What the judgment of the Supreme Court in Vishaka v. State of Rajasthan (1997) did not do; what even the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) did not do; the #MeToo movement has done – which is to wake up every corporate entity in India to take sexual harassment as a serious malady and not merely a thorn in its side.
The recent spurt of awareness programmes at workplaces; hasty formulation of complaints processes; hushed but expedited setting up of Internal Complaints Committee (“ICC”), are all welcome momentum in the inertia-ridden corporate world.
Not surprisingly, the natural knee-jerk reaction to anything disruptive and the consequent overreach have also already reared its head. Many a corporate romance does end up in a lifelong relationship and even if they don’t, it is still a consensual relationship between adults who may decide the course of such events. A query at a recent panel discussion on #MeToo and corporate romances highlighted the fear factor that now permeates corporates and male colleagues alike.
The larger threat to women appears to be the possibility of employers shunning them, as a risk element in workplaces or worse mollycoddling women employees in their fear of any “stigma” impacting the corporate entity. Equally unfortunate that many companies appear to have resorted to play it safe than be sorry by “banning” romances or at least subjecting them to monitoring. Apart from policies mandating disclosure of personal relationships amounting to blatant violation of privacy, it also brings in the “chilling effect” at workplaces.
Knowing the Laxman Rekha for sexual harassment is expedient to avoid such excessive or regressive actions.
Sexual harassment in the eyes of law: The Act sets out an inclusive definition for sexual harassment but the Criminal provisions under S.354A Indian Penal Code is limited to specific actions. Of these, unwelcome physical contact and advances, explicit sexual overtures, demand or request for sexual favours and showing pornography against the will of a woman carry a more stringent punishment of three years, as opposed to making sexually coloured remarks, which is punishable with one year imprisonment.
In addition, a person in a fiduciary relationship abusing his authority to induce or seduce a woman in his custody or charge or even present in the premises to have sexual intercourse, which may not amount to rape is also an offence punishable under S.376C IPC with six years imprisonment.
Against this, the Sexual Harassment Act provides an open-ended inclusive definition. Implied or explicit promises of preferential treatment or threat of detrimental treatment including in present or future, in employment; interference with her work; creating an intimidating, offensive or hostile work environment; humiliating treatment likely to affect her health or safety are all acts amounting to sexual harassment under the Act.
Corporate policies for internal penal actions may, therefore, be more stringent than those under IPC for initiation of criminal prosecution. These, however, would have to be explicitly set out in the human resources policies to support such initiation of action. Any corporate action against culprits would have to be preceded by an inquiry by ICC.
Women — not just employees — protected: Corporate policies need to take into account that it is not just women employees but “any woman” present at a “workplace” who is protected under the Act. The Act is gender-specific to “women”, as victims but is gender neutral with respect to the perpetrator, i.e., complaint against a woman may be entertained for commission of sexual harassment against another woman, subject however to other provisions being applicable.
Workplace & The Act: In today’s hyper-connected world every place in effect would become a workplace. The Sexual Harassment Act itself expands the workplace not just to the office premises but also to places visited by employees in the course of employment including transportation provided by the employer. It would therefore include even online workspaces.
Purpose & its implementation: With the application of the Sexual Harassment Act extending to any woman present in a “workplace”, enforcing excessive or possibly restrictive protections to women employees is clearly misplaced. Similarly, placing employees in different hotels or mandating travel by co-workers on different vehicles reeks of segregation processes in schools and colleges. If not anything else it certainly demonstrates abject lack of trust. Most significantly, none of these actions, including restraining or restricting office romances or travels together or other regressive processes is likely to protect against commission of an act of sexual harassment.
Short of restricting all forms of communication between the two genders, which clearly is not just impractical but impossible, there is no way for corporates to create Chinese walls to protect against complaints of sexual harassment – for a man may commit an offence against a woman employee (yes the law is gender specific) or against a non-employee. If the act is committed at a “workplace”, which could even be a coffee shop where a meeting is being held or even during a conference call, the ICC of the entity is required to entertain the complaint.
It is imperative for corporates to understand that the law is not “against” them. Nor is it intended to become yet another restrictive and regressive step for women. It is intended as a facilitator for women to freely venture out and be part of the workforce. The law is for and about women. Experience has taught us that any attempt at keeping statistics “clean" will only defeat the purpose behind an enactment.
Registration of a complaint with the ICC is not a blot on a corporate entity or a stigma. On the contrary, it reflects the robustness of its sexual harassment policies and implementation. It is not important to protect adults against each other especially against their natural urges or choices. The decisions of the Supreme Court from the Privacy judgment to the recent strike down of adultery as a Criminal offence demonstrate the need to protect an adult’s consensual choice.
The need of the hour for companies is to, therefore, put in place effective processes for undertaking complaints of sexual harassment boldly and transparently and to ensure speedy and just disposals. The measure of a company’s worth or safe workplace may probably now depend not on a “clean slate” with no complaints registered but of effective, speedy and conscientious handling of sexual harassment complaints, which is a more plausible measure.
The writer is an Advocate, Supreme Court and Bombay High Court specialising in cyber laws.
It is imperative for corporates to understand that the law is not “against” them. Nor is it intended to become yet another restrictive and regressive step for women. It is intended as a facilitator for women to freely venture out and be part of the workforce.