Everything you ever wanted to know about sexual harassment at the workplace

Seriously, this covers everything. Read on.

WrittenBy:Amba Salelkar
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With the volume of #MeToo stories tumbling out on social media over the past few days, there’s been a lot of back and forth about the law regarding sexual harassment in the workplace and its scope. The Sexual Harassment of Women at the Workplace (Protection, Prohibition and Redressal) Act and Rules came into force 2013 and was preceded by the Vishakha Guidelines, but many employers and employees are still clueless and confused on precisely how it works. So here’s a ready reckoner with answers to all the FAQs on the Act. None of this should be construed to be legal advice because so much hinges on unique facts of each case – so talk to a lawyer for more clarity.

Does my organisation have to have an internal complaints committee?

If your organisation has more than 10 employed persons, there needs to have been an internal complaints committee set up. Bear in mind that the definition of “employee” under the Act is quite wide and includes people who might not be employees for the purpose of other laws. For example—interns, volunteers, consultants, and even staff that is appointed under contract, are all considered for the purpose of employees. And there’s no exception for if there are no women in the company, so this might be a great opportunity to remind companies to hire more women. Kind of.

Can complaints of sexual harassment at a workplace only be filed by employees of a company?

No. Any person who comes into contact with an employee of a company, in a work context, and faces harassment, can file a complaint before the internal complaints committee. The determination of a work context is not limited to a very narrow understanding of a “workplace”. The workplace is understood to be any place that an employee works, or any place they have to actually be—or, some would argue, perceive to be—on account of work.

So to break this down: we aren’t just talking about your office, but also your entire work campus. This includes areas you might access but not be working at, like canteens, food courts, yoga rooms, gyms, and so on. Newer kinds of workplaces and working arrangements will pose challenges, but online spaces (WhatsApp groups, email chains or Slack channels which are being used for the express purpose of work) are certainly workplaces for the purpose of deciding whether or not the policy applies. Some believe that the question we need to be asking is “what were they doing at that particular place”—not as an accusation, but just the circumstances that led there.

What about employees of a company that go out on their own, and something happens there? What happens then?

Well, again, different circumstances lead to people hanging out after office hours. If you can link this back to anything work related—like a boss asking an employee to discuss their career plans over a drink, or employees getting together to celebrate a work achievement—some would argue that it is linked to work, because a lot of times, issues like “being a team player” or being “amicable” are used to assess people, so it’s hard to say no to situations where you could be building points like this. It really depends on the facts of the case.

I faced sexual harassment at the workplace at my previous job, but I’ve quit now and there was no ICC then. Now after #MeToo, there’ve got an inquiry committee running. Am I too late to make my complaint?

If you’ve left your job, there’s nothing barring you from filing a complaint of sexual harassment against someone in your former employment. The law does provide that the ICC must take cognizance of complaints filed within a period of three months from the date of incident, and if it is a series of incidents (as it usually is) the three months will be from the date of the last incident. The ICC also has powers to take cognizance of cases beyond this three month period if the complainant can explain the delay, but this extended period shouldn’t be beyond another three months. Now, the law assumes everyone is a good soul and immediately constituted ICCs when the law came into force but since that is not the case, some practitioners are of the opinion that you could file it within three months of the constitution of the ICC and see what they say. Looking at the purpose of the law and the fact that the company has been slacking off, one would hope that they would not shoot the complaint down. Of course, you need to do your bit to follow up with it.

What do you mean, follow up with it?

The ICC will meet from time to time and you will have to attend proceedings when called. If you willfully absent yourself for more than three consecutive hearings, the ICC will send you a notice and has powers to dispose of the complaint, if you don’t respond.

But I’m not in the same city! I work as a freelancer with this organisation based in another city and I want to complain against the guy managing me. What do I do? I can’t afford to fly there every time.

Now while the rules don’t really clarify this, there’s nothing barring you appearing via Skype or Google Hangout or any other appropriate method of online communication. And in practice, this has been happening from the time of the Vishaka guidelines. For certain, the ICC can’t refuse to entertain complaints because the person lives in another city and they can’t afford to fly them down for inquiries, nor can they shift the burden on the complainant to fly down every time there is a hearing.

So, I want to file against an incident of sexual harassment at my workplace but the person doesn’t work there anymore. What do I do?

This happens more often than you think—especially with people accused of sexual harassment resigning as soon as the whisper network starts. The committee will send a notice to the respondent. If they refuse to attend proceedings for more than three dates, they can be sent a notice that if they continue to avoid proceedings, there will be ex parte proceedings which means that a floppy doll will be held in their place and proceedings will continue.

Are you serious?

Of course not. But the kind of recommendations the ICC can make against a person are limited to their job so if the person isn’t working there, is there even any point to an inquiry? And the terms on confidentiality means that the ICC can’t even publicise finding someone guilty.

So our company seems to have put together an internal complaints committee and I’m not sure they’ve been trained or anything. Should I be concerned?

Probably. Inquiry committees are a tricky business and you have to make sure the committee will work to be fair and comply with all the requirements of the law. Asking to see a copy of the compliance documents filed under the law in relation to the constitution of the committee and trainings held is a good idea to know if there is any record. If there’s nothing to indicate that the committee has been trained, put this fact in writing to human resources or management so they have to act on it, and keep an acknowledgement so you can raise this issue in another forum if this goes against you.

So, I understand ICCs need an external member. We fund an NGO from our CSR activity and we think the lady there would be a great fit for the committee since she understands our work culture and…

…will probably not want to piss off management so that she can continue to get funding for the NGO? Let me stop you right there. Your external member needs to be someone with a background in law or have at least five years of experience in social work. But the whole point is that they must be independent and have no issues with being instrumental in sacking your CEO if such an unfortunate circumstance arises.

I want to file a complaint against this person but I am really worried they will lose their job. They are awful, but I don’t want them losing their job. But I worry that if I file a complaint, it will all get out of hand.

Well, when you file a complaint, there is an option of resolving an issue through conciliation. Conciliation is a fancy term for “adult conversation”, where you can sit across a table with someone and have a facilitated conversation about what bothered you about their conduct. There are no real records maintained of this and there’s no finding of guilt or otherwise. It’s kind of meant for resolving an issue and it could be a small change or acknowledgement of behaviour with an apology, but cannot be a financial settlement. If you are okay with this, and if the person you are making the complaint about is too, you can ask for a conciliation attempt. If this fails or if the other person refuses, it might go into a hearing. But not every hearing ends in a dismissal. Also, I think it’s very sweet that you are so concerned with someone who seems to have no respect for you as an individual.

I want to file a complaint against my immediate supervisor but it’s going to be weird, right? They’ll be writing my appraisals next week. What do I do?

The law has your back. When you file a complaint, you can apply for interim reliefs. These are temporary measures to be taken for the duration of the case at the minimum. You or the respondent can be temporarily shifted—be it from the physical space or from the reporting order. If you require it, you can be given up to three months of paid leave.

Human Resources: I’m sorry, what? *faints*

Well, this is to be (a) specifically asked for, and (b) approved on a case to case basis. It’s not like you file a complaint and start packing your bags. Besides, if you haven’t done anything wrong, why should you be avoiding the workplace? As HR, you should be focused on making the workspace safe for the complainant to continue working, and if they need some time off, that’s alright, but they shouldn’t be hiding from a hostile work environment. You can also work around any discomfort by allowing for working from home, etc.

What’s this “hostile work environment” everyone keeps talking about?

In this context, a hostile work environment is one in which a person feels like they are being penalised as a fallout of sexual harassment or for taking a stand against a sexual harasser. This manifests itself in different ways. Sometimes an employee may be singled out for bad treatment, overworked, given impossible targets and bad appraisals. Other times an employee may be isolated by others—not given any work, not included in social events and deliberately excluded from meetings. The mental strain of this treatment makes it impossible for them to work and feel safe and accepted at the workplace. HR needs to monitor for this during and after proceedings before the inquiry is concluded.

I’ve been wrongly accused of sexual harassment and my reputation has been sullied. What are my options?

It depends on the forum. If someone has filed a complaint against you before the appropriate authority, you can’t really say its defamation because it is a complaint made to an appropriate authority for redressal, and the committee is bound to maintain confidentiality. So this would fall into one of the exceptions to the law on defamation, being “accusation preferred in good faith to authorised person”. If the allegations have been made in a public forum, while you might be able to file a case, if there is a chance that it could be true, there’s the issue of truth for the public good being a defence as well.

Now, both the fact of defamation and any potential defence becomes a point of evidence: so once you file the complaint or the suit, you will have to wait for the case to come to trial. You will first be examined, in chief, to show that you are a person who is capable of being defamed. That shouldn’t be difficult. But then, you will be cross-examined by lawyers for the defendant(s), who can pretty much ask you pointed questions on any subject under the sun, which can be kind of uncomfortable. Of course, these persons will try and claim truth as a defence and for that, they will have to step into the witness box, but it’s really not their character on trial here.

Can we come back to the point here? I don’t know if I have evidence to back my complaint before the ICC.

Let’s break down a few concepts here. The more stringent the punishment, the higher the burden of proof. So in a criminal court, where being found guilty can lead to imprisonment or even worse, the standard of proof is “beyond reasonable doubt”. In civil cases, where the penalty is more on the lines of damages, the burden of proof is “preponderance of probability”…

What is this, Mary Poppins?

Pay attention! Anyway, here, the ICC can recommend the termination of your job but that isn’t the worst possible thing to happen, right? So the burden is a lot less. And the whole focus is on having a safe workplace for everyone. The ICC itself is obliged to do what they can to see exactly what’s happened, within their limitations, of course. The ICC is not a police station so they can’t, for example, burst into people’s houses and seize their hard drives. If you need something like that for part of your case, you are probably better off with filing a complaint with the police.

The be-all-end-all of our organisation, and pretty much the entire sector we work in, has been serially sexually harassing women in the organisation for a long time, and while everyone is on with the movement, some are really worried about their future prospects. Like if he finds out that I testified against him, I’m finished.

It’s probably likely that you won’t even be able to have a decent hearing if this guy continues to be all up in everyone’s business, right? And the law actually has provisions for this, believe it or not. First up, as another interim measure, a respondent can be sent on leave in extreme circumstances such as this, where everyone is conflicted by his presence on campus—of course, you would need to give them the opportunity to show cause as to why this should not be done, in the circumstances.

Courts have explained that in appropriate cases, the identity of the witnesses need not be revealed to the respondent and instead they can be furnished details and given a questionnaire by the respondent as cross-examination. This won’t always be the case. If a co-founder of an organisation is testifying against another co-founder, this isn’t necessary, but if a cofounder is being accused by someone who was an intern, it’s an entirely different power equation.

Do all complaints have to be referred to the police?

All offences of sexual harassment at the workplace also become instances of criminal law violations because Section 354A also criminalises sexual harassment, even if it doesn’t happen at a workplace. If a complainant wants to go to the police, the employer is duty bound to help her approach the police. The ICC should respect the complainant’s wishes to go to the police or not, but for certain, they should not attempt to interfere or dissuade her from doing so.

But what about false complaints…

I’m amazed that this question took so long! It’s probably because I’m asking them to myself. Now, if you have made a complaint and the ICC isn’t able to come to a conclusion about the truth of it, it doesn’t necessarily mean that it is false. There’s a difference between a complaint being not proved and a complaint being absolutely palpably false. The latter is when it was made with the sole intention of ruining someone’s career/life or out of a sense of spite, revenge, etc.

If that happens, the ICC can frame these issues of inquiry and if the person who filed the complaint is found to have filed a false complaint, the ICC can make the same kind of recommendations that they can against someone found guilty of sexual harassment—even their termination from their job.

Are you serious? If I file a complaint and the person is found not guilty, I can lose my job?

No. It isn’t an either/or, and the person accused of the offence has to take a specific stance that this was absolutely palpably false etc., etc., and then that has to be proved by them. It’s not a foregone conclusion. So please don’t worry about that when you are filing your complaint.

So we are a company and one of our employees has been “outed” on social media through an anonymous DM that’s been published. Should we fire them?

If this is a private sector gig, there might not be much stopping you from doing so. Assuming you’d like to give the person accused the benefit of doubt, you might also want to think about your obligations as an employer under Section 19 of the 2013 Act, which talks about the obligation to provide for a safe working environment. This looks at matters beyond that under the purview of an ICC. An ICC, for example, cannot do much with anonymous complaints. Redressal is just one part of the law, which also deals with prevention and prohibition. And the ICC is just one part of the company too. Obligations under Section 19 would mean that you could get human resources or any other person to have informal discussions with employees about what their reaction is to these accounts, whether they too have instances to share and to guide them on how to file complaints before the ICC. If the person who is making the complaint, anonymous or otherwise, has encountered the respondent in a non-work scenario, say through social media or an online dating app, the ICC where the respondent works will not normally have jurisdiction to hear any complaint of sexual harassment, because clearly, it did not happen at the workplace.

This guy in our company was accused of sexual harassment and resigned before we could actually have proceedings. Now he’s applied for another job and someone’s reached out to check his references. Do we mention this allegation bit?

This is a tricky one, because the law is quite tight on confidentiality of ICC proceedings. Having said that, violations of the confidentiality clause only result in action to be taken against the violator of the confidentiality clause as per company policy—so it’s up to the company to take a call. Of course, they could proceed against you for defamation, but there’s another clause that might come to your assistance on “imputation made in good faith by person for protection of his or other’s interests”. Just saying.

(If you have more questions on this, leave a comment and we’ll try answering it.)


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