In spite of having a law, there remains confusion about what constitutes sexual harassment at the workplace, which incidents would come under the purview of the organization, and what can one do if faced with harassment. Going through the anecdotal incidents that have come up in social media, we present six scenarios, where experts clarify the grey areas.
A co-worker propositions you online—using a messaging service like WhatsApp—asking for sexual favours, professes lust or sends inappropriate images of himself. You refuse to respond or ask him to stop, but he persists. Is this sexual harassment at workplace even though this is happening online?
This would definitely be sexual harassment as any virtual space or medium like messaging service, blogs, social or professional networking sites used by colleagues to interact, would fall under “any place visited by the employee arising out of employment", says Shivangi Prasad, partner, POSH (Prevention of sexual harassment) at Work, a firm that assists in complying with the law on sexual harassment at workplace.
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (SH law), the internal complaints committee (ICC) can recommend a range of actions that includes warning, counselling, community service, suspension, withholding promotion or terminating the employee. It is important to remember that the ICC can also take action against the complainant in case of a false allegation. The law, Prasad states, hasn’t pre-determined the actions that should be recommended for a particular kind of sexual harassment. “It is the ICC’s discretion to recommend action based on facts and circumstances of each complaint, the nature of sexual harassment, repetitiveness, hierarchy of respondent, abuse of power, impact on aggrieved, etc.," says Prasad, who sits on various ICCs as an external member. “In fact, the Ministry of Women & Child Development had published a handbook in 2015 on the SH Law, in which it gave some examples of sexual harassment that can happen through SMS, MMS, WhatsApp, etc., clarifying that virtual world would also fall under the definition of workplace."
Finally, if the victim and harasser have to interact on a regular basis at work (by virtue of being on the same team or otherwise), this could be construed as creating a hostile work environment for the victim and on that basis could also be considered as sexual harassment at the workplace, says Ajay Raghavan, partner (labour and employment), Trilegal, a Bengaluru-based law firm.
If an incident happened through verbal communication as opposed to text messages, how do you prove the violation. What would constitute as evidence here?
“These are often the trickiest situations to deal with," believes Raghavan. When there is no documentary evidence, it may result in a he said-she said complaint. Therefore, providing a list of individuals/ colleagues as witnesses, who may have seen the incident occur or providing any written communication such as texts or emails, which took place with the accused, immediately after the incident or in relation to the incident (such as an apology text) can be helpful as evidence in such cases, he says. CCTV footage can also help in some cases, adds Viji Hari, founder of Chennai-based HR consultancy firm KelpHR.
Prasad gives examples of two complaints her team handled recently. In one, the person had made some derogatory comments and in the other, the person was continuously staring. “There was no concrete evidence in either case. However, we met other employees and it turned out in both cases that no one had heard those comments or seen the person staring (as alleged in each case). But, several employees confirmed that the accused was habitual of passing comments and staring, respectively. “Given that it was a frequently displayed behaviour, it was concluded that there was a strong possibility that the alleged behaviours may have taken place. In cases where there is no tangible evidence, we have to depend on circumstantial evidence in the form of witness statements," she explains.
If an incident occurred a few years ago and the perpetrator is no longer working with the organization or if you have quit the organization, then can a harassment complaint still be filed with the organization and can they take action?
The law states that a complaint of sexual harassment can be filed with the organization’s ICC within three months of the incident occurring (or the last incident occurring, when a series of incidents have taken place), Raghavan says. The ICC can further extend this period to another three months after which the complaints are time barred. “Such a complaint can be filed with the ICC even if the victim has quit the organization, provided the complaint is filed within the prescribed time limit," he says. However, if the incident happened several years ago, the ICC would not have any powers to investigate the complaint because it’s time-barred, Raghavan explains.
A junior clerk or office boy has been harassing you. He seems eager to help, follows you, texts you and even touches you inappropriately, at times. All this makes you uncomfortable but you worry that a complaint against him will mean him losing his job. Also, is this sexual harassment even though you are the senior person, hierarchically?
Sexual harassment can take place between anyone, irrespective of the hierarchy and this situation clearly shows sexual harassment, Prasad points out. Also, filing a complaint does not automatically lead to termination of employment of alleged harasser, if he/ she is found guilty, she says.
Kanan Dhru, founder of think tank Research Foundation for Governance in India (RFGI), who also sits on the ICCs of several organizations as an external member, agrees that sometimes women do not want to cause someone to lose their jobs but reiterates “if you are being harassed or being made to feel uncomfortable, you have the right to complain. The HR will most likely not fire him, unless he is a repeat offender", she says.
Once the complaint is raised with the ICC, the complainant is given the opportunity to either enter into a conciliation with the accused or proceed directly with an inquiry into the complaint. Where the victim opts for a conciliation, the ICC facilitates a discussion between the parties, who would explore the possibility of arriving at a settlement—note that this settlement cannot have a monetary basis, says Raghavan. “If the conciliation fails or the victim does not opt for it, the ICC would proceed with an inquiry and based on its findings, recommend disciplinary action against the accused, which the organization would need to implement," he says.
At an official meeting, you find that a client or vendor is coming on to you, in spite of repeatedly telling him to back off. Is this sexual harassment even though the offender is not employed with your company?
The scope of the law when it comes to “workplace" is broad enough to include such an incident as sexual harassment at the workplace. Raghavan explains that the “workplace" under the law includes any place visited by the employee arising out of, or during, the course of employment. Accordingly, an official meeting or company sponsored event such as an offsite or party would be considered a workplace.
The law protects you if you face harassment by a perpetrator working with you in the same premises, or if you go to a third-party premise and face harassment there, or if a third party visits your office premise, your office will be responsible, says Dhru.
Smita Paliwal, senior associate, King Stubb and Kasiva, a Delhi-based law firm, believes that the best recourse to take is to go to the HR or ICC. “The act puts an onus on the employer to provide a safe working environment for women employees. Your employer in such a case shall report the matter to the concerned person’s employer," she adds. Agreeing with Paliwal, Raghavan says that although the definition of the term “employee" broadly includes any person directly employed as well as contract workers, trainees, apprentices, etc., a client or a vendor would not be considered as an employee in relation to the victim’s company.
However, since your organization is supposed to take care of your well-being, Dhru believes, you can complain. “The right way to deal with this would be to go up to the HR at your company and let them speak to the organization where the client or vendor works," she explains. Dhru adds that if the HR is not helping, you can file an FIR at the police station.
The same rule and procedure will apply, albeit in reverse, if the perpetrator is from an organization and you are the client/vendor. A complaint can be filed against the harasser provided this person is still an employee of the organization, Prasad points out.
There is a get-together or party organized by a colleague at his house and you visit in your personal capacity. You are harassed by a colleague there. Is this sexual harassment at workplace even though this happened at a private party?
This will very well be considered sexual harassment at workplace, despite it being a social get together and not one organized by the organization. While the gathering is in personal capacity, since there will be a hostile environment and the person will not be comfortable to work/face this colleague at work, the organization needs to handle this situation, says Hari. “Whether the HR handles this as harassment issue or whether the ICC intervenes is purely left to the organization. In KelpHR’s recent survey, 60% of organizations did not handle such cases, while 32% organization took it as a POSH case. About 8% handled it as an HR case," she says.
Even in Prasad’s experience, several organizations’ ICCs choose not to inquire into such complaints as they hold the view that such parties are personal parties and don’t have any connection with the workplace.
There is a get together organized by your office. You are inappropriately touched by a colleague at the get-together. Is this sexual harassment even though this happened outside the office premises?
Since the get-together has been organized by the office it will come under the SH act. “The places include establishments, offices, locations or units, etc, established, owned, controlled by the company or places visited by the employees out of or during the course of employment including accommodation, transportation provided by the employer for undertaking such journey," explains Paliwal.
While it is possible to take help from the ICC, Dhru believes that the first thing to do is confront in a strong and affirmative manner. Another thing she asks a lot of people to follow is confide in a trusted colleague. Tell her or him that you are being harassed, that someone is following you or making comments which makes you uncomfortable. Let the colleague keep a watch on you for a few days. “Often women feel guilty and think they might be ‘over-thinking’. This helps dispel those doubts," she says. She further suggests keeping a diary of the events which can be useful when submitting a written complaint.
After a late-night office party or meeting, a colleague offers to drop you home in a private cab or in his car. He misbehaves with you. Is this sexual harassment even though this happened outside the office but right after an official engagement?
There are two things to consider here. If you and the colleague have been travelling in a company cab and company designated vehicle, then it will definitely constitute as sexual harassment at workplace, interprets Raghavan.
However, if a company transport was arranged and the employees’ still chose to take a private cab, it would not fall within the scope of ‘workplace’, he clarifies. “Similar to the earlier situations, if the colleague’s act of harassment is likely to interfere with the victim’s work or create an intimidating or offensive or hostile work environment for her, then the ICC of the company would have the ability to initiate an inquiry," he says.
Things to know about the Internal complaints committee
It is important that you find out if your company has a ICC in place. It is mandated by law that every company with more than 10 employees have:
■ A policy against sexual harassment
■ A trained ICC with one external member
■ Conduct an all employee, mandatory training on what is sexual harassment and how to seek help within the organization
—Chryslynn D’Costa, head, diversity and inclusion, Serein