Role of Human Resources in Effective Implementation of Laws against Sexual Harassment

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What are your hopes from your organization which if fulfilled would result in your current organization becoming an ideal workplace for you?

Give a couple of minutes to ponder over this question and make a mental or written note of the things that come to your mind.

In my experience of asking this question to employees across different levels within organizations, the hopes echoed were recognition, respect, and inclusiveness among many others.

However, in the same breath many women stated that it has been more challenging than their male counterparts to have their hopes fulfilled. On questioning what could be coming in the way, they said it’s the outlook towards women, with organizations deliberating and debating women’s motivation to work, what success means to them, how they achieve it and at what costs are they willing to achieve it.

Women have been expected to justify their position and decision throughout their career – at the time of hiring (“What are you willing to do to get this job?”), appraisal interview (“With your responsibilities and demands outside workplace (read family and kids), would you be able to take care of demands of the job?),time of promotion and on achieving a coveted position in the organization (“What tricks did you use to get a place in the top management?”).

These questions accompanied with smirks, grins and winks, and reserved exclusively for the women indicate that the workplaces are still getting used to the idea of women working in the same space as men. Women are often objectified by being commented on the length of their skirt & colour of lipstick rather than being recognized for the quality of their work; often mocked at for being over-sensitive to corporate lingo (read sexually offensive language) and often ridiculed for reading too much between the lines. These experiences have notably transcended across industries and geographies as we hear about the Hollywood producer Harvey Weinstein, Gretchen Carlson’s experiences of sexual misconduct by Fox News Chairman Roger Ailes, emotional testimonies of survivors of assault by Olympic gymnastics doctor Larry Nassar. Closer home, incidents of sexual misconduct have been reported against software executive Phaneesh Murthy, prominent biologist Kanury Rao, TVF founder Arunabh Kumar, former Supreme Court judge AK Ganguly, former Director of TERI RK Pachauri and many more.

These reports and survey conducted by Indian National Bar Association indicating that one in four women have experienced sexual harassment at the workplace points to the importance of the law that was passed in 2013, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) and so much more work that needs to be done in this space.

WHAT DOES THE LAW SAY?

Sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 mandates each employer having more than 10 employees to ensure compliance with the Law by

  • Formulating & disseminating policy against sexual harassment
  • Constituting an Internal Committee (IC, erstwhile called Internal Complaints Committee)
  • Conducting organization wide training and awareness sessions
  • Having other awareness initiatives like displaying legally compliant posters at conspicuous places
  • Adhering to the complaints mechanism in case of a formal complaint
  • Maintaining Confidentiality
  • Statutory reporting

Though the law mandates the employer to fulfill the compliance requirements, the responsibility for compliance and implementation often falls on the shoulders of HR personnel. The extent of implementation of the law would be largely determined by understanding of the law, who is taking ownership of this initiative and receptiveness to the law. In my experience, the passing of law has resulted in polarized camps with one applauding the efforts being taken and the other perceiving this as an added obligation and a task that needs to be done. The latter often surfaces in conversations with concerned people, unfortunately HR in some cases, in statements like, “it doesn’t happen in our company, we are constituting an IC because we have to”; “we have no women in our organization, why do we need to conduct awareness sessions!. Inadvertently, this attitude and disregard for the law percolates to the employees and managers with making remarks like “it’s better to not have women in the team”, “I rather not talk to my female colleagues than repent later” which are discriminatory, disrespectful, non-inclusive in itself – defeating the very purpose of the law to encourage employers to nurture equal opportunity workplaces.

Before we can discuss what HR could do to effectively implement the law, it would be pertinent to understand rationale and importance of each compliance requirement:

FORMULATING & DISSEMINATING POLICY AGAINST SEXUAL HARASSMENT

Understanding there is a long standing stigma around conversations that involve sex, sexuality, sexual orientation and sexual harassment, it would be important to empower people by providing a reference document which clearly states legal definition of sexual harassment, who can file a complaint, against whom one can file a complaint, to whom can one file a complaint and what to expect when a complaint is filed.

Having a policy will serve two purposes – first, organization’s stand could be explicitly stated that there is no tolerance for sexual harassment and what sexual harassment means, should there be any ambiguity which is often the case. For example, many people aren’t aware that using sexually offensive language, sexual innuendos not directed at a person and repeatedly asking someone out despite them turning it down every time also constitutes sexual harassment. Second, the policy makes it possible for the employees to have their questions answered without having to experience embarrassment, shame, guilt, uncertainty, insecurity which often finds it way in when sexual misconduct has taken place.

As an HR personnel or anyone who has been given the responsibility of drafting the policy may find merit in reflecting on questions:

  • Would you prefer the policy to be gender-specific, gender-neutral or one that’s all gender-encompassing which includes people of third gender and non-binary gender as well?
  • Would the organization look into complaints of sexual harassment where the misconduct have taken place at the workplace only or all sexual misconducts by an employee?
  • What would be the organization’s stand on anonymous complaints or complaints made using online forums/blogs?

CONSTITUTING AN INTERNAL COMMITTEE (IC)

The law’s stand on extending protection and redressal for one gender has determined the composition of IC such that

  • IC needs to have minimum of 4 members with more than 50% representation by women
  • Presiding officer needs to be a senior woman employee
  • Two other employees
  • An external member / independent person who has experience of working in the space of sexual harassment The law mandates that for any inquiry a quorum of 3 is required and presiding officer’s presence is a must.

What would the committee look like if you were to choose non-gender specific policy?

If you are given the responsibility of nominating IC members, what would the parameters be for establishing seniority of a person and selection criteria?

During my awareness sessions, employees have voiced their concerns of not reporting to IC because they perceive the IC as biased, prejudiced and in some situations one that wouldn’t be able to stand up to the management. Added to that, challenges have been reported by the presiding officer for not being able to make herself available for all inquiries owing to work demands, not knowing how to conduct an inquiry for the lack of legal knowledge and not feeling protected by the organization should there be an lawsuit against them.  Perhaps, effective implementation of law by HR personnel would entail looking into defining the selection criteria for IC such that it instills confidence in employees to report to IC, if they are facing any concerns

Looking at extending support to IC for their work when they are involved in an inquiry. Organizing training workshops for IC to educate them on their roles and responsibilities under the law and kindle a sense of ownership in them.

This, in turn, would build confidence in employees to reach out to IC with their complaints rather than using online forums to report them. The latter is a reflection of either employees not being aware of IC or not having confidence in the internal redressal mechanisms. As one of the employees remarked in awareness session, “If one wants to report, one needs to report to a body outside the organization. Reporting the complaint within the organization would not result in any resolution”

CREATING AWARENESS ABOUT THE LAW

The law mandates that awareness sessions need to be organized for all employees, highlighting their rights and responsibilities and redressal mechanism under the law along with having other initiatives like displaying posters on the same at conspicuous places.

Most of the organizations have employed different methodologies to create awareness with some using web-based trainings, circulating the policy, having an in-house legal expert conduct the session or inviting an expert to conduct the session. There is no one way of going about it and HR would need to use their discretion to create awareness which will work for their industry, shift timing, resources and employees. Some of the questions to reflect on to ensure the best method is being adopted for your organization is:

  • Does the method adopted instill confidence in employees that there is no tolerance for sexual harassment in the organization and is committed to build inclusive and respectful workplaces not only on paper but in action?
  • Does the method adopted give an opportunity to employees for their doubts and queries to be clarified?
  • Does the method adopted give them an opportunity to build skills which may be required to report against harassment, for example assertiveness, courage to participate in the inquiry, voicing opinions with no fear of retaliation, etc?

It is not what will be done to create awareness but how it will be done and how enabling it would be for employees that would determine if purpose of the session is met.

MAINTAINING CONFIDENTIALITY

The survey conducted by Indian National Bar Association states that 68% of people experiencing sexual harassment chose not to report for the fear of retaliation and discrimination. On interacting with employees during awareness sessions and inquiries, the fear of discrimination isn’t limited to the harasser but fear of discrimination by peers is paramount. It presents itself by peers distancing themselves, avoiding eye contact, making comments like “let’s not talk to her, she would file a case of sexual harassment”, “she would have led him on otherwise it wouldn’t have happened” and the like.

These comments become possible in the workplace only if confidentiality is breached and news spread about a complaint being filed. This alienates the person, creates hostile work environment and discourages others from reporting against it in future in order to protect them from such discrimination.

Thus, it would be imperative to play an active role before, during and post inquiry.

WHAT IS HR EXPECTED TO DO WHEN INCIDENT OF SEXUAL HARASSMENT IS REPORTED?

Before Inquiry:

  • Make yourself available & give patient and supportive ear to the aggrieved.
  • Be mindful of the place and time of meeting.
  • Be aware of your own body language and facial expressions such that it is not perceived you are forming judgments in your mind
  • Make a note of all the facts shared.
  • Share the process and complaints mechanism with them. Answer queries, if any.
  • Encourage them to report to IC and assist in filing the complaint, if required.
  • Do not inquire into the complaint.

During Inquiry:

  • Maintain confidentiality – information to be shared on need to know basis only.
  • Discouraging behaviours that can be potentially offensive /disrespectful / inappropriate.
  • Supporting IC during inquiry with facts/evidence called for, relieving witnesses for deposition if summoned, implementation of interim reliefs.
  • Assuring no retaliation to the involved parties.
  • Managing emotions in the team.
  • Working with communications team for the statements to be released in media if information goes public.

Post Inquiry

  • Observe changes in behaviour / performance of the involved individuals and behaviour of people around them.
  • Facilitate support to catch up with work & projects, if required.
  • Squash Gossip.
  • Organize training sessions and activities for building empathy,respect, and values the organization stands for.

In summary, HR personnel play a defining role in designing and implementation of policies and procedures in relation to prevention of

sexual harassment. However, their objective should be to not only create policies that comply with the law but those that have a human face and instill confidence, faith and hope amongst its women employees.


Author- Samriti Makkar Midha (Partner, POSH at Work) is a trained and practicing psychologist. She serves as an external member on the Internal Committees (IC) of several companies and conducts organization wide training sessions to create employee awareness, educate managers about their roles and responsibilities under the Law. As a trained counsellor, she handles complaints of sexual harassment with sensitivity & objectivity and provides a deeper understanding of psycho-social factors of abuse and harassment. www.poshatwork.com

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