of their smaller size. This is vital to ensure that collaborative models are cost effective for everyone.

    Getting it right on student engagement

    Collaborative approaches are also going to be critical to make sure we get it right on student engagement. The OfS expectation is clear that providers work with students and their representatives to develop policies and procedures. But what happens when an institution doesn’t have an SU, or a formal representative structure, or the necessary experience in student engagement to do this? There’s a risk that it won’t be done properly or be done at all.

    We need to consider how we facilitate students to support each other to engage in co-production. This could include sharing staff or exploring the development of local student union services that bring in smaller providers or FE colleges without the means to partner with students in the way that is needed.

    Making it happen

    The sort of collaboration outlined above will need more than just the goodwill of institutions to make it happen. It needs regulatory backing, with more explicit recognition of the value of these approaches and guidance on what this might look like in practice. We also need to recognise that it’s costly.

    Catalyst funding, like that provided back in 2019, would represent far better value to the sector than asking individual providers to fund collaboration. The risk is that without it, the burden of developing a system that works for all students at all providers will be left to the smallest institutions who need these collaborative options the most. Funding would also boost evaluation and resource sharing across the sector. It could consider the benefits of collaborative approaches between awarding and teaching institutions as well as regional structures which ensure a greater parity of support across providers large and small.

    Somewhere on this path to regulation we lost the perspective that harassment and sexual misconduct is a societal issue. What we do now to educate, prevent harm to and support students will have a lasting impact on the future as students become employees, employers, parents and educators themselves. It is not a task to be shouldered alone.

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  • EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    EEOC Finalizes Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | May 8, 2024

    On April 29, the U.S. Equal Employment Opportunity Commission issued final guidance on workplace harassment and discrimination titled “Enforcement Guidance on Harassment in the Workplace.” The guidance clarifies existing employer obligations to address workplace discrimination and aims to assist employers in recognizing, managing and preventing in-person and online workplace harassment.

    Background

    The EEOC administers and enforces Equal Employment Opportunity law to protect workers against workplace discrimination. As such, the EEOC issues guidance to help employers and employees understand their obligations and rights under EEO law to a workplace free from discrimination. In October 2023, the EEOC issued its proposed guidance on harassment in the workplace, in which they provided an overview and examples of situations that would constitute workplace harassment. The EEOC received over 38,000 comments from the public in response to the proposed guidance, which they analyzed to develop the final guidance summarized below.

    Summary of Final Guidance

    The EEOC’s final guidance aligns with and expands upon the proposed guidance and revises previous EEOC workplace harassment and discrimination guidance to address significant legal developments in recent years. Specifically, the guidance includes new overviews of workplace protections against harassment based on sexual orientation and gender identity, which the 2020 Supreme Court Bostock v. Clayton County ruling established as precedent. The guidance also addresses pregnancy, childbirth and related medical conditions as protected characteristics under the scope of “sex.” Though pregnancy has previously been protected against workplace harassment under laws like the Pregnancy Discrimination Act, recent laws like the Pregnant Workers Fairness Act and its implementing regulations have strengthened the protections afforded to pregnant workers, necessitating the need for the EEOC to update its guidance.

    In addition to the expanded scope of sex, the EEOC also includes new guidance on potential challenges relating to social media and the workplace. This includes conduct occurring in a non-work-related virtual setting (such as social media platforms or private messaging systems on personal computers or phones) that could impact the workplace. In the guidance, the EEOC provides scenarios in which certain messages shared via private messages on phones or posts shared on social media platforms about employees could create hostile work environments, triggering the requirement for employers to correct the situation.

    In total, the guidance provides 77 examples to explain harassment and discrimination in the workplace, hostile work environments, employer liability and obligations to correct workplace harassment and discrimination, and systemic harassment. As the EEOC noted in the proposed rule, the guidance and its examples “do not have the force and effect of law and are not meant to bind the public in any way.” Instead, the guidance is “intended only to provide clarity to the public regarding existing requirements under the law or agency policies.”

    In addition to the guidance, the EEOC also published educational materials for employers and employees seeking direction and support on harassment prevention strategies, including a summary of key provisions, an FAQ for employees, and a fact sheet for small businesses.

    CUPA-HR will keep members apprised of further EEOC guidance on discrimination and harassment in the workplace.



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  • EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    EEOC Issues Proposed Updated Guidance on Workplace Harassment – CUPA-HR

    by CUPA-HR | October 27, 2023

    On September 28, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) published new proposed guidance for employees and employers on navigating and preventing workplace harassment. “Enforced Guidance on Harassment in the Workplace” highlights and upholds existing federal employment discrimination laws and precedence, such as the Pregnant Workers Fairness Act (PWFA) and the Supreme Court’s Bostock v. Clayton County decision.

    The Updated Guidance

    The proposed enforcement guidance provides an overview and examples of situations that would constitute workplace harassment. Of particular interest are provisions included that reflect new and existing protections from harassment under federal laws and precedence, as well as emerging issues surrounding the workforce. The guidance discusses the following notable provisions for consideration:

    • Pregnancy, childbirth and related medical conditions. The guidance states that sex-based harassment includes harassment revolving around pregnancy, childbirth or related medical conditions, all of which are protected under federal laws like the Pregnancy Discrimination Act and the recently enacted PWFA.
    • Sexual orientation and gender identity. The guidance provides several examples of discrimination and harassment on the basis of sexual orientation and gender identity, which is considered sex-based discrimination under Title VII of the Civil Rights Act after the Supreme Court’s 2020 Bostock v. Clayton County decision.
    • Virtual and online harassment. The guidance states that conduct within a virtual work environment can contribute to a hostile environment, providing examples such as harassing comments made during remote calls or discriminatory imagery being visible in an employee’s workspace while in a work-related video call. Additionally, the guidance provides examples of conduct on social media outside of work-related contexts that may contribute to hostile work environments if such conduct impacts the workplace.

    In the proposed guidance, the EEOC reminds stakeholders that the final guidance will “not have the force and effect of law” and that such guidance is “not meant to bind the public in any way.” Instead, the document “is intended only to provide clarity to the public regarding existing requirements under the law or Commission policies.”

    Looking Ahead

    The proposed guidance is open for public comments through November 1, 2023. Once the comment period closes, the EEOC will review all feedback they received and make changes to address the comments prior to issuing a final rule. CUPA-HR will keep members apprised of any updates on this EEOC guidance, as well as new and existing laws falling under the EEOC’s jurisdiction.



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