The Genpact Case: Lessons for HR Professionals
The Genpact case of sexual harassment and the unfortunate suicide of an AVP due to charges of sexual harassment (SH) against him by two women employees, and the management's action of his suspension, has sent chilling waves among HR professionals, internal committee members, and women employees across the board. After the Me-Too movement, the issue of sexual harassment has once again come to the center of debate, but this time it has a different angle. The incident has brought forward a few dimensions to understand and take some lessons from it because the senior executive who committed suicide left a note stating that the allegations of sexual harassment against him were false. He was not given an opportunity for a hearing and was suspended. His wife has lodged an FIR against top company management executives and IC members for committing the offense of abetment of suicide. The matter is under investigation. Without commenting on the merit of the case, organizations and especially HR professionals may draw the following lessons:
1. Handling Sexual Harassment Complaints
Though the complaint of sexual harassment should be taken up with due sensitivity and priority, the panic button should not be pressed in all incidents. In this case, it appears, as reported in the media, that on the day of complaints, the AVP was put under suspension, he was not allowed to work from home, and his access to his computer was also disallowed. Here, the complaints should have first gone to the IC. Then it was for the IC chairperson or any member, as may be deputed, to initially investigate the complaints to assess the correctness and gravity, interview the complainants in camera, and if prima facie the complaints were found to have a case of SH, the IC is under obligation to issue a show cause notice to the respondent (Harasser) with a copy of complaints and documents provided by complainants asking him to reply to the complaints. Though management has powers to suspend the employee as per his terms of employment or service rules in cases of misconduct, the POSH law does not give any powers to the employer to suspend the respondent (Harasser) immediately on receiving the complaint against him. The employer can transfer such a person to some other location on the recommendation of IC after a request from the aggrieved woman employee. If the organization has no such rules or policy or terms of employment prescribing the disciplinary procedure, drawing powers of suspension, duly agreed by the employee, it may be difficult for any organization to justify such action because it is not a case of a workman who falls under certified standing orders applicable to him. The matters of SH not only involve two employees but two independent lives leaving an impact on their families and society as a whole. It can make or break.
2. Investing in Prevention
Instead of preferring a redressal mechanism only, organizations also need to invest much in the prevention of incidents of sexual harassment because it is more of a social evil having its deep root in a male-dominated society than a workplace or legal issue. This can be achieved by constantly coaching, training, and making all aware of the do’s and don’ts about such issues. Workplace culture has to be tuned up with zero tolerance for such incidences so that a safe and dignified environment is provided to women employees. At the same time, it should not be undermined that male colleagues also have some social existence and dignity. Striking a balance between the two is a must. Unless charges of sexual harassment are proved, organizations must hide the identity of the respondent too, as mandated by law. Nowhere does the law permit disclosing the identity of complainants and the respondent. Proceedings are to be held in camera.
3. Understanding Sexual Harassment
There is still much confusion among employees and organizations as to what constitutes sexual harassment or sexual abuse. Workplace culture determines acceptable behavior to a great extent. Employees should be well-versed in this. IC members are also not fully trained to conduct inquiries into the complaints of sexual harassment. The inquiry under POSH law is quite different from the normal domestic inquiry management conducts in disciplinary matters involving acts of misconduct. Organizations should prioritize getting IC members trained in this respect.
4. Role of IC Members
IC members should act impartially and judiciously. They should not be afraid of any consequences because the IC is discharging its duties by investigating and inquiring into the charges of complaint mandated by law. IC cannot be accused of abetting the suicide of someone merely because the committee is inquiring into the matter against him unless deviating from the laid-down procedure or acting with bias or their actions or orders indicate abetment to suicide.
5. Encouraging Women Employees
Women employees should not get discouraged or scared of such unfortunate incidents. They should continue to speak up truthfully and genuinely. The law has given women a legal arm to guard them against sexual harassment at the workplace, but it is a double-edged weapon. If it is used to malign someone or take revenge or meet self-interest, it may harm not only that woman but also cast a shadow on other genuine victims at large.
6. Avoiding Mechanical Reactions
Organizations should not act mechanically in such incidents and overreact just to demonstrate their sensitivity towards such matters. Every complaint should be dealt with with the same sensitivity and dignity; otherwise, in the long term, organizations may have to bear a heavy cost in terms of image and employer branding.
7. Legal Precedents
There are judgments of the Supreme Court where it is held that management officers are to be held responsible for abetment to suicide merely on the note of the deceased unless some other material evidence and facts exist and co-relate confirming abetment. However, it depends on the facts and circumstances of each case.
From India, Delhi
Acknowledge(0)
Amend(0)
181The Genpact case of sexual harassment and the unfortunate suicide of an AVP due to charges of sexual harassment (SH) against him by two women employees, and the management's action of his suspension, has sent chilling waves among HR professionals, internal committee members, and women employees across the board. After the Me-Too movement, the issue of sexual harassment has once again come to the center of debate, but this time it has a different angle. The incident has brought forward a few dimensions to understand and take some lessons from it because the senior executive who committed suicide left a note stating that the allegations of sexual harassment against him were false. He was not given an opportunity for a hearing and was suspended. His wife has lodged an FIR against top company management executives and IC members for committing the offense of abetment of suicide. The matter is under investigation. Without commenting on the merit of the case, organizations and especially HR professionals may draw the following lessons:
1. Handling Sexual Harassment Complaints
Though the complaint of sexual harassment should be taken up with due sensitivity and priority, the panic button should not be pressed in all incidents. In this case, it appears, as reported in the media, that on the day of complaints, the AVP was put under suspension, he was not allowed to work from home, and his access to his computer was also disallowed. Here, the complaints should have first gone to the IC. Then it was for the IC chairperson or any member, as may be deputed, to initially investigate the complaints to assess the correctness and gravity, interview the complainants in camera, and if prima facie the complaints were found to have a case of SH, the IC is under obligation to issue a show cause notice to the respondent (Harasser) with a copy of complaints and documents provided by complainants asking him to reply to the complaints. Though management has powers to suspend the employee as per his terms of employment or service rules in cases of misconduct, the POSH law does not give any powers to the employer to suspend the respondent (Harasser) immediately on receiving the complaint against him. The employer can transfer such a person to some other location on the recommendation of IC after a request from the aggrieved woman employee. If the organization has no such rules or policy or terms of employment prescribing the disciplinary procedure, drawing powers of suspension, duly agreed by the employee, it may be difficult for any organization to justify such action because it is not a case of a workman who falls under certified standing orders applicable to him. The matters of SH not only involve two employees but two independent lives leaving an impact on their families and society as a whole. It can make or break.
2. Investing in Prevention
Instead of preferring a redressal mechanism only, organizations also need to invest much in the prevention of incidents of sexual harassment because it is more of a social evil having its deep root in a male-dominated society than a workplace or legal issue. This can be achieved by constantly coaching, training, and making all aware of the do’s and don’ts about such issues. Workplace culture has to be tuned up with zero tolerance for such incidences so that a safe and dignified environment is provided to women employees. At the same time, it should not be undermined that male colleagues also have some social existence and dignity. Striking a balance between the two is a must. Unless charges of sexual harassment are proved, organizations must hide the identity of the respondent too, as mandated by law. Nowhere does the law permit disclosing the identity of complainants and the respondent. Proceedings are to be held in camera.
3. Understanding Sexual Harassment
There is still much confusion among employees and organizations as to what constitutes sexual harassment or sexual abuse. Workplace culture determines acceptable behavior to a great extent. Employees should be well-versed in this. IC members are also not fully trained to conduct inquiries into the complaints of sexual harassment. The inquiry under POSH law is quite different from the normal domestic inquiry management conducts in disciplinary matters involving acts of misconduct. Organizations should prioritize getting IC members trained in this respect.
4. Role of IC Members
IC members should act impartially and judiciously. They should not be afraid of any consequences because the IC is discharging its duties by investigating and inquiring into the charges of complaint mandated by law. IC cannot be accused of abetting the suicide of someone merely because the committee is inquiring into the matter against him unless deviating from the laid-down procedure or acting with bias or their actions or orders indicate abetment to suicide.
5. Encouraging Women Employees
Women employees should not get discouraged or scared of such unfortunate incidents. They should continue to speak up truthfully and genuinely. The law has given women a legal arm to guard them against sexual harassment at the workplace, but it is a double-edged weapon. If it is used to malign someone or take revenge or meet self-interest, it may harm not only that woman but also cast a shadow on other genuine victims at large.
6. Avoiding Mechanical Reactions
Organizations should not act mechanically in such incidents and overreact just to demonstrate their sensitivity towards such matters. Every complaint should be dealt with with the same sensitivity and dignity; otherwise, in the long term, organizations may have to bear a heavy cost in terms of image and employer branding.
7. Legal Precedents
There are judgments of the Supreme Court where it is held that management officers are to be held responsible for abetment to suicide merely on the note of the deceased unless some other material evidence and facts exist and co-relate confirming abetment. However, it depends on the facts and circumstances of each case.
From India, Delhi
Acknowledge(0)Amend(0)
The write-up posted in CiteHR on 26.12.18, captioned "Lessons From Genpact Sexual Harassment Case By Anil Kaushik," contains certain anomalies, aberrations, and factual errors as noted below:
Internal Committee's Role
The Internal Committee constituted by the employer under Section-4 of the "Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013" has "no locus standi" nor "obligation" whatsoever to issue a "Show-Cause" to the respondent with a copy of the sexual harassment complaint or allegations asking him to reply to the complaints/allegations as written in Lesson-1. The Internal Committee is not purported to be a Disciplinary Authority.
Employer's Prerogative
The employer has the absolute, non-negotiable prerogative, privilege, and right to initiate disciplinary action against any acts of misconduct within the meaning of the Standing Orders or the Service Rules, which are framed under respective laws authorizing the employer to do so. For and on behalf of the employer, the Occupier or any other agent commonly referred to as Management, the Manager, the Punishing Authority do initiate disciplinary action, including issuing the Show-Cause Notice/Letter or Charge-Sheet or Explanation Letter, informing him/her of the "allegation" leveled/reported against him or her and asking/directing the concerned employed person to submit a written explanation as to why necessary further disciplinary action should not be taken against him/her for the alleged act of misconduct.
On receipt of the written explanation/reply in defense or otherwise, the sexual harassment complaint with connected documents is forwarded to the Internal Committee addressed to the Presiding Officer to act according to Sections 9, 10, 11, etc., of the SHWW Act 2013 and the rules framed thereunder and gazetted on 9.12.2013. The employer decides on the quantum of proportionate punishment or condonation as the findings may be. The IC findings are whether the SH complaint was found true or found false, frivolous, and malicious with reasons supporting the findings.
Submission of Complaints
Not only the aggrieved woman-complainant can lodge/submit her SH complaints, but the aforesaid Act also provides for other persons so authorized to submit, on her behalf, her SH complaint for necessary action, including inquiries.
Online SH Complaint Registration
Now that SHE Box—an online e-portal—has since been launched in Nov 2017, any SH complaint can be registered online, and the Ministry of Women & Child Development, the monitoring authority, is active and shall forward the registered SH complaint for necessary "redressal" as stipulated in the Act of 2013.
In view of the aforesaid, the "opinion" of the author of the write-up that the complaints should have gone to IC, then it was for IC Chairperson or any member as may be deputed to initially investigate the complaints to assess the correctness and gravity, interview the complainants in camera, and if prima facie the complaints were found to have a case of SH, is invalid and a travesty of justice. The Internal Committee Presiding Officer is titled/addressed as such, whereas the Local Committee has the Chairperson. The IC is an independent legal entity created to conduct its proceedings in accordance with the principles of natural justice without the need to assess the "correctness" and "gravity" of the SH complaint/allegations before the committee proceeds with its primary duty and responsibility to ascertain the facts of the SH complaint; there is no interview as such made out, in camera, for the entire IC proceedings ought to be/must be in line with the principles of natural justice when either the aggrieved woman-complainant and/or the respondent insist on examining and/or cross-examining their respective witnesses and/or documentary evidence.
Employer's Duty
Every employer is duty-bound to constitute the IC under Section-4 and file an annual report of action taken under Section-22. Hence, the "exhortation," as it were, that "Instead of preferring for redressal mechanism only" appearing in Lesson-2 is uncalled for. Employers have no choice, no exemption but to constitute the IC. However, no stone should be left unturned/no efforts be spared to seek "collaboration" of all the stakeholders in the organization/establishment towards co-creating a "safe and secure workplace where no woman shall be subjected to sexual harassment and, more importantly, the fundamental rights of women to live with dignity are protected, honored in letter and spirit, faithfully and properly.
Definition of Sexual Harassment
The acts which shall constitute sexual harassment and the circumstances likely to lead to/causing SH are crystal clear as stipulated in the aforesaid Act 2013 and though "illustrative" and not "exhaustive." SH means and includes any act or behavior, verbal or non-verbal or otherwise, which is or are unwelcome and/or humiliating to her, likely to affect her health and sense of safety. The definition is almost all-encompassing/covering any act, etc., which the aggrieved woman defines as or describes as unwelcome and/or humiliating to her, and she is now made aware that any false, frivolous, and malicious SH complaints/allegations reported/lodged by her and found to be so by the IC shall be punishable, shall be an offense, too, in the event an appeal before the judiciary is filed, and the judiciary concludes so considering the materials on record. This is for review/consideration. Risks on the part of a few of the readers of the write-up are not ruled out who may "learn"/internalize factual errors.
Kritarth Team of Special Educators,
30 Dec 2018.
From India, Delhi
Acknowledge(0)Amend(0)
Internal Committee's Role
The Internal Committee constituted by the employer under Section-4 of the "Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013" has "no locus standi" nor "obligation" whatsoever to issue a "Show-Cause" to the respondent with a copy of the sexual harassment complaint or allegations asking him to reply to the complaints/allegations as written in Lesson-1. The Internal Committee is not purported to be a Disciplinary Authority.
Employer's Prerogative
The employer has the absolute, non-negotiable prerogative, privilege, and right to initiate disciplinary action against any acts of misconduct within the meaning of the Standing Orders or the Service Rules, which are framed under respective laws authorizing the employer to do so. For and on behalf of the employer, the Occupier or any other agent commonly referred to as Management, the Manager, the Punishing Authority do initiate disciplinary action, including issuing the Show-Cause Notice/Letter or Charge-Sheet or Explanation Letter, informing him/her of the "allegation" leveled/reported against him or her and asking/directing the concerned employed person to submit a written explanation as to why necessary further disciplinary action should not be taken against him/her for the alleged act of misconduct.
On receipt of the written explanation/reply in defense or otherwise, the sexual harassment complaint with connected documents is forwarded to the Internal Committee addressed to the Presiding Officer to act according to Sections 9, 10, 11, etc., of the SHWW Act 2013 and the rules framed thereunder and gazetted on 9.12.2013. The employer decides on the quantum of proportionate punishment or condonation as the findings may be. The IC findings are whether the SH complaint was found true or found false, frivolous, and malicious with reasons supporting the findings.
Submission of Complaints
Not only the aggrieved woman-complainant can lodge/submit her SH complaints, but the aforesaid Act also provides for other persons so authorized to submit, on her behalf, her SH complaint for necessary action, including inquiries.
Online SH Complaint Registration
Now that SHE Box—an online e-portal—has since been launched in Nov 2017, any SH complaint can be registered online, and the Ministry of Women & Child Development, the monitoring authority, is active and shall forward the registered SH complaint for necessary "redressal" as stipulated in the Act of 2013.
In view of the aforesaid, the "opinion" of the author of the write-up that the complaints should have gone to IC, then it was for IC Chairperson or any member as may be deputed to initially investigate the complaints to assess the correctness and gravity, interview the complainants in camera, and if prima facie the complaints were found to have a case of SH, is invalid and a travesty of justice. The Internal Committee Presiding Officer is titled/addressed as such, whereas the Local Committee has the Chairperson. The IC is an independent legal entity created to conduct its proceedings in accordance with the principles of natural justice without the need to assess the "correctness" and "gravity" of the SH complaint/allegations before the committee proceeds with its primary duty and responsibility to ascertain the facts of the SH complaint; there is no interview as such made out, in camera, for the entire IC proceedings ought to be/must be in line with the principles of natural justice when either the aggrieved woman-complainant and/or the respondent insist on examining and/or cross-examining their respective witnesses and/or documentary evidence.
Employer's Duty
Every employer is duty-bound to constitute the IC under Section-4 and file an annual report of action taken under Section-22. Hence, the "exhortation," as it were, that "Instead of preferring for redressal mechanism only" appearing in Lesson-2 is uncalled for. Employers have no choice, no exemption but to constitute the IC. However, no stone should be left unturned/no efforts be spared to seek "collaboration" of all the stakeholders in the organization/establishment towards co-creating a "safe and secure workplace where no woman shall be subjected to sexual harassment and, more importantly, the fundamental rights of women to live with dignity are protected, honored in letter and spirit, faithfully and properly.
Definition of Sexual Harassment
The acts which shall constitute sexual harassment and the circumstances likely to lead to/causing SH are crystal clear as stipulated in the aforesaid Act 2013 and though "illustrative" and not "exhaustive." SH means and includes any act or behavior, verbal or non-verbal or otherwise, which is or are unwelcome and/or humiliating to her, likely to affect her health and sense of safety. The definition is almost all-encompassing/covering any act, etc., which the aggrieved woman defines as or describes as unwelcome and/or humiliating to her, and she is now made aware that any false, frivolous, and malicious SH complaints/allegations reported/lodged by her and found to be so by the IC shall be punishable, shall be an offense, too, in the event an appeal before the judiciary is filed, and the judiciary concludes so considering the materials on record. This is for review/consideration. Risks on the part of a few of the readers of the write-up are not ruled out who may "learn"/internalize factual errors.
Kritarth Team of Special Educators,
30 Dec 2018.
From India, Delhi
Acknowledge(0)Amend(0)
In a workplace, "Just because a girl accuses someone of sexual harassment, it does not mean that person should be held guilty." "A man must be given a fair chance." "Even if he is able to clear his name in the case, he would not be able to face the world." How is the POSH Act going to answer this point of debate now?
Confidentiality and Secrecy in POSH Act
Maybe a confidentiality and secrecy provision should be introduced in the Act. It should introduce an express provision to protect the confidentiality of POSH Act proceedings. The only permitted exception to the confidentiality obligation should be in the implementation and enforcement of the order of the POSH In-House Committee. A re-look is needed from the fallout of this case.
From India, Chennai
Acknowledge(0)Amend(0)
Confidentiality and Secrecy in POSH Act
Maybe a confidentiality and secrecy provision should be introduced in the Act. It should introduce an express provision to protect the confidentiality of POSH Act proceedings. The only permitted exception to the confidentiality obligation should be in the implementation and enforcement of the order of the POSH In-House Committee. A re-look is needed from the fallout of this case.
From India, Chennai
Acknowledge(0)Amend(0)
Dear Anil Sir,
We are reviewing our Policy on Prevention of Sexual Harassment. We are adding the format of the Harassment complaint form and Committee Reports in the Annexure of the policy. I am stuck with the format of the Statement of Allegation or a show-cause notice to the Harasser. Can you share with me the format of the Statement of Allegation or show-cause notice to the Harasser?
Regards,
Avinash
From India, Mumbai
Acknowledge(0)Amend(0)
We are reviewing our Policy on Prevention of Sexual Harassment. We are adding the format of the Harassment complaint form and Committee Reports in the Annexure of the policy. I am stuck with the format of the Statement of Allegation or a show-cause notice to the Harasser. Can you share with me the format of the Statement of Allegation or show-cause notice to the Harasser?
Regards,
Avinash
From India, Mumbai
Acknowledge(0)Amend(0)CiteHR is an AI-augmented HR knowledge and collaboration platform, enabling HR professionals to solve real-world challenges, validate decisions, and stay ahead through collective intelligence and machine-enhanced guidance. Join Our Platform.
Sexual harassment act.pdf