India needs a strong zero-tolerance culture and a robust internal complaints committee in corporates in order to address sexual harassment. Expats and foreign companies planning to come to India should be mindful about certain laws and legal requirements with regard to the prevention of sexual harassment at workplace.
In 2018, the wave of #MeToo movement that swept the world, also hit India. The movement against the prevalence of sexual harassment led many women to come out and talk about their personal experiences.
A couple of walkouts staged by Google employees following the #Metoo movement, including those in India ‒ as part of a planned protest against the bad handling of sexual harassment complaints ‒ compelled companies to re-examine internal policies and put in place better mechanisms to protect employees from sexual harassment.
Legal framework: sexual harassment at workplace in India
In India, while many companies have a zero-tolerance policy towards sexual harassment, others are yet to fully implement the legal framework under various laws such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Although this law does not address past sexual misconduct retroactively, the #MeToo movement did trigger the urgency for companies to be compliant with the POSH Act and to do so more sincerely. The POST act contains a couple of limitations for the victims of sexual harassment. For example, an incident that took place more than six-months ago can be redressed under the POSH Act. Also, the victim carries the burden of proof where one has to present evidence to make a persuasive case against the accused. Therefore, for companies to have a safe work environment that is free of harassment, one has to look beyond the existing laws.
Beyond the legal framework
To start with, there is a need for a culture where there is zero-tolerance for sexual harassment. For this to be effective, it must trickle down to each and every corner of the company. In a diverse country like India, where people come from different social, economic and cultural backgrounds, their perception and reaction to the same situation may be completely different. Therefore, proper training an sensitization of employees on the gender dynamics, on the meaning of harassment and awareness about boundaries at the workplace is need of the hour. Under the POSH Act, companies with more than 10 employees are mandated to have an Internal Complaints Committee (ICC). The ICC is responsible for the prevention and resolution of sexual harassment in the workplace. The ICC also has the task to inquire into and make recommendations to the employer/company on the actions required. While inducting or training new employees, companies should ideally be creating awareness about the ICC and explain its role and responsibilities. In most cases, aggrieved employees usually seem to approach the human resources (HR) department or their manager instead of the ICC. However, the HR departments are usually not completely equipped to deal with such complaints in the manner required under the POSH Act.
The constitution of the ICC is a challenge for most companies but specifically for small and medium-sized companies that may not have enough women employees who can be part of the ICC. The ICC constitutes a minimum of four members (namely the Presiding Officer, the external member and a minimum of two employee members). According to the POSH Act, at least half, in other words two members of the ICC should comprise of females. Since the POSH Act also requires the presence of an external ICC member who is familiar with issues relating to sexual harassment, or comes from a non-governmental organization committed to prevention of such issues, companies may find it challenging to find the right people required to handle such matters. Also, such external members are often part of many such committees and do not have sufficient time to dedicate. Therefore, companies require industry knowledge when it comes to choosing the external members, as a detailed assessment of credentials, is a critical part of the process.
Companies that already have an ICC or are thinking about constituting one, a frequent training to the members about women’s rights, about empathetic approach, neutrality and fair-mindedness while handling complaints is of utmost importance. From a cultural point of view, the members of the ICC should be trained not to indulge in victim shaming or character assassination of the accused.
Orders, such as the termination of employment of the accused, as issued by the ICC need to be enforced and implemented by HR department. However, the HR department may be reluctant in effectively implementing the orders, especially if a senior members of the company are involved, or due to fears of reputational harm to the company. This is where companies need to use training and sensitization to ensure that harassers are held accountable.
Last but not the least, to create a safe and equitable culture, companies need to practices anti-sexual harassment norms are as a matter of legal compliance because that is what it is.
Do you have questions about your safety at workplace in India or the legal requirements for companies to create a safe environment for all at the workplace in your company in India? Please get in touch with Miss Legal India.