In the last couple of days, we saw several reports highlighting two common concerns – Inaction on complaints of sexual harassment and retaliation towards the complainant. It is important to first lay down a gist of these four articles.
- Inaction by school on a complaint by a school girl: In an article dated 22nd November, 2016, reported by Free Press, it is brought to light that a Class 10th girl, was sexually harassed by her class teacher and in spite of filing a complaint, the school had not taken any action against the teacher. The article also states that Shiv Sena tried to investigate into the matter and found that the school was trying to shield the teacher and in turn harass the girl.
- Inaction by Chief Flying Operations Inspector: Hindustan Times reported on the same date that India’s Chief Flying Operations Inspector (CFOI), one of the senior-most positions in the aviation safety regulator’s office was accused of ‘sitting on a pile of sexual harassment complaints filed by women staffers.’ It reported that this was discovered when a Delhi parliamentarian reported it to the Civil Aviation Minister and mentioned in a note that “Several women employees have met me personally and briefed me about their grievances regarding allegations of a deteriorating work environment and harassment that they are suffering due to inappropriate behaviour of Captain Ajay Singh. These employees have also alleged that the complaints of harassment by female employees are not seriously investigated and complainants are pressurized to withdraw their complaints.” It also reported that the note talked about private correspondence saying sexual harassment inquiry would be made public to embarrass women, threatening graffiti put on women officials’ cars and complainants nit-picked and foul language used in office etc. to harass women.
- Anonymous write up on inaction by IIT Roorkee: An anonymous post to Youth Ki Awaaz on 15th November, 2016, stated that ‘about 10 months after the incident, I filed a complaint with the National Commission for Women (NCW). Nothing happened. I filed a complaint with IIT. A board looked into it, talked to other witnesses and agreed with all my points. Still nothing happened.’
- Inaction in a bulb manufacturing company: On 16th November, 2016, the Times of India reported that a Senior Congress MLA from Bhind, Govind Singh stated that “Women working in this well-known LED bulb manufacturing company have complained to the local police, administration, women’s commission, even the chief minister’s helpline, but no one will rescue or take action against the company management.” This article reported that the HR official of the factory stated that “they would refuse payment to the women workers if they did not compromise.”
What actions are the employers obligated to take under the law?
We are sure, you will agree that it is alarming that there are four reports in one week on the same issues – Inaction and Retaliation. Sexual harassment, especially at workplace, and the law against it is neither new nor an extraordinary subject either for the employers or the employees. The law has been around for almost 20 years now. Though the law against sexual harassment was passed in 2013 – this law finds its genesis in the Vishaka Guidelines, which was laid down by the Supreme Court in 1997. Both, the guidelines then and the law now, clearly put a responsibility on the employer that they must constitute an internal complaints committee in the workplace to receive and redress complaints of sexual harassment. This is mandatory and under law, no employer having more than 10 employees can shy away from it. The entire responsibility of creating a safe working environment and treating sexual harassment as misconduct is too on the shoulders of the employer. The responsibility of creating awareness against sexual harassment and taking action against the harasser (once concluded so by the committee) is also on the employer. The law imposes penalties on the employer, if all these responsibilities are not fulfilled – which does not only impose monetary penalty but also provides for cancellation of license to do business in case of repeated non-fulfilment. When the law is clear, it is not even new that one would get confused about implementation, when it’s clearly targeted at making employer responsible and has penalties – What is the reason then for inaction on complaints?
It is not clear from the reports whether the educational institutions being referred to in the reports have a committee or not. However, under law, it is extremely clear that educational institutions are also supposed to have one. We have covered this point in another article here. It is also unclear whether the other organisations referred to in the reports above have a committee – but they are also clearly required to – under the law. And as discussed above, they are not only required to have a committee – but also take action on complaints.
Why is there inaction on complaints?
From all the above, it only looks like that from 1997 till date, we as a society have really not given much importance to this issue that seems to have existed in our society ever since women joined the workforce. Perhaps, among other things, there are these two things that lead to inaction on a complaint:
(1) One is at the basic level where the mind-set of the alleged harasser appears to be that the complainant must be threatened so that she does not file a complaint – and it is easy to do so by putting the fear of consequences of filing a complaint – i.e. loss of reputation, loss of job, in more serious cases, threat to life etc. Hence retaliation becomes an easy solution. In the examples above, we can see how easily women have been threatened to compromise – otherwise face the consequences. In many cases, retaliation is also triggered by the employer’s explicit or implied conduct, that sexual harassment is not their problem and must be sorted out by the involved parties separately.
(2) Secondly, without generalizing, the mind-set of employers, in most cases appears to be that:
(a) a complaint of sexual harassment is a small problem and business should not get affected because of such problems. High performing individuals should certainly not get transferred or terminated merely because they said or did something sexual to a colleague – and this should be more of a personal issue rather than the employer’s problem and one should either ‘adjust’ or find another workplace.
(b) even if a woman files a complaint, in light of her reputation, it is highly unlikely that she would publicise it or reach out to other authorities if action against such complaint is not taken. This leads to inaction on complaints.
When do employers make such complaints their problem?
While several employers are taking a proactive step towards complying with the law and ensuring that they have a mechanism in place, for several other employers, complaints of sexual harassment become a problem only when the reputation of the organisation is at stake, whether it is as a result of the complainant reaching out to higher/other/independent authorities or the media taking up the issue on its own. It is in these two circumstances that many employers actually start taking complaints seriously. If we look at the examples above, in the first example, the Shiv Sena took up the issue with Brihanmumbai Municipal Corporation (BMC), a Delhi Parliamentarian took up the issue with the Civil Aviation Ministry in the second example, the victim wrote anonymously on a public forum in the third example and in the fourth example, the matter reached the opposition party. Now that these matters have been reported and external parties are taking an active interest in the matters and raising questions, there are higher chances that the complainants would actually get some relief.
However, the larger question that arises is, as a society, is this really how we want it to be? Do we really want to take action only when our reputation is at stake? As human beings and as employers should we not ensure that our employees work in a safe environment? That they have equal opportunity at workplace? Should we not take proactive interest in at least complying with the law? If not, how can we expect one section of the society to participate in the economy if this section perpetually feels unsafe at work and does not even have the faith that there would be any redressal mechanism to address their complaints? Something to think about.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work