Recently the world saw widespread employee outcry in the form of collective walkouts across countries, protesting against sexual misconduct and oppressive anti sexual harassment policy of a US tech giant. This was triggered by a newspaper story on the way the company previously protected one of its high performing employees charged with sexual harassment by paying him heavy exit package and maintaining silence about the complaint. The outcry led to the company announcing considerable changes to the policy, making it more democratic and transparent. Importance of an organization's anti sexual harassment policy is established through such happenings.
Sexual harassment policies are not just documents to be formulated as legal requirement. They are symbolic documents that bring forth an organisation's stand on sexual harassment. Sexual harassment being a complicated and deep rooted issue, an anti sexual harassment policy alone will not be able to stop it from occurring nor will it bring transformation in the sexist attitudes. However it will lay the foundation for regular awareness generation, accountable and transparent redressal processes.
Present article attempts to explicate importance of an organisation specific anti sexual harassment policy specially suited to the Indian context with respect to code on sexual harassment existing in the form of a statute.
Philosophy of the organisation should be reflected in the policy by underlining consistent position against sexual harassment across hierarchy and identities of the employees with special reference to caste, class, gender, religion, region, race and ethnicity. Policy should convey that there will be no scope for discrimination and inconsistency while dealing with complaints. Reporting of sexual harassment should be encouraged and with assurance that every reported complaint will be treated seriously. Persons charged with sexual harassment will face consequences irrespective of their position in the organisation. Processes and programs should be explained in lucid language make it easier for women to file complaints, understand the inquiry process, enabling the Internal Committee (IC) to conduct inquiries into complaints quickly and decisively, for facilitators to hold awareness sessions that help walk the talk on values and behaviors. Nature of business including corresponding activities carried out by the organisation should be taken into consideration by the policy. Assessment should be done to cover potential possibilities of sexual harassment in the policy such as alcohol consumption at work events, isolated work spaces that might allow someone to harass another without being seen or heard, power disparities, romantic – sexual relationships at work.
Aspects which require elaboration should be addressed by the policy. Verbal complaints of sexual harassment should not be dismissed but referred to the Internal Committee (IC) for discussion and action. IC meetings should be compulsory irrespective of whether complaints are reported for maintaining its significance and contact with the employees. Space should be created for men and persons with different gender identities to complain of sexual harassment by spelling out a special grievance mechanism for them. Quorum should include participation of external member to maintain credibility, fairness and transparency of IC proceedings. Nature of assistance in the form a written communication or physical help to be given to the complainant for registration of complaint with police should be explained. Information regarding safety measures such as audits of arrangements and operations with respect to infrastructure such as accommodation, transport and other such relevant aspects should find space in the policy. Method of processing complaints submitted by women employees after resignation from employment and anonymous complaints should be mentioned. Clear demarcation of role between human resource department and IC should be done.
Anti Retaliation Measures
Anti Retaliation measures that will be adopted after complaint is registered with an aim to guard employment status of the complainant and witnesses should be elaborated along with consequences if a person is found guilty of sexual harassment. Resignation from service especially by the person charged with sexual harassment or withdrawal of complaints because of unknown pressures during pendency of inquiry should be prohibited. Position regarding suspension from service pending inquiry should be advocated in serious complaints and disclosure of sexual harassment complaints in previous employment should be mandated.
Discriminatory gender behaviours such as gender labeling, sexist humour, disrespecting personal space and choices with regard to sexual orientation and other such prejudiced conducts which are potential breeding ground for sexual harassment can be included in the policy as form of grievances to be addressed. Policies should preferably not discuss what does not constitute sexual harassment and there should be no compulsion for the complainant to warn the respondent prior to registering complaint. Employee support initiatives such as counseling services, emergency helpline for reporting sexual harassment, internal support groups should be listed in the policy document.
Humane & Workable policy
Sexual harassment is surrounded by stigma and victim blaming Moreover sexual harassment is not always direct and physical but implied through verbal or non verbal overtures. If women worry that any act irrespective of the fact whether it is serious or minor could lead to someone losing their job, there will be hesitance or numerous small but distressing instances of sexual harassment could go unreported. Thus a mere zero tolerant policy to sexual harassment will not ensure elimination of sexual harassment from the workplace if culture of the organisation remains unchanged. Importantly all sexual harassment acts should be penalised in one way or the other. However employees found guilty of sexual harassment should be given chance and scope for improvement and changing ways thus making the policy more humane and workable.
The 2013 Act requires wide dissemination of the organisation policy on sexual harassment. It should be ensured by the employer that the policy becomes part of the employee handbook, every employee has a copy and that each employee undergoes orientation related to the policy during induction process. One of the best practices is to have an organisation drive every six months to publicise policy provisions using promotional material. An effective way to broadcast to the policy is to review the policy as a team or conduct periodic surveys internally to ensure that the policy has been updated, understood and interpreted correctly. Such discussions should encourage employees to raise questions in form of doubts, clarifications thus helping to maintain open dialogue on the topic. Since the 2013 Act allows any woman in relation to workplace whether employed or not to complain of sexual harassment it is advisable to upload the policy on company website along with names and contact details of the IC members. Adherence to the policy provisions should be mandated for each employee by including the same into their service conditions either explicitly or through inference. Similar abiding to the policy should be made compulsory for all organisations and persons who deal and partner with the company.
Summing up the Issue
A sexually hostile workplace has certain prominent features such as persons with a biased attitude who degrade other persons mostly using unbridled power conferred upon them due to gender or position at the workplace. The Board of a Company has an important role to play in ensuring the creation of a work environment free from sexually harassment.
This was formally reiterated by the GOI on 31st July 2018 by bringing an amendment to the Companies (Accounts) Rules, 2014 under the Companies Act, 2013 mandating the inclusion of a statement by the Directors in the Board of Directors Report that an IC has been constituted by the company under the 2013 Act. It may be noted that Section-134 of the Companies Act, 2013 provides the disclosure framework which the Directors of every company are required to comply in the Company Annual Reports. This section also includes the penal provisions for non disclosure. Inclusion of the compliance under the Sexual Harassment of Women at Workplace Act, 2013 in the non financial disclosures will ensure that the issue gets into the focus into Board of the companies.
(Views are personal)
About Author – Anagha Sarpotdar has a PhD in Social Sciences. She has been working on social and legal issues of women at workplace since 2005. Currently she is functioning as the Chairperson of the Local Committee for District of Mumbai City constituted under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Bag, Amartya (2015), "How to Draft a Sexual Harassment Policy in India", iPleaders – Intelligent Legal Solutions, March 27 2015, Viewed on 1st April 2015 https://blog.ipleaders.in/5-important-pointers-in-drafting-sexual-harassment-policies-in-india/
Brock Jonathan, Garde Billie Pirner, and Weldon Marcia Narine (2018): "What exactly is zero tolerance on sexual harassment?", The Boston Globe, January 2 2018, Viewed on 7th March 2018. https://www.bostonglobe.com/opinion/2018/01/02/what-exactly-zero-tolerance-sexual-harassment/3mKqMjzMDll3UZqgWoXu7N/story.html
Chakrabarti, Rajesh and Sanyal, Kaushiki (2016): Public Policy in India, (Oxford University Press: 2016)
Cooper, Marianne (2017): "The 3 Things That Make Organizations More Prone to Sexual Harassment" The Atlantic, November 27 2017, Viewed on 29th November 2017 https://www.theatlantic.com/business/archive/2017/11/organizations-sexual-harassment/546707/
Dougherty, Debbie (2017): "The Omissions That Make So Many Sexual Harassment Policies Ineffective", Harvard Business Review, May 31 2017, Viewed on 10th June 2017 https://hbr.org/2017/05/the-omissions-that-make-so-many-sexual-harassment-policies-ineffective
Goldhill, O (2017): "Zero tolerance sexual harassment policies are terrible for women", Quartz, November 10 2017, Viewed on 24th November 2018 https://qz.com/1125385/zero-tolerance-sexual-harassment-policies-are-terrible-for-women/
Interactive, Services (2017): Preventing Sexual Harassment In Your Workplaces, OpenSeasame, May 30 2017, Viewed on 28th June 2018 https://www.opensesame.com/blog/preventing-sexual-harassment-your-workplace
Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2014 SCC OnLine Bom 814)
Kandola, Binna (2017): "Six Signs Of Sexual Harassment In Your Workplace", HuffPost, November 30 2017, Viewed on 3rd December 2017 https://www.huffingtonpost.co.uk/entry/six-signs-of-sexual-harassment-in-your-workplace_uk_5a1ecf7ce4b039242f8c8089?guccounter=1
Kornee, Ashley (2017): "4 Sexist Stereotypes That Still Make It Hard For Women To Build Their Careers" Youth Ki Aawaz, December 2017, Viewed on 2nd January 2018 https://www.youthkiawaaz.com/2017/06/female-career-stereotypes-in-this-day-and-age-you-bet/?utm_content=buffer7e079&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer
Mahoney, Cates (2018): "Understanding Your Company's 'Zero Tolerance Sexual Harassment Policy', Cates Mahoney Legal Blog, January 18 2018, Viewed on 17th November 2018 https://www.catesmahoney.com/understanding-companys-zero-tolerance-sexual-harassment-policy/
Sorin, Martin (1976): "The Boundary Between Public and Private Policy-Making: A Reply to Mark V. Nadel", The Journal of Politics, Vol. 38, No. 1 (Feb., 1976), pp. 159-163
Stephens, Christopher (2017): "Sexual harassment at work: it comes down to the corporate culture", South China Morning Post, December 11 2017, Viewed on 19th December 2017 https://www.scmp.com/comment/insight-opinion/article/2123842/sexual-harassment-work-it-comes-down-corporate-culture
Verma, Abhinav (2017): "The truth behind sexual harassment at workplace: Five signs to watch out for", Hindustan Times, April 27 2017, Viewed on 27th April 2017 https://www.hindustantimes.com/sex-and-relationships/the-truth-behind-sexual-harassment-at-workplace-five-signs-to-watch-out-for/story-DFvCKCBskqL54S0cWrAy7N.html
Wickre, Karen (2017): "Corporate Boards Are Complicit In Sexual Harassment", Wired, June 12 2017, Viewed on 2nd July 2017 https://www.wired.com/story/corporate-boards-are-complicit-in-sexual-harassment/
Wilkie, Dana (2017): "When HR Gets It Wrong: Misconduct Won't Change Until the Culture Does", SHRMhttps://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/hr-gets-it-wrong-4-.aspx – Society for Human Resource Management, July 20 2017, Viewed on 24th July 2017