Bias is a running theme in the conversation on sexual harassment inemployment and workplaces. The recent ruling of the Central AdministrativeTribunal’s (CAT) Bangalore Bench in a series of petitions before it, whichrose out of the gross misapplication and poor understanding of the law,
The enactment of the SexualHarassment of Women atWorkplace (Prevention,Prohibition and Redressal) Act,2013, (‘POSH Act’) has received alukewarm response from the employmentsector. Awareness of the law, especially itsapplicability and compliance requirementslisted thereunder, is sketchy at best. Fewemployees are informed of their rights andvarious redress mechanisms whileemployers view the law with suspicion andmisgivings.
For trainers, lawyers and most membersassociated with this field, more often thannot, the first concern voiced by employersis that of misuse of the law. Many perceiveit to be akin to the dowry prohibitionprovisions of the Indian Penal Code, 1860,(‘IPC’) and anticipate a flurry of falsecomplaints.Regretfully, this situation has beenexacerbated by the recent ruling of theCentral Administrative Tribunal’s (‘CAT’)Bangalore Bench in a series of petitionsbefore it that rose out of the grossmisapplication and poor understanding ofthis law.
In July 2014, the CAT’s Bangalore Benchheard petitions in four different cases thatarose out of the application of the POSHAct. The four cases occurred in theKudremukh Iron Ore Company Limited, theEmployee State Insurance Corporation, theNational Institute of Mental Health andNeuro Sciences, and the Department ofPosts.
These cases appear to have occurred out offalse complaints. In all cases however, thelack of training of committee members andineptitude of organizations to handle thematters is apparent.In its judgment, the tribunal observed thatpublic outcry on the increased assault onwomen has created a climate of fear andterror amongst senior management oforganizations, leading to dismissals ofemployees in cases where sexualharassment is alleged against them.The tribunal went on to find Sections 4 and7 of the POSH Act that outline thecomposition of the Internal ComplaintsCommittee (‘ICC’) and the Local ComplaintsCommittee (‘LCC’) as unconstitutional. Thetribunal found the composition of suchcommittees to be biased since two membersof such committees must be committed tothe cause of women, as stipulated by thecurrent provisions of the law. Such apremise “destroys the concept of fairness”,thus vitiating the composition andconsequently, the proceedings of suchcommittees, the tribunal opined.While the judgment of the tribunal echoes adeeply rooted fear amongst employers in amale-dominated employment sector, it issubmitted that the committees (asenvisaged by the POSH Act) suffer from agreater malaise of bias, but of a differentkind.
Let us consider the composition of the ICCas mandated by Section 4 of the POSH Act.ICCs are to be appointed by the employer,but the law does not indicate any particularmethod of appointment such as internalelections within the organization or anindependent manner of nomination bymembers of the management.
A pattern seems to be emerging whereby inorder to comply with the letter of the law,employers are appointing old, trustedemployees and members they consider tobe malleable, to such membership of theICC. Further, the law provides no legislativeprovisions to challenge the composition ofthe ICC should a complainant or arespondent wish to do so.
Not only is the POSH Act silent on atransparent and independent method toappoint members to the ICC, but also someof the grounds for removal of members ofthe ICC are only too open to manipulation.For instance, Section 4 (5) (c) permits theremoval of a member of the ICC if there aredisciplinary proceedings pending againsthim or her. In an atmosphere of distrustwhere employers exercise unchallengedfreedom to constitute ICCs, it is but amatter of time when such broad provisionsare manipulated to affect the outcome ofinquiries into complaints of sexualharassment within organizations. In fact,concerns as to the impartiality of internalredress mechanisms and their in-housestatus acting as a deterrent to victimsseeking redress had already been voiced bythe Justice Verma Committee’s Report.
There is an urgent need to clarify theparameters of qualification and experiencefor the appointment of external members tosuch committees, but it is also necessary toensure that such persons maintain anindependent point of view which is distinctfrom that of the employer. Further,members to such committees must be wellversedin gender-sensitive concepts anddispute resolution mechanisms that focuson women’s rights if the intent of the law isto be achieved in its entirety.
Rule 7 (4) of the Sexual Harassment ofWomen at Workplace (Prevention,Prohibition and Redressal) Rules, 2013,(‘POSH Rules’) outline the mandate ofComplaints Committees to be governed bythe principles of natural justice in theexecution of their functions.In its judgment in the four cases mentionedabove, the tribunal indeed highlights theflaws in the inquiry proceedings of theorganizational committees such as denial ofa respondent’s right to cross-examinewitnesses. It is apparent that a lack ofunderstanding and appreciation of the truenature of complaints committees isbreeding a sense of apathy and disinterestamongst employers and members of suchcommittees. In the absence of clearlegislative directives outlining atransparent and independent method ofappointment of members of suchcommittees and guidelines on their skills,aptitude and training, these ICCs stand littlechance of being robust redress mechanismsthat are capable of delivering justice, aswas envisaged by the spirit of the law.That the members of such committees mustbe provided regular and extensive trainingin investigation and dispute resolutionmethodology in order to equip them tocarry out fair and just inquiries intocomplaints of sexual harassment isirrefutable. Lack of awareness of the rolethat forensic evidence can play indetermining facts with greater accuracy is afundamental lacuna still prevalent inIndia’s justice system. Reporting sexualoffences is one of the most difficultchallenges for a victim, especially in itsimmediate aftermath. With the provision ofswift, easy-to-access, and efficient medicolegalassistance, reporting of sexualoffences and accurate investigations mustbe given greater emphasis. The role offorensic evidence must be recognized andstakeholders such as ICCs, employers andemployees must be provided up-to-datelegal literacy to encourage better reportingof such crimes.
Section 11 (3) of the POSH Act empowerscomplaints committees to summon andenforce the attendance of witnesses,examination of witnesses on oath, thediscovery and production of documents andany other matter prescribed similar to thosevested in a civil court under the Code ofCivil Procedure, 1908 to try a civil suit.These powers are extensive in nature, butfew committees are aware of their fullextent or indeed, have the wherewithal toexercise them. Further, as ICCs are largelydependent upon the employers of theirorganization for funds and other logisticalsupport, they are hesitant to exercise theirpowers in a manner that may be perceivedas antagonistic to the employer or theorganization.
Especially in the context of sexualharassment at the workplace where amajority of incidents involve conflictingtestimonies between the victim and theperpetrator, the role of evidence must behighlighted. Situations such as thoseoutlined in the four cases before thetribunal could be avoided by well-trainedICCs operating independently of theshadow of their employers.
Swift, consistent and effectiveimplementation is the key to a healthiersocial fabric that provides protectionagainst gender-based violence. Justice mustnot only be done but must be seen to bedone.
The fact that sexual harassment of women(mostly by men) in workplaces is rampantand mostly unreported is well documented.
“Male dominance is a crucial factor. Thiswas supported by Coles (1986) who notedthat sexual harassment is most often apower play opposed to sexual desire.Further, Wilson and Thompson (2001)argued that it is primarily about menexercising power over women. They statedthat sexual harassment is connected withdisadvantaged status of women at workand subordinate position in society. Mostlyit is used as a weapon to punish womenwho deviated from traditional gender roles(Berdahl, 2007).”
Victimization (that is, unfair treatment of aperson based on perceived inequality ofvarious factors such as gender, sex, age,socio-economic standing, etc.) in sexualharassment can occur at three stages in thelife cycle of an incident of sexualharassment incident as illustrated below.
It is submitted that the POSH Act fails toprohibit and minimize retaliation againstvictims of sexual harassment as it does notcontain adequate provisions to addressvictimization through retaliation or thirdpartyhostility.
It could be argued that Section 12 of thePOSH Act empowers complaints committeesto issue interim directions that affordvictims some relief (such as paid leave inaddition to any other leave they may beentitled to). Similarly, they may direct thevictim or the perpetrator to be transferredto another workplace of the employerduring the pendency of the inquiry.However, this catch-all provision puts theonus on the victim to anticipate the reliefrequired and apply for the same. This is counter-intuitive to the spirit of the lawthat is focused on easing the trauma of avictim of a sexual offence. Further, the lackof decisive legislative provisions to reducethe trauma of a victim by facilitating apositive atmosphere at the workplaceduring the pendency of an inquiry andafter its conclusion leave the matter in thehands of organizational policies that arevery often, silent on such issues.Perhaps one of the greatest failures of thePOSH Act is the absence of precisedirections to protect victims of sexualharassment from retaliatory actions by theemployer or any other person, in relation toher employment, especially after theconclusion of inquiries. One of the lesserknown strengths of the Vishakha judgmentis the recognition of the structural andsystemic nature sexual harassment atworkplaces. There is ample evidence toshow that female employees of sexualharassment who challenge their employersfor non-compliance with sexual harassmentlegislation or who complain against sexualharassment by male colleagues who mayhold a superior position in the organizationare often terminated from employment.Victimization of any kind stems from avariety of perceptions and beliefssurrounding sexual harassment including afeeling of disturbance of traditional powerdynamics within the organization, a wishto ‘nip the problem in the bud’ byeliminating any form of dialogue around itor even to prevent loss of branding orreputation to the organization or theperpetrator (especially if the perpetratorholds a position of authority or is a figurepublicly associated with the organization).Effective implementation of anti-retaliatorymeasures varies drastically fromorganization to organization dependingupon the vision of the senior managementand their commitment to compliance withthe letter as well as the POSH Act.Organizational and employer-based bias isa dominant factor in the formulation andimplementation of such processes. In orderto curb this trend, it is vital that clear anddefinitive guidelines be laid down toprotect victims of sexual harassmentagainst compounded trauma and misery.
Bias is a running theme in the conversationon sexual harassment in employment andworkplaces. There is a disturbing trend todistrust and dismiss voices that speak upagainst such behavior in organizationalstructures. It is vital to recognize thataccess to fundamental human rights suchas the right to live and work with humandignity cannot be subject to any frameworkexcept that of the inviolable Constitution ofIndia. Therefore, it is necessary that thebias and prejudice that has crept intovarious facets of the redress mechanism ofthe sexual harassment law due to a lack ofclear and concise legislative mandates mustbe eliminated at the earliest.
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