Advocate Amba Salelkar.
Advocate Amba Salelkar.

#MeToo: Lawyer Amba Salelkar on how organisations can make workplaces safer for women

Amba Salelkar says that companies need to focus more on prevention of sexual harassment

In light of the #MeToo allegations in India over the past week, organizations of all stripes need to get more serious about sexual harassment in the workplace. Amba Salelkar, advocate and fellow at the Inclusive Planet Centre for Disability Law and Policy in Chennai, spoke to Lounge on what needs to be done next. Edited excerpts:

Broadly speaking, how do internal complaints committees (ICCs) work, or should work, under the ambit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013?

The Act has guidelines which says that an ICC should be constituted with at least four members—the chairperson being a senior woman in the workplace and there should be at least two other members from amongst the employees. There also needs to be an external independent member. Now, because there aren’t as many women as there should be in higher positions of management, sometimes companies find it quite a struggle, because a majority of this team should be women. The other problem that companies just don’t seem to realize is that they need external members. It needs to be somebody who has no interest tying them to the company.

Training members of the ICC is equally important, isn’t it?

Training of ICC members is something that’s mandatory under the Act. But I don’t think that it is given the kind of seriousness it requires. As an inquiry committee, it needs to be following the principle of natural justice, it needs to protect the interest of employees, particularly the complainant. And it’s really important that the members are trained not only on the law and procedures but also to confront their own biases. Right now, everybody who’s being named says that they are submitting themselves to the jurisdiction of the ICC regardless of how it’s been constituted. I think when the furore dies down, the accused persons will take issue with ICCs that are not properly constituted before higher courts, and then it’s a concern.

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What is the jurisdiction of the ICC, and what are the definitions of ‘employee’ and ‘workplace’?

There are some preliminary requirements which have to be met for the ICC to have jurisdiction. One is that the act which is being complained on is one of sexual harassment. It essentially means that it is an unwelcome act of a sexual nature. Now, the second thing is that the act should have been committed by someone who is an employee of the company. A complainant need not be an employee of the company. The respondent has to be. And the third is that the incident should have taken place in the workplace. Both “employee" and “workplace" have wide definitions. Employees include people who are interns, volunteers, consultants, and so on. And workplace is quite wide in the sense that it not only includes the office cubicle, but also the larger office space, or places in the office where you’re not working. If you’re travelling on work, it includes transport, the accommodation you have in that place, it includes meetings. It also includes off-sites and after working hours fraternization between employees. Say, you’re on the Slack server, and somebody sends you a d*** photograph, even if you’re working from home, you know, it is still a workplace.

There’s also a lot of apologia on social media where people are splitting hairs over what constitutes sexual harassment.

Sexual harassment can extend from people making unsolicited comments to actual rape. So there’s a spectrum. And a lot of the questions revolves around what is unwelcome. It’s like applying common sense. There are some things from which I guess you can move on and some cases where you can’t. Sending somebody pornography, sending somebody d*** photographs; they can’t unsee these right? If you’re embracing somebody or putting your hands in somebody’s pants, it’s not something you can just forget. You can’t make public comments about somebody’s sex life. I think in those cases you don’t need to apply a sort of “unwelcome" test. It’s basic common sense. Of course, expressing the fact that something is unwelcome is what people should ideally do, but we know it isn’t always possible and a lot depends on the circumstances.

As an employee, could you make an anonymous complaint to your organization?

The question we should really be asking is if someone is filing an anonymous complaint because they don’t trust the mechanism. In the Act, Section 19 talks about the obligations of the employer, in general, to ensure there’s a safe working environment. Say a person is named in a list as a sexual harasser, and is also an employee at a company. As an organization, how do you make sure that you’re in a safe working environment? HR could use this opportunity to start talking to women in the organization. Ask them if they’ve had similar experiences about this person, is this something the company needs to worry about? Give space to people to raise these issues. The ICC, with all its limitations, isn’t going to solve all your problems.

Many of those outed are from the media. How should media houses improve their record?

I think each organization is kind of unique, so a boilerplate sexual harassment policy has its limitations. Organizations need start drafting these policies from an employee perspective. We also need to start having conversations, and also talk about how to have these discussions. Right now, you know it’s difficult. I think media houses, and people who teach at media colleges, need to start talking about sexual harassment. People in the media are at significant risk of sexual harassment during work when they’re meeting others—sources or interviewing people. That’s what we’ve been hearing a lot. If you’ve been sexually harassed, say, by a member of Parliament, who you’ve gone to meet because he’s a member of Parliament, then it counts as sexual harassment in the workplace. Can we be sure that media houses will back women who want to file a complaint at other workplaces? One hopes that people will introspect about interpersonal relationships and their conduct, but that may not happen in the very charged environment right now, where everyone is looking at things in black and white. But it is a conversation that needs to happen.

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