Boss, here’s what the to-do list is missing

As the jury begins deliberations, now that both sides have presented their arguments in Hollywood director Harvey Weinstein’s rape trial, the #MeToo allegations and workplace sexual harassment are back in the headlines. Over the past few weeks, six women offered testimony, with details that have been distressing and painful to even read, and the outcome of the trial will, in a way, indicate how much of an influence the movement has had on society and systems at large.

In India, since 1997, when the Supreme Court issued guidelines on prevention and redressal of workplace sexual harassment in the Vishaka and Others vs The State of Rajasthan case, with each high-profile case, there have been questions about institutional protections for women workers.

These questions have only intensified with the 2017 wave of #MeToo allegations in the US, and since October 2018 in India. What will be the fate of India’s #MeToo accused and, by extension, those brave enough to make public allegations?

Two years ago, when Indian women began to make public allegations of the men who had harassed them at work, a public list was created to name and shame accused harassers. The list was controversial. For some, it was a platform to finally articulate what they had experienced and name perpetrators, and for others, it went against principles of natural justice and due process. What the list did in a crystal clear fashion was illustrate how inhospitable Indian institutional cultures are to women who want to share their experiences of harassment.

Even when institutions are nominally compliant with the law, women, especially young women, have no confidence in their ability to deliver justice.

What would it take to ensure that an organization would stand by women employees? Both the Vishakha Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013, require companies to have a clearly written policy against sexual harassment at the workplace.

The first step

For most organizations, once they realize that such a law exists and they meet the size criterion to have their own committee, the process begins with a consultation with lawyers or a non-profit they know.

The first step is to draft a policy because everything follows from that—definitions, the complaints process, the committee and the awareness training. Once the policy is in place, a committee must be formed as specified by the policy and in keeping with the law. These are the visible elements of compliance and for many companies, the checklist stops here.

But at the heart of the law is rights, and this is the main point an organization misses if it only talks about compliance as a checklist. Organizations and their human resource teams tend to approach compliance from the point of view of avoiding litigation landmines, and not truly following the essence of the law.

What is the spirit of the law? The Vishakha Guidelines open with a reference to human rights as “the rights relating to life, liberty, equality and dignity of the individual” and then states, “It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts, of sexual harassment by taking all steps required.”

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act too takes a similar approach, and opens by calling sexual harassment a “violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, which includes a right to a safe environment free from sexual harassment.”

Women and girls (and men and others) have the right to choose what work they want to do, to seek the training they want to pursue, to work in safe, decent and humane conditions, and to receive equal pay for equal work. This follows from our human and fundamental rights—to life (ergo livelihood), to equality, and to liberty.

After years of conducting workplace sexual harassment awareness training in organizations of different sizes, I have gone from a simple explication of the issue and the law to locating my training in the very political context of rights.

I do this as a reaction to the most common corporate approach towards implementation of the law: compliance.

Over the years, I have come to the conclusion that compliance is easy, or at least, this sort of checklist compliance is easy. You get someone to draft a policy, you set up a committee and post names somewhere, and you more or less forget about it, while the human resources department (making up a substantial part of your committee) takes care of the reporting requirement in some way. You may even organize training sessions or require employees to take digital training. Compliance, checked off.

This is merely complying with the letter of the law, and while it is required, measurable and punishable, it really is not enough.

Since the passage of the law, two kinds of organizations offer training.

The first to start training programmes were women’s organizations. It was a collective of such organizations that filed the case against Rajasthan following Bhanwari Devi’s rape. She was raped as “punishment” for doing her work and her employer failed to protect her. The Vishakha case framed the issue in terms of equal right to safety at work and this echoed through the guidelines and the law. For women’s organizations, the right to equality and the right to decent work with dignity are at the heart of this work.

The second category of organizations have been set up by human resources professionals who have correctly identified a growing market for a range of services. They come from management and corporate backgrounds. Their work may be anchored in the language of “diversity and inclusion” programmes in large companies. Working from the point of view of companies, they help companies meet their basic requirements and avoid complaints and litigation.

In this age when the measure of everything is the standard of the market, we make the case for compliance in terms of productivity, profit and reputation. Over the years, I have felt deep frustration at these instrumental arguments. If compliance is confined to checking off policy, committee and some training from a list of requirements, it misses the point. For feminists who help organizations with the compliance process, compliance itself is just the beginning. We are looking at a changed work environment altogether, where equality, and not merely safety, is the goal.

Without going beyond the patriarchal discourse of protection and safety of women and beyond the capitalist discourse about productivity losses and brand equity damage, we cannot create workplaces where each person can grow at their best.

In a workplace fraught with awkward tensions and anxieties created by impunity, you cannot build first-rate teams. Implementing the letter and the spirit of the Vishakha Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 as a point of departure on the journey towards a more equal workplace, you signal your commitment to that goal. The heart of the law lies in creating a workplace where all employees have equal rights.

Swarna Rajagopalan is the founder of Prajnya, a non-profit that works in the area of workplace safety and equality.

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