India’s #MeToo movement has reignited a countrywide discussion about sexual harassment in the workplace. Several companies have set up mechanisms to tackle this issue, but many still lack the legal knowledge, sensitivity and training required to prevent a miscarriage of justice. Vandana Chatlani reports
In India, we live in several centuries simultaneously”, remarked writer Arundhati Roy during an interview a few years ago. “In this country we have people who practise female infanticide, female foeticide in which millions of girl children are killed … and at the same time we have the freest, strongest, most vibrant women anywhere in the world, the most independent and radical women, original thinkers who are on the front lines of struggles.”
This dangerous dance in India of taking one step forward and two steps back is perhaps partly what inspired Indian women and men to throw down the gauntlet and speak up about harassment. Women such as journalists Priya Ramani and Pallavi Gogoi, actresses Tanushree Dutta and Sruthi Hariharan, and singers Shweta Pandit and Alisha Chinai are among those powering the #MeToo movement in India, openly naming their alleged harassers. Their voices have sparked a revolution where victims of harassment need no longer remain silent or feel ashamed.
Swarnima, an employment law partner at Trilegal, explains how things have changed since the introduction of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH) in 2013. “Initially, in the first year or so, complaints would come in and the victim would say, ‘I want you to do something about it, but I want to remain anonymous and I don’t want an official complaint to be raised’. That was a big challenge because the law requires someone to lodge a formal complaint and for principles of justice to be followed.”
This general hesitation to be associated with a case required a change in cultural attitudes, which would encourage and empower women to speak up. The #MeToo movement contributed to a change in perceptions of the once helpless victim, creating a sisterhood and a support network of women and men to remove the isolation and shame so often linked to victims. “There has been a societal shift where talking about these issues is seen as less of a taboo,” says Swarnima. “The immediate advice in the past would be to ignore it, brush it off, or even join another company. Now the advice is to go and raise a complaint. So in the bigger cities, at least, the victim is empowered.”
Alpana Srivastava, assistant general counsel at Jones Lang LaSalle, who sits on the company’s POSH committee across India, believes casting a spotlight on harassers has made a major difference. “The good thing about the #MeToo movement is that it shows the person was not alone in their experience of harassment,” she says. “Usually the victim is unsure, has self-doubt, or a lack of confidence about the incident, and this has held women back from voicing their concerns in the past. Now, when one woman speaks up, her allegations are confirmed by three, four or five other victims, which adds weight to claims that may have otherwise been brushed aside or ignored.”
Robust reporting system?
Such empowerment could be one reason companies are receiving a higher number of complaints. In addition, employees appear willing to speak up when they have faith that their managers are invested sincerely in the setup of internal complaints committees (ICCs), as laid down by the law, to redress grievances and ensure a safe workplace.
“Given that POSH cases have been traditionally under-reported, the increase in reported numbers should not necessarily be construed as a rise in the number of cases, but could be symptomatic of the progressive robustness of systems that have given employees more confidence to report such cases,” says Amitabh Lal Das, director and head of legal, compliance, regulatory and corporate governance at Max Life Insurance Company.
Read more: How to file a complaint – A brief introduction to submitting sexual harassment complaints →
While several businesses have made strides in setting up their ICC machinery and equipping their officers with the right skills, others still lag behind. “Honestly speaking, as late as last month there were companies who didn’t even have ICCs or a sexual harassment policy,” says Kalpana Unadkat, a partner at Khaitan & Co. “The #MeToo movement has absolutely stirred up discussion. Very few companies took it seriously. They realize now that social media is beyond their control and know that if they don’t take action, they could be in trouble.”
The law stipulates that companies with a minimum of 10 employees must have an ICC at each office or branch. Each company must appoint a senior female employee as the presiding officer of its ICC and no fewer than two other employees with experience in social and legal work. Each ICC must also appoint one external member who has knowledge of issues relating to sexual harassment, which may be someone from a non-governmental organization (NGO) or an association committed to the cause of women.
The government, in addition, had to set up local complaints committees (LCCs) at the district level to investigate sexual harassment complaints by employees of companies with fewer than 10 employees, or complaints against an employer.
While many companies strived to implement these measures, others have encountered practical and logistical difficulties in constituting their ICC. Companies have found innovative ways around these challenges with some setting up online ICCs instead of physical ones in each location. Others with limited financial resources and personnel are working to build their pools of qualified staff by sending one or two employees to external training programmes, which they can then impart to others in their organizations.
The Confederation of Indian Industries, Federation of Indian Chambers of Commerce and Industry, and National Association of Software and Services Companies all run workshops that are helpful for smaller companies struggling to train ICC members because they cannot afford the training that law firms provide. Unadkat suggests these businesses sign up to attend POSH conferences that run for a whole day and include mock enquiries.
“Logistically, training for sensitization of employees becomes difficult for those with employees across 50-75 offices across the country,” says Aparna Mittal, founder of Samāna Centre for Gender, Policy and Law. “Having said that, the ones who are seriously committed to the task are using online trainings and video conferences, for example, to supplement in-person workshops.”
IndiGo Airlines is one company where senior leaders emphasize a zero-tolerance approach to harassment. Priya Mehra, the company’s general counsel, says “Girl power” is one of IndiGo’s core philosophies. “One of our mottos is to make women feel comfortable working here,” she says, adding that IndiGo has a strong sexual harassment committee.
Mehra admits that complaints have been raised, but says this is inevitable given that IndiGo’s workforce comprises a large number of young cabin crew and pilots. The cases, she says, are few and far between. “We have our own training academy where anti-harassment messages are completely drilled in. We have adapted to whatever POSH requires, but we go much beyond this.”
Awareness and sensitization
Srivastava says one of Jones Lang LaSalle’s biggest challenges is covering all its sites uniformly. The company has more than 10,000 employees across India with women comprising 25-30% in a variety of roles such as ground staff, security guards, front-office executives and board members.
The act, says Srivastava, is uniform and applies everywhere. “We manage a lot of sites and workplaces for our clients and so we have a compliance vendor in place,” she says. “It’s the job of our India legal and ethics team to keep tabs and ensure the compliance vendor is visiting sites regularly and conducting audits of client compliances. We conduct frequent training to sensitize our staff about workplace ethics and we track sexual harassment complaints so we can conduct extra training sessions where necessary.”
Some companies take pride in receiving very few or no complaints. While on the one hand, this could indicate that employers have succeeded in providing a safe and equal workspace, it may also highlight weaknesses within the ICC reporting system. “Some level of complaint is healthy,” says Swarnima. “No complaints may mean your employees are not comfortable [speaking up]. It may not be assault, it may just be something that is said and the person [saying it] may not be aware.”
Understanding the wide scope of sexual harassment is crucial, she insists. “It could be a screensaver or phone wallpaper that is offensive, or a ‘boys club’ conversation. Organizations are becoming conscious and spreading that awareness.”
Think like a lawyer
Even for those considered well equipped to sit on the ICC, the task of investigating a complaint can be daunting and overwhelming. “There’s a lot of legal technicalities involved,” says Mittal, who has delivered sessions to help develop the skills necessary to be an effective ICC member.
Unadkat says human resource and compliance heads are seriously looking at training opportunities. “Many officers have no clue about conducting an ICC enquiry … you can do anything that a judge can do.”
“It is so important to have the right people to handle these complaints,” says Mittal. “Not all of them will be lawyers, but everything you do on the committee in some way carries legal implications. Some of the issues we cover include what kind of evidence you can accept, what is the level of documentation to be maintained, the tenor and process to be followed for the actual enquiry, overall principles of natural justice, and the key things to bear in mind while writing a report, etc.”
Swarnima has conducted training sessions on best practices in the workplace for the technology sector since 2014. These sessions have thrown up interesting questions that the law may not directly address. Dealing with third-party vendors on your premises is one example. “You often have multiple companies in one location and so harassment may occur in a common area, such as a lift,” she says. Understanding how these different permutations may play out is crucial. “You could also have an incident involving two external vendors on your premises,” says Swarnima. “If the incident happens in your office, you have the jurisdiction to deal with it.”
While ICC members must master the technicalities of the enquiry process, it is essential that they also practise empathy during the trial process. Mittal emphasizes the importance of such sensitivity through her training programmes. “We also cover non-technical aspects to create more empathy,” she says. “You have to be fair to both the victim and the alleged accused. The mark of good lawyering is that you can be empathetic to both, and yet be objective and fair. You may feel strongly for the cause and support the victim, but basic dignity for everyone must also be preserved.”
ICC members must also be careful to not rely on stereotypes. “Some people have a tendency to assume the victim was ‘asking for it’ because she was dressed in a particular way, or was dancing at an office party, or was known to be an outgoing person, for example,” explains Mittal. “But these things should not be relevant for purposes of the enquiry.”
Halting harassment depends as much on training ICC members as it does on educating every employee and instilling a culture of respect. But delivering messages about proper workplace conduct can be tricky, and must be tailored to different audiences. “It’s important to explain in detail (including by using examples) what may constitute harassment,” says Mittal. “Harassment can cover not just a physical act, but what you do, say, write and how you conduct yourself. Furthermore, ‘workplace’ is also widely defined under the law, going beyond the office space to cover an offsite location, an office party, a commute to work with a colleague, or meeting a client.
“At companies, the level of sensitivity and understanding may vary depending on the city and environment at the specific office or branch. Further, when you talk about harassment to senior management in an office or factory workers at a plant, the mode of communication has to be customized, including use of vernacular language where relevant, to make the information more accessible to the audience.”
Unadkat shares the same view. “Even the language you use can make someone uncomfortable,” she says. “Everybody’s boundaries are different. The same message can be perceived differently by three different women. It’s not about intent, it’s about perception.”
Unadkat has noticed tangible differences following the emergence of India’s #MeToo campaign. Some people, she says, are exercising extreme caution to the point of minimizing their engagement with women to reduce their chances of offending a colleague. “I’ve seen colleagues who would normally exchange hugs with peers they know well, now replace them with handshakes.” This, says Unadkat, could lead to a “sterile” environment, and more dangerously, one in which companies become reluctant to hire women at all.
At the same time, Unadkat acknowledges the need to cultivate respect at the workplace and strike the right balance so as not to lose camaraderie. “We have to be careful about our language and our behaviour,” she says. “I see juniors increasingly being told by senior management to modify their conduct or risk losing their jobs. You have to have those conversations.”
India’s #MeToo movement has succeeded in reviving a discussion about harassment both outside and in the workplace. But how long before the campaign fizzles out and becomes old news? Many observers say it has created a wake-up call for businesses to implement robust policies and shown that perpetrators cannot escape scrutiny. The movement, says Das, has had “a huge impact on the social and corporate psyche. Old complaints will not be disregarded as non-genuine or having lapsed and will be acted upon; this is the new reality that has emerged in the wake of FIRs [first information reports] being registered on complaints pertaining to harassment meted out in a timeframe outside the window stipulated by the POSH act.”
Das says he and others should strike while the iron is hot, and use this time “to review existing processes, ensure that there are no gaps or omissions, inadvertent or otherwise, and incorporate best practices.” He has encouraged team members to attend seminars and dedicated sessions conducted by law firms and other organizations to keep abreast of these practices.
Experts also hope that as cultural and societal attitudes begin to shift and progress, the law may do the same. A frequent criticism levelled against the POSH act is its failure to take into account harassment against men in the workplace.
Read more: Who’s to blame? – Harassment comes in many forms, but some of it may be down to cultural and social differences. Swarnima, partner at Trilegal, and Alpana Srivastava, general counsel at Jones Lang LaSalle reveals examples as to why that might be so →
“The Indian POSH law is more women-oriented,” says Srivastava, “and I say this as a woman. #MeToo comes with its own plus points and negatives – women have more power – their fears, inhibitions and suffering have been brought out through some very genuine cases in Bollywood and political corridors.” However, asks Srivastava, “are we doing justice to the other gender? Are we compromising their liberty of speech and communication? The law seems to be a little one-sided. Men have no platform as POSH doesn’t protect or provide any cover for them, and ICCs cannot deal with complaints from men.”
Mature organizations such as Jones Lang LaSalle have their own general harassment and anti-bullying policies in addition to POSH, which covers all employees. Before POSH was introduced, companies such as Star TV, Max Life and Asian Paints put in place their own anti-harassment policies and took a hard-line stance of zero tolerance for any kind of harassment irrespective of gender.
Despite her concerns, Srivastava says the law need not change immediately to cover harassment against men, since there is a logical reason behind instituting POSH. “Certainly, a more progressive view would be to address harassment as a gender-neutral matter,” she says. “However, for centuries we have had a patriarchal society. It is only now, for past one-and-a-half decades that the judiciary and parliament have started to think about women and protecting women.
“This would not have come up as a necessity if problems such as harassment, bullying and crimes against women were not at dangerous levels. Men need to understand that they cannot continue to exercise power in a disparaging way.” The law is part of an evolutionary process, says Srivastava.
Mittal agrees, and believes discussions around harassment can be taken much further than what POSH currently does and, to address incidents targeting not just women, but other genders too. “Also it’s not just about workplace policies to combat sexual harassment, but companies also need to look at their overall policies to ensure there is real diversity and inclusion. For example the issues a transgender person may face at a workplace may be very different and companies need to modify their policies in an informed and sensitive way to cater to the same. We are trying to be proactive and go beyond what is the bare minimum written in the law.
“Ultimately,” says Mittal, “it is all about respect.”
Who’s to blame? – Harassment comes in many forms, but some of it may be down to cultural and social differences. Swarnima, partner at Trilegal, and Alpana Srivastava, general counsel at Jones Lang LaSalle reveals examples as to why that might be so
How to file a complaint – A brief introduction to submitting sexual harassment complaints
Weighed down – Looking beyond the law to ensure gender parity, writes Shraddha Mor Agrawal, vice-president and head of legal at Mizuho Bank
Blowing the whistle – How HR and legal departments should work together to resolve harassment complaints