How Should HR Handle a Sexual Harassment Case When the Victim Is Afraid to File a Complaint?

Aggrieved Woman Employee-Complainant Unwilling to File Her Sexual Harassment Complaint?

The aggrieved woman employee personally meets the Presiding Officer and Woman Employee-Member of the Internal Committee of an IT establishment on 20.8.20. She narrates a series of sexual harassment incidents she was subjected to by her immediate superior for the past four months. The IC members ask her to file/submit her written sexual harassment complaints immediately, but she expresses her unwillingness to give any complaint in writing due to apprehensions and returns to her work desk.

The IC members remind her two times to file her sexual harassment complaints as discussed.

What should the IC do now, or what should her employer do?

Guidelines are welcome and, in fact, solicited to effectively deal with such cases.

Harsh Kumar Sharan, Kritarth Consulting Pvt Ltd Spl Educator PoSH Mandatory Programs, External Member, Internal Committees PAN India #holistichr #PoshMasters 28.8.20

Dear all, there are two issues involved in this post: one is legal and the other is the organization's culture.

Legal Issue

First, let us discuss the legal issue. While investigating sensitive cases like sexual harassment, it is important to conduct an investigation within a proper legal framework. Against this backdrop, it is important to receive a written complaint. A written complaint is the starting point of an investigation. The Internal Committee (IC) cannot function like the erstwhile "village panchayat" where verbal complaints were accepted and discussed.

Organizational Culture

The second issue is the organization's culture. The woman's hesitation could be due to the following reasons:

a) She fears that her name could get publicity.

b) Whether the grievance is about sexual harassment or otherwise, a company must create a culture of justice. If employees perceive that such a culture does not exist, it will consequently impact the sexual harassment complaint as well.

c) The fact that the woman endured sexual harassment for the last four months speaks volumes. How did her tormentor muster the courage to do that? Should we interpret that her tormentor enjoys some protection from the top management?

Additional Comments: If it is true that the woman employee endured sexual harassment for the last four months, then how come her body language was not picked up by other colleagues? Nowadays, everyone boasts of being an expert in reading body language. What happened to the "vibes" that the woman sent through her body language? Why did nobody pick up these vibes?

If it is true that sexual harassment went on for four months, then why were the other colleagues silent? Why were other women also silent? Why did none of them come forward to report to HR about their colleague's harassment? When a person meets with a road accident, not necessarily do Indians come forward to give timely help. Rather, they prefer to be bystanders and express their sympathy. Has something similar happened with that woman as well? Did other colleagues show apathy towards her suffering?

If it is true that sexual harassment went on for four months, then it shows the overwhelming failure of HR as well. What was HR doing? What happened to their "employee engagement" initiatives? Why was HR disengaged from the ground realities? Why could they not find out about this harassment through their informal sources?

Thanks,

Dinesh Divekar

Addressing Sexual Harassment in the Workplace

Our esteemed member Dinesh has raised pertinent issues regarding the instance cited. It's an undisputed fact that women in our country (not only in India but also worldwide) are vulnerable to such harassment day in and day out. This issue is more prevalent in the unorganized sector and is often tolerated by poorly paid laborers and female workers. We are aware that the Internal Committee (IC) cannot proceed without the formal filing of complaints. Additionally, even if a complaint is filed, factors such as the fear of weak rhetorical skills, lack of witnesses, potential victimization, and the fear of losing one's job hinder victims from speaking up. Most of these crimes occur behind closed doors, which presents additional challenges to be addressed.

The Role of Surveillance Technology

In this age of CCTV technology, surveillance gadgets should be installed everywhere, capable of recording voices and sounds, which could, to some extent, facilitate the investigation process.

Addressing Sexual Harassment in IT Companies

It is surprising that the IT company didn't know how to handle this situation, especially after several similar incidents have occurred in IT companies. There are several criminal acts like "Nirbhaya," "Disha Acts," and other judgments. You can find information on women's sexual harassment through a Google search.

There is no need for cases like this to be documented in writing. An oral statement to higher authorities is sufficient for transferring the individual and separating the two parties with different tasks. Conduct a fact-finding inquiry and take appropriate action if necessary. Our ultimate goal is to ensure the safety of women from such harassment and provide a free and fair work environment where every woman can work happily with the freedom promised by the constitution to every citizen, regardless of gender discrimination.

It is not about whether the woman is mischievous or the accused is innocent. The important thing is to uphold the image of the company's office branch.

Implications of Accepting Oral Complaints on Sexual Harassment

You have recommended that the Internal Committee (IC) can also take oral complaints. Regardless of the legal position, we need to discuss the implications of accepting oral complaints.

Complaints of sexual harassment are serious. They involve the dignity of both the woman and the accused. Given this, an aggrieved woman should be encouraged to file a written complaint. Women in the 21st century are expected to be assertive enough to do so. If working women do not have the courage to submit a written complaint, it contradicts their background, grooming, and education.

The Example of Nirbhaya

You mentioned Nirbhaya as an example. Nirbhaya endured the worst kind of sexual assault and was physically tormented. Despite her ordeal, she provided evidence to the police. Her attackers had maimed her, and she couldn't speak, yet she responded to the police's questions in writing. If Nirbhaya could do it, why can't a working woman in an office do the same?

Concerns with Encouraging Oral Complaints

Encouraging oral complaints has its downsides. What if a woman makes an oral complaint, but the IC members do not entertain it? What evidence will she have of her oral complaint?

Potential for False Accusations

As forum members, we are third parties and should view each case dispassionately. Not all women are as innocent as they may seem. If oral complaints are encouraged, a woman might falsely accuse a male colleague of sexual harassment to settle a score. What if a male employee faces an inquiry by the IC despite being innocent? His character would be scrutinized, and it would be difficult for him to continue with the taint.

False allegations of sexual harassment have existed for a long time. Even Lord Gautam Buddha faced such accusations. Therefore, we should focus on delivering justice rather than being overly emotional, even in cases of sexual harassment.

Thanks,

Dinesh Divekar

Addressing the Issue of Women Not Taking Formal Action

Mr. Harsh Kumar has raised a very common issue in our country where the majority of women do not take formal action against perpetrators. There are numerous reasons for this, and many studies have been conducted on this topic.

Our esteemed members have contributed significantly to this discussion. They are all dignitaries.

Merely providing oral statements to higher authorities is insufficient. It is imperative for aggrieved women to file a written complaint as per the law. In cases of physical incapacity, the complaint can be submitted by a relative, friend, co-worker, or any individual with knowledge of the incident, with the woman's written consent. In instances of mental incapacity, the complaint can be lodged by a relative, friend, special educator, qualified psychiatrist, psychologist, or the authority responsible for her care. In the event of the woman's death, a legal heir or authorized person can file the complaint.

Importance of Written Complaints Under the POSH Act

I have detailed these points to emphasize that a written complaint by or on behalf of an aggrieved woman is crucial for proceedings under the POSH Act. The Internal Committee (IC) must initiate its process only upon receiving a written complaint. It is essential not to rely solely on Google search.

The IC has a responsibility to assist the aggrieved women in submitting the written complaint. Merely reminding her twice to file the complaint is insufficient. Extra efforts such as providing necessary counseling, showing empathy, and acting emphatically are required.

Need for Awareness and Orientation Programs

There seems to be a failure in conducting awareness and orientation programs, leading to a hostile environment within the organization, in my opinion.

I hope I have addressed the concerns raised by Mr. Harsh Kumar.

I agree with your content. I wish to clarify that I referred to Nirbhaya as an Act, not as a person. The Nirbhaya Act contains several dos and don'ts for every situation, including in offices.

Moreover, I am not supporting any mischievous women with personal intentions and provocations. It was understood that in the above case, the IC was already allotted and convened a meeting with both parties, requesting her to give a written complaint. However, she didn't; instead, an oral report was brought to the notice of the IC.

I opine that nothing is hindering the IC from making a thorough inquiry on the above issue with the oral report.

I don't suggest severe punishment either. To avoid nuisance in the office, separate them to different places as the IC has come, and immediate attention was taken. Then, if it repeats, follow CCA rules if applicable.

Everyone should remember that Acts are made above ground realities. That's why several amendments are required now and then.

So, compelling a written complaint is essential but not possible in every issue.

Handling Oral Complaints Under the Sexual Harassment Act

As per Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, a woman, if she is unable to make a written complaint, can give an oral complaint to the Internal Committee or the Local Committee, as the case may be, within three months of the incident. According to the statement, the woman employee made a complaint to the Chairman and employee member about the continuous harassment she has faced for the last four months. Therefore, the Internal Committee can take cognizance of the incidents of the last three months and proceed in the matter.

Challenges in Addressing Harassment Complaints

It may be premature to comment on the merits of the case. Mere reluctance of the employee to submit the complaint in writing need not lead to doubting it. This is the unfortunate reality in the Indian scene where women employees are often shy to speak about the harassment they have faced. Indeed, it has come out in the media that almost all working women are daily exposed to sexual harassment, yet many of them desist from making an issue of it as they feel they are likely to be more harassed in the process of seeking justice. So it is better to keep quiet; that may be the logic.

Organizational Response and Action

As far as an organization is concerned, once it has come to know of the complaint, it has to take action. To initiate the further process of disciplinary action, it is necessary that the employee stands up for her complaint and she is subjected to cross-examination. The willingness may be ascertained from her, and if she is willing, then the formal process can be initiated. But if she is unwilling to cooperate, then the organization has to take cognizance of the matter and hold a discreet inquiry and take administrative action like a strict warning, transfer, etc. The perpetrator of the crime has to be given a clear indication that his undesirable activities have been taken note of and he is on notice. In such cases, where there is a genuine feeling of being harassed, the organization has to take exemplary action so that the message spreads across.

Dear Friends, indeed it is a nice way of respecting seniors by putting "ji" after their names. Why only seniors, to everyone.

With due respect to everyone, I would like to reproduce section 9 of the Act verbatim.

Complaint of sexual harassment

(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at the workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of the incident and in case of a series of incidents, within a period of three months from the date of the last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

Since our learned friend and senior member/super moderator KK!HR ji has not considered the full section 9 while giving his response, I thought of reproducing it verbatim. Also, I thought of reproducing it since another senior member, Gannahope ji, has opined that nothing is hindering the IC from making a thorough enquiry on the issue with the oral report.

Sorry, I am going letter by letter of the Act.