#MeToo! The dummies’ guide to sexual harassment at workplace

With the #MeToo storm hitting India over the last week, Anupama Chandra explains the legal aspect of safety at the workplace

Individuals who cross borders without permission are jailed, no questions asked. After all, borders exist to protect and any violation of this sacrosanct boundary is a crime. So why is it that half the human race is still being denied the right to their own space and their choice to say “NO” to others crossing their boundaries without permission?

In India, actress Tanushree Dutta made history by opening the floodgates of the #MeToo movement ten years ago and churning it again a few days back. With the resulting deluge, many questions are being bandied about—what is sexual harassment (SH) at the workplace; how to know for sure it is not flirting but SH; etc. We bring you some answers…


 
What constitutes SH?

First and foremost, the definition of SH is not limited to making inappropriate sexual or physical advances. As in the case of many accused, such as MJ Akbar and Rajat Kapoor, it includes any unwelcome verbal or physical behaviour of sexual nature that creates a hostile, degrading and humiliating work environment. As per the law, SH includes any or more of the following unwelcome acts:

(i) Physical contact and advances; or
(ii) A demand or request for sexual favours; or
(iii) Making sexually coloured remarks; or
(iv) Showing pornography; or
(v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.


 
Secondly, as Pallavi Pareek, Managing Partner at legal compliance advisory Ungender, specifies, “SH at workplace is generally coupled with promises of preferential treatment, or, in case the demand is turned down, detrimental treatment. Hence, any such threats related to survivors’ employment status or work, creating an intimidating, offensive environment that affects their health and safety are indicators of SH.”

The movie Inkaar highlighted sexual harassment at workplace

Lastly, the law also understands that SH at workplace may happen similar to other aspects of one’s personal life. Hence, there is a strong emphasis on the survivor’s perception, and verifying the context of a perpetrator’s intentions. While the law provides an opportunity to both parties for a fair investigation, it gives due importance to “how” a specific incident left a survivor feeling.

When does SH become a case of workplace SH?

Independent legal practitioner Vishwabhushan Kamble explains, “There is no legal provision to filter unwelcome flirting/making a pass from workplace SH. As in any SH case, the perception of the survivor is key for workplace SH cases.”

Pareeks sums it succinctly, “Think of all the instances of SH faced by any survivor; if at the time of the misconduct, the setting of this person and the perpetrator was related to either’s professional work, and then it is workplace sexual harassment.”

Law pertaining to SH @ Workplace

Working women are covered under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This law confirms that employees’ safety is the company’s responsibility and assures timely confidential redressal in case of SH. Some key guidelines and mandates of this law are as below:

– Each company has to mandatorily form an Internal Committee (IC) with an External member on board. Each office having over 10 employees requires a separate IC.

– The IC has to adhere to legal guidelines while addressing SH complaints and investigations.

– Each company should draft a comprehensive SH policy document and display notices conspicuously in their workplaces about their stance on SH misconducts and contact details of the IC.

Kamble reiterates, “Forming a law is just the beginning — the government should encourage establishment of more NGOs that spread legal awareness and support SH survivors. Amendments are also necessary to ensure speedy justice in SH cases.”

What steps should employees threatened by SH take?

On coming face to face with SH, employees must immediately reach out to the company’s IC or the Local Complaints Committee (LCC). “Employee should register a complaint with either the IC or LCC. Further, an FIR should be filed under Section 354A with the police,” Kamble reckons.

“Companies should realise that it makes more sense that aggrieved employees reach out to them instead of taking recourse on social media or to courts. The law is fair in that it cares for the survivors’ and the company’s well-being,” Pareek clarifies.

What more can be done?

Kamble continues, “Corporates should first incorporate and implement the law. The movement has shown just how widespread SH is. Perpetrators are not reported and punished at the first instance, hence they offend repeatedly. Therefore, it is necessary that legal experts see to it that such offenders are disposed adequately and speedily.”

“We need to first educate workplace leaders and enforce guidelines,” agrees Pareek.

 For more information regarding SH @ workplace, you may contact Pallavi Pareek at pallavi@ungender.in.

 For more clarity, here is checklist of probable SH scenarios: 

–  If a survivor met a client and experienced misconduct…  

– At an event of a celebrity, someone experiences SH by them …

– A startup founder/employee meets an investor with work agenda and faces SH…

– An applicant appearing for an internship or a job interview experiences SH…

– Any two people, party to a SH misconduct, were present in a situation, in person, over WhatsApp, a phone call, skype, sms, for reasons related to their work

  ……..— that is workplace sexual harassment.

 

Frequently asked questions by men: When does flirting stop and SH begin?

“‘How are we (men) supposed to interact with women at workplaces if only the women’s perception is considered?’- We get this question all the time,” smiles Pareek. And what is the answer? “Simple! Behave in a professional manner. Follow this simple rule – ask yourself two questions:

Are my words or actions (such as whistling, winking, random touching, flirting, singing, etc.) essential to my work?

Are such words or actions enhancing the quality or efficiency of my work?

Our experts agree that if answers to these questions are ‘No’, then don’t do it. If you do, you are perpetuating SH and it is only a matter of time before #TimesUp. If you like a lady, it’s best not to mix it with work. Establish clarity with consent in a personal sphere and only then consider going ahead.

Be professional and play safe!

What should corporates do?

Educate your employees on what constitutes SH – and what is appropriate and inappropriate workplace behaviour.

Educate your employees (especially women) on the procedures of investigation and redressal that is designed for SH complaints.

Educate your employees (especially women) on the specifics of the working principles of the IC.

 

 




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