The bench said sexual misconduct cannot be viewed casually and must be dealt with firmly and there should be an inbuilt internal mechanism so that instances of harassment can be conveyed confidentially to a senior woman officer. “Internal committees should be constituted to ensure that such instances are nipped at the inception itself.” It also pointed out that while Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013, most firms have not set up complaints panels and must do so expeditiously (Times of India 2016).
A gender diversity study (TeamLease 2016) has revealed that more than 72% women feel that gender discrimination exists at workplaces and that initiatives like anti-sexual harassment policies need to be boosted by employers. This was reflected in the data provided by the corporate affairs ministry, Government of India which showed that reported complaints of sexual harassment within the top 100 companies listed on the National Stock Exchange doubled in the financial year 2014–15 as compared to the previous one (Asian Age 2015). Paradoxically, employers were found to be unequipped to tackle the problem. The Federation of Indian Chambers of Commerce and Industry (FICCI)–Ernst and Young study (2015) revealed that one in every three Indian companies that is 31% had not yet set up ICC and 40% had not oriented the members to legal provisions while 35% were unaware of the penal consequences of not complying with the law. Around 44% did not create awareness about the law among employees (Bhattacharyya 2015; Sharma 2015).
Researching the Issue
In this context, I argue that employer response to reported complaints of sexual harassment has been dubious and problematic before enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This is substantiated by findings of the research undertaken by me as fulfilment of the PhD programme at the Tata Institute of Social Sciences (TISS), Mumbai between 2012 and 2014. The need for such research arose from the poor implementation of the Vishakha guidelines (1997). One of the objectives of the research was to understand and analyse employer response to reported complaints of sexual harassment by women. It was done prior to the enforcement of the 2013 act and provided insights into status of compliance by organisations to the then existing legal framework.
Research questions required that a qualitative approach was followed. More specifically, phenomenology was chosen in order to get a both closer and deeper understanding of lived experiences of individuals who implemented the Vishakha guidelines and those who were affected by their implementation. This helped in bringing out new and context specific knowledge both from the compliance and process point of view.
Mumbai was chosen as the research setting taking into consideration that it is the economic capital of India and home to different kinds of organisations. There were numerous challenges in terms of locating participants for research and gaining their consent. Women’s organisations and/or groups, human and/or women’s rights lawyers, and the state commission for women became contact points to get in touch with women who reported sexual harassment and individuals who had experience in implementing the Vishakha guidelines. Lawyers, trade union members and representatives of non-governmental organisations (NGOs) functioning as external members with complaints committees were willing to be part of the research.
A few participants were selected using purposive sampling (Welman and Kruger 1999) and others were located using the snowballing technique (Babbie 1995; Crabtree and Miller 1992). The sample size was 27. Out of these, six persons were members of complaints committees including chairpersons, three were human resources professionals, six were from NGOs and women’s organisations, two were members of trade unions and three were lawyers. Seven women were complainants who had reported sexual harassment at their workplaces. Out of these seven, four were employed with government organisations while three were working in private sector companies.
The challenge in locating and accessing participants for research reflected lack of uniformity in participant profiles. The sample was not representative in terms of participant activities except that all participants were employed with the organised sector and were concerned with the implementation of the Vishakha guidelines. Data collection was done using single in-depth semi-structured conversational interviews.
Experiences of the participants were captured in three themes. One of the prominent themes that emerged was employer response to reported complaints. This particular theme is especially important because it provides a base to understand and analyse prevailing situation relating to compliance to the current law on sexual harassment. The theme was analysed from the point of view of employer compliance to the Vishakha guidelines.
Writings and studies in India during 1997–2013 reveal under-reporting of sexual harassment, and poor implementation of the Vishakha guidelines leading to ineffective resolution of reported complaints (Saheli 1998; Sakshi 2000; Sanhita 2001; SARDI 1999; Lawyers Collective and ILO 2002; Yugantar 2003; CII 2005; Chaudhuri 2006; CFTI 2010). Situation continues to be sluggish after the 2013 act was enacted Phadnis and John (2014), Singh (2015) and DNA (2015). This is substantiated by findings of the present research.
Overall, organisations flouted the Vishakha guidelines. However, persistent efforts by the women and pressure from external agencies compelled employers to implement the guidelines. Even though it was done half-heartedly complaints committees were constituted or activated after complainants insisted and/or when there was pressure from external agencies like the state commission for women and high court.
It was found that women did not complain immediately after the incidents of sexual harassment occurred. In fact, registering a complaint with the employer was considered as the last choice and was resorted to when they found the workplace atmosphere becoming intimidating and difficult to handle. Their well-being and health was affected. Many of them did not have information about the complaint mechanism within their organisations and sought the help of women’s organisations, the police or the state commission for women.
When the women reported sexual harassment to persons in positions of authority, they were laughed at or were not believed. The complaints were rendered insignificant and branded as psychological problems, administrative harassment arising from the complainant’s non-performance, workplace politics, ragging or rude behaviour. Since these complaints were not considered grave enough to warrant attention, they were invariably dismissed. It must be noted here that non-verbal forms of sexual harassment were not regarded as harassment and the woman was blamed for making an issue out of “nothing.”
Retaliation from the employer after complaint was distinctly seen in all cases and this was a trend that was seen much more in the private sector where the complainant women’s services were terminated or they were compelled to resign due to humiliating working conditions deliberately created by the employer. The nature of retaliation in the government organisations differed substantially from the private sector. For these women, sexual and administrative harassment escalated after they complained. In all cases, however, the women were subjected to senior management personnel actually devising ways of troubling them further.
The experiences of the women complainants discussed here were substantiated by members of NGOs functioning as external members on the complaints committees, and by lawyers and trade unionists. The NGO members said that employers largely denied the existence of sexual harassment in their organisations and most of them were convinced that the environment in their organisations was safe for the women employees. As a result, the implementation of the Vishakha guidelines was undertaken reluctantly and led to low awareness among the employees about the entire issue and existence of the complaint mechanism. Almost everyone I interviewed said that the sexual harassment policies were vaguely framed because these employers did not envisage the different situations emerging from such harassment.
The NGO members further shared that employer response to reported cases was subjective and varied according to their perception about the issue and interest in the reported complaint. The response was never sympathetic and was actually negative, casual and attempted avoidance. Sexual harassment was treated as “normal” behaviour and not dealt with seriously thus forcing the women to reach out to external agencies such as the police.
The lawyers I spoke to observed that multinational companies only pretended to adhere to strict global standards but sexual harassment at the workplace was not seen as a form of violence against women or violation of rights of women employees. The employers believed that the woman was making the complaint with an ulterior motive. As a consequence, the response was negative and any show of insistence from the woman resulted in her being accused of poor performance of her job or vindictive behaviour. While her work and leave records were examined with intent to find faults and serve her with memos and termination notices, the man she had complained against was let off without any action. In fact, the woman faced isolation within the workplace and in many cases the human resources personnel ensured that her complaint was ignore or treated lightly.
Employers need to make sure that ICCs under the Companies Act, 2013 are constituted as mandated. Similarly, an efficient anti-sexual harassment policy is required to be drafted so that it is compliant with the 2013 act and addresses even those areas which the law fails to. The definition of sexual harassment should be broadened to cover the overall work culture and the ICC should meet regularly to gain visibility and reach out to the women in the organisation even when there are no reported complaints of sexual harassment. Though the act does not mandate presence of an external member in the quorum, the compulsory presence of such a member should be ensured during the committee’s meetings and proceedings.
As stated by Hersch (2015) despite being illegal, costly, and an affront to dignity, sexual harassment is pervasive and challenging to eliminate. Sincerity of purpose, interpretation of the legislation by the employers in keeping with its spirit and contextualising it with the struggle from which it emerged will go a long way in bringing about the safety of women employees at workplaces.
Forget yourself for others, and others will never forget you.