The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a robust legislation that built upon the landmark Vishaka Guidelines laid down by the Supreme Court in 1997.
The Act directs organizations to form “Internal Committees” (IC), to enable a speedy and confidential mechanism for complaints of sexual harassment to be raised and redressed within their organization.
Vested with the power of a civil court, the primary role of an IC is to assess if a complaint of sexual harassment is indeed sexual harassment or not. The Act lays down clear provisions on the constitution of the committee. The investigation process demands a sound grasp of social and legal concepts, attention to detail, and an empathetic, yet objective IC. A unique feature of the Indian POSH Act, ICs play a critical role in prevention, prohibition and redressal of sexual harassment in workplaces.
What are some guidelines that organizations can follow to enable the IC and its members to function effectively? Having set up many ICs across the country and guided multiple investigations, here are some things that we have seen work well:
- Ensure your IC is diverse: While the legal provision stipulates at least 50% of the IC to be women, we also recommend that your IC should reflect your organizational diversity. Make sure you select employees from different functions, different generations, different genders, different abilities, etc. This increases the number of employees that feel ownership toward the prevention of sexual harassment. It also makes Committee members easily accessible & approachable. Further, a diverse IC will have varied perspectives that a homogenous group may miss while evaluating the case, thereby reducing bias in the process. IC members also serve as evangelists for the prevention of sexual harassment; selecting them from diverse groups will ensure that they go back to the groups they belong to and disseminate information about POSH.
- Provide support for your IC: The Inquiry process requires time, energy and mind space. When IC members are navigating organizational pressures and time pressures, given their day jobs, their ability to effectively participate is impacted negatively. In one organization that manages this well, HR engages with the IC member’s manager to distribute the member’s workload so that the member can prioritize the investigation. A more laudable support is offered by another organization, which provides access to counseling for IC members. Inquiries can take quite a toll on the IC members and can be mentally and emotionally exhausting. It is important for this to be addressed. Building and training a large pool of IC members that you can draw from and allot cases to can also ensure IC members don’t have to deal with multiple cases at once, depleting them of the mental & emotional resources required for investigation.
- Ensure IC is engaged with the larger discourse on POSH & women’s issues: There is a global discourse on sexual harassment at workplaces that is currently occurring. Make sure your IC remains engaged with these conversations. Encourage debate between IC members about current issues related to sexual harassment and women’s issues during quarterly IC meetings. According to Section 4 of the Act, committee members should be “preferably committed to the cause of women or who have had experience in social work or have legal knowledge”. While it says preferable, it is in your best interests to demonstrate IC members’ “commitment” to the cause of women. It might be relevant to note here that the Bombay High court had ordered an organization to reconstitute the committee, in a case, where they were unable to demonstrate this.
- Provide IC with a Comprehensive Guide: A step by step guide that provides detailed instructions of the entire process gives IC members a go-to manual that they can refer to during the investigation process. While training can be effective, it is often difficult for members to retain accurate procedural information. For example, the Act allows for the IC to take up only complaints submitted in writing by the complainant. What should the IC do if they receive an anonymous complaint? These and other clarifications should be provided in the manual. A part of the guide which lists out the process is shared with the Complainant and Respondent, by some organizations, to ensure transparency. This can also make the investigation process less daunting for all stakeholders.
- Educate them on the social underpinnings of the Act: At the end of the day, the Law is meant to set a social phenomenon right. Most organizations equip their IC with the legal process, failing to understand that if the IC members don’t understand the social underpinnings, their ability to assess a case is limited. For example: if IC members don’t understand Consent, Power and how they intersect, their ability to investigate a sexual harassment complaint accurately will be constrained. They may also re-victimize the complainant. Educating IC members on the social underpinnings of the Act will allow them to be empowered to make decisions and justify those decisions.
- Do not be overly dependent on the external member: A last but critical point that is obvious but rarely followed is ensuring all IC members engage actively in the deliberations stage. This is the stage when the committee decides if the complaint is sexual harassment or not and if yes, what is the action to be recommended. In most cases, we find the decision is left to the External Member, assuming their ‘expertise’ will guide the ‘best’ decision. The purpose of having a committee is to ensure multiple perspectives and voices will null out possible biases. Deferring decision making to the External Member might not achieve this purpose.
An online survey by LocalCircles found that 78 percent of women who have been sexually harassed at the workplace in India do not report it. Unless employees feel comfortable in raising complaints, sexual harassment in workplaces cannot be eradicated. Constituting committees effectively and equipping them will go a long way in building trust in due process thus paving the way for safe and harassment-free workplaces.