What Leaders Should Avoid In Sexual Harassment Cases
In 2019, when a woman working in the office of the then Chief Justice of India Ranjan Gogoi tried to lodge a sexual harassment complaint against him, it caused a dilemma for those who had to look into the matter. The case revealed a blind spot in India’s existing rules : While a Supreme Court employee could complain about sexual harassment against her co-workers and seniors (including judges), there is no mechanism for someone to lodge a sexual harassment complaint against the Chief Justice of India. Sexual harassment is a huge grey area in the workplace. While we do have a law, Prevention of Sexual Harassment at the Workplace Act (POSH) 2013, there are several misconceptions and misunderstandings of the law.
In my experience, at almost every training, many men feel the law is favourable to women, has an inherent male bias, and is often used to settle personal scores. The truth is, in the lack of awareness or hurry to avoid reputation damage, organisations act hastily. Typically, they want to dismiss the complaint at the earliest. Many times, they even take wrong action, like immediate termination, asking the complainant to withdraw the complaint or forcing them to resign. This makes people prefer to brush the issue under the rug, fearing loss of reputation, being fired, or becoming the butt of office gossip. Therefore, often many incidents remain unreported. Not to mention dealing with the mental trauma one goes through in such situations. To add to this, the ambiguity about ‘what is’ sexual harassment is killing!
1. Not accepting a case of sexual harassment (dismissing it on grounds that this is not sexual harassment).
2. Once the case is referred to IC, the employer(s) & other key senior leaders must stay out.
Any act, and I want to add at the very beginning, whether done consciously or unconsciously, such as seeking an update, making suggestions, giving unsolicited advice or opinions on which direction the inquiry should steer, etc. amounts to a breach of the law as it appears as an act of retaliation.
Influencing the IC, in any way, is completely wrong. This can especially happen if the perpetrator is in a position of power or significance in the company. If they are seen as valuable in the company, the management could try to influence the IC.
As leaders, it’s important to build confidence in the organisation system – one way to channel this is by building awareness about sexual harassment at the workplace and thereby institutionalising processes to prevent it.
Preferred approaches include classroom orientation sessions, training, and workshops, sending out regular newsletters, and mailers, using common areas of the office to share posters /information booklets on the subject, making the policy available on the company’s intranet portal and running e-learning programs. Also, awareness should be required at every entry point of employees into the organisation. Mandatorily plugging in an awareness module in induction programs for all new employees is also a good practice.
Takeaway: The Internal Committee must be given the due importance, power and legitimacy to handle the case.
3. Pressurising the complainant to withdraw the complaint.
This is the most practised tactic for companies that want to hush up the case without much scandal. Recently, a Malayali film actor Vijay fled the country when allegations of sexual assault became public. News reports also allege that he attempted to offer the aggrieved party Rs 1 crore to withdraw the complaint.
And offering money as compensation is not the only faux pas, any of these acts could amount to pressure tactics or can be viewed as pressure tactics to make the complainant withdraw the complaint if not handled correctly – asking for a more detailed complaint, not giving information about the next steps, not acknowledging the complaint, taking too long to revert once the complaint is filed, delays due to non-availability of the IC members, etc.
Takeaway: There are procedures and timelines in place that will help you tackle the complaint effectively.
4. Asking the respondent to resign without any inquiry.
For organisations that are old school, or large, or have a lot at stake and a lot going on, this is most common. In 2021 the Karnataka High Court held that an employee of the University of Mangalore was dismissed from employment on allegations of sexual harassment based on IC’s report, without conducting an inquiry as per service rules. The background is that a student of the University of Mangalore had filed a sexual harassment complaint with the State Commission for Women and the National Commission for Women against the chairman of the Department of Economics at the university. This was communicated back to the University to take appropriate action, which was followed by his dismissal. He appealed against this at the High Court.
Of course, there must be Zero Tolerance towards any form of sexual harassment, but that does not take away from the fact that Principles of Natural Justice should be adhered to by the IC.
Takeaway: As a company, both parties must be equally considered. A proper inquiry will give a clear picture to take correct action.
5. Forcing parties for conciliation.
Firstly, conciliation means reaching a mutual understanding of a specific matter, more likely in a case where there is some sort of misunderstanding or miscommunication. And very less likely in case of a grave sexual harassment.
In fact, in 2019, the National Commission for Women (NCW) recommended several changes to sexual harassment in the law. One of the prominent ones was to remove the provision for “conciliation” from law as sexual harassment is not a dispute that can be resolved through conciliatory mechanisms. The NCW had set off the review process of the existing law in the backdrop of the #MeToo India movement.
Takeaway: The scope and terms of conciliation are clearly outlined in the PoSH Act 2013 and the employer as well as the IC must know exactly who to offer it to and when.
6. Not taking action if a senior person is involved.
At organisations, people in powerful positions tend to misuse their power. This is not to generalise but in most high-profile cases of sexual harassment, the perpetrator is either a manager or in a leadership position in the organisation. In such cases, they can influence employers not to take action, or hush up the case. To save face, or in fear of more serious consequences, the case may not even be referred for inquiry. This defeats the purpose of complaining against any wrongdoing and sends out the wrong message to employees. It makes them feel unsafe to complain.
Takeaway: Consequences of sexual harassment must be equal for all employees regardless of designation or role in the company.
From all these things leaders should not do, one thing stands out clearly – As an employer, you have to empanel an IC focusing on the prevention of sexual harassment and providing an efficient redressal mechanism as per the law. And more importantly, let them do their job.
By empowering the IC with the same powers as a civil court and allowing for assistance from professionals during an inquiry, the Act has placed a strong emphasis on the investigation of complaints. All complaints need to undergo a formal inquiry process led by IC members, with the assistance of external professional experts. The best way to facilitate this is to equip them, train them, and let them function independently. This is a key step in ensuring a safe workplace for everyone.