When I recently saw the narratives of the victims of sexual harassment on television, what came across strikingly in most cases despite the years that had elapsed since the attacks was the sense of unmitigated terror those women experienced. By contrast, the steps corporate India is taking to prevent the menace seem pathetically benign to me.1 Leaping on to the sensitization bandwagon rapidly rolling across India’s corporate horizon may give CEOs an impression that their HR departments are doing everything possible to counter the sexual harassment menace but such programs, by themselves, will achieve little.
What may be adequate for alleviating gender diversity issues (although even there mandatory training has been shown to have unintended consequences2) is unlikely to be of more than homeopathic value in dealing with impulses that may have deep evolutionary origins. Kingsley Browne points out: "The Utopian workplace desired by some … is not one likely to be created by our evolved minds. The … view that sex is just a 'social construct' has encouraged many to believe that people (especially men) can simply be educated to leave their sexual psychologies behind them and enter a workplace in which they adopt 'work roles' that are largely independent of their psyches… An understanding of evolved sex differences in sexual psychologies is essential to the understanding of the behaviors produced by those psychologies and can assist in their management."3
Just because training is not the panacea for this problem doesn’t mean nothing can be done. Browne himself goes on to say: "Recognition of the fact that sexual harassment is a manifestation of our evolved psychologies does not mean that sexual harassment is either good or inevitable. Many behaviors having origins in our evolved psychologies are recognized to be social pathologies even if they do not reflect psychological pathologies. Behaviors are susceptible of modification, even if our underlying psychologies are not, and it should be remembered that our evolved psychologies are not only the source of sexual harassment but also of our desire to combat it."3
The prevention (or, failing prevention, the punishment) of sexual harassment in the workplace depends on making it less traumatic and onerous for victims to complain, harnessing technology to make the establishment of what actually happened go beyond the "he-said-she-said" impasse, and meting out exemplary punishment where guilt is established
What can we do to change the behavior of the small but significant part of the male population that, when left unchecked, makes workplaces traumatic for women? Fifty years ago, Gary Becker proposed a model of criminal reasoning and disincentivization4 that meets our present purpose well. According to a simplified version of Becker’s argument, crime reduction can occur through reducing the benefits of crime, raising the probability of being caught or increasing the costs of punishment upon being caught.
Preaching to potential sexual harassers will have minimal impact unless we can change the probability of their being caught and the quantum of punishment they suffer thereafter.
The probability of sexual harassers being caught, in turn, depends on the likelihood of the victim making a complaint in a reasonable time span and then being able to prove the allegation. Thus, the prevention (or, failing prevention, the punishment) of sexual harassment in the workplace depends on:
- Making it less traumatic and onerous for victims to complain (without giving up the principles of natural justice)
- Harnessing technology to make the establishment of what actually happened go beyond the "he-said-she-said" impasse
- Meting out exemplary punishment where guilt is established.
Here are some quick ways for making each of these happen in the corporate world. Simply having these guards in place could hugely reduce the incidence of sexual harassment. Like speed cameras on highways, their presence (even if they are not triggered) may deter potential transgressors significantly.
Ease of Making Complaints
Victims often blame the HR or the Internal Complaints Committee (ICC) for moving slowly on their complaints of sexual harassment instead of taking their allegations at face value and proceeding on that basis. While there are some cases where the harasser’s position in the organization may reduce the temperature of the feet of HR and the ICC by several degrees, we should not forget that both the HR and the ICC are meant to be neutral entities whose prime responsibility in this context is to see that justice is done.
The victim, however, may require much more support at this critical time than either the HR or the ICC can provide, especially given the need for impartiality as evidence is gathered and assessed. In the absence of such aid, a large proportion of victims may never raise complaints till they are safely out of the organization (and then we wonder why so many complaints come after decades) and are encouraged by movements like #MeToo.
It is, therefore, imperative for organizations that are serious about battling sexual harassment at the workplace to create additional support structures. Let’s call them Friends-of-the-#Mes (or FoMs) for the time being. The FoMs must be independent of HR as well as the ICC and could report to the Chair of the Nominations and Remuneration Committee of the Board. Conflicts of interest may be further reduced by appointing specialized external service providers or non-profits (paid by the company) to provide FoM services.
What services should FoMs provide? Their services should essentially consist of advice and comfort of the kind that could be given by a legally savvy but caring friend so that the victim no longer feels alone or scared. After all, it is the additional trauma of frequently having to recount the horrible events, the repeated cross-questionings about them, and the headaches of following up until some action is taken that makes victims say: "The real harassment starts after the harassment episode!" To provide this support, the FoM must not only be resourced to run a hotline and counseling service for sexual harassment complaints but given access to records on behalf of the victim as well as accompanying privileges at hearings (and possibly even representational rights) which no work-friend of the victim is given today even if such a friend were available and had the time to pursue the victim’s case. Engaging an FoM service could make a huge difference to the timeliness and courage with which women come out with their harassment stories and totally change the expectations perpetrators have about getting called out – which is obviously the first step before any conviction or punishment can take place.
While FoM is best placed outside the HR umbrella, HR can and should be vigilant for any signs of post-harassment victimization of the complainant. Besides being open to feedback from the individual or the FoM, HR should track sudden changes in ratings, assignment allocations, nominations, and career-plan trajectories. If any of these show signs of tapering off after a person speaks out, HR has a duty to establish that the decline is not linked to the complaint.
Another way in which HR can ease the challenges for a victim wanting to speak up is to give a prompt and sympathetic ear to the person’s requests for a job transfer away from the environment where the harassment took or is taking place. These requests (and they should be actual requests – not prompted by HR just to close the complaint) could be accommodated without insisting on the higher standards of proof that are needed for taking action against alleged perpetrators. Victims can find it far easier to recover as well as plan their cases away from the atmosphere where the trauma occurred. Leave can play a similar role and could be granted on a special basis, if sought, just based on prima facie evidence of harassment. These concessions, together with FoM support, would go a long way to encouraging the more than three-quarters of the women who face sexual harassment today but remain quiet5, to come forward.
Ideally, we should identify harassers as early as possible. Even before an individual victim complains, there are pre-emptive steps organizations can take to target potential perpetrators. Most large organizations with mature HR practices have some form of a 360º feedback process. It would require relatively minor tweaking to identify supervisors or peers who display behaviors that are more or less serious forms of sexual harassment. Depending on the degree of seriousness and consensus among raters, individuals could be counseled, cautioned, or cauterized. And all without a victim having to come forward, be identified, and go through a possibly traumatic process to see justice served.
She Said – and She Can Prove It
Whether in the recently concluded confirmation hearings for Brett Kavanaugh by the US Senate or in the twitter wars of India’s #MeToo moment, the final verdict often just hinges on a choice between what he-said-and-she-said. This gives everyone free reins to exercise their passions, prejudices, and powers of shouting. Whatever be the outcome, one can never be certain of its fairness.
Organizations wishing to preempt such situations today have the option to use technology for preserving incontrovertible evidence. While the prime goal would be to deter harassment in face-to-face interactions (since most perpetrators are now smart enough not to reveal themselves through e-mails, e-messages or phone calls), these steps would also discourage baseless complaints.
The actual measures can range from simply extending the coverage of the existing network of CCTV cameras to all employee interaction spaces (which, in terms of privacy, may be no different than an open office) through providing these cameras with audio feeds and finally going on to more portable (but not hidden) video-audio solutions which could also cover off-site interactions. I am sure more technologically savvy heads than mine can work out the most cost-effective solutions. What is more important at this stage is to stress the guidelines for making these devices effective in checking harassment without eroding the openness and trust necessary for normal business functioning. Here is a tentative list of guidelines and safeguards.
In the first place, to trigger retention of a particular time slice of the ongoing recording (whether by a fixed or portable device) to a central storage with an otherwise limited holding-period, one of the participants in an interaction would have to make a request in a specified time (say 24 or 48 hours) after it occurs. The handling of such requests would be automated and not alert anyone in the organization. Access to that retained segment would be provided only to a reviewing authority, like the ICC, if so requested by the victim within some reasonable time frame (say, up to a year after the event). These access requests would need to be authorized by both HR and the accused. One would assume most individuals, keen to clear their names, would be happy to grant the permission – or have the refusal factored against them in the proceedings. Most importantly, even to the reviewing authority, the audio component would be provided only as a transcript prepared by a confidentiality-bound service provider, after redacting all material that does not have relevance to the charge.
Far from providing managements with unrestricted surveillance access that most of us fear when we hear about recording devices (I have devoted an entire column to the topic6), with safeguards such the ones described, we would have rare instances of recording retention and even fewer cases of recording access being provided to a very restricted group, with nothing irrelevant to the investigation being revealed. In fact, we should see interactions revert back to normal from the disturbing recent trend of male executives avoiding one-to-one meetings with female employees or clients so as to preempt future complications.7 The most important gain from simply having the possibility of calling for an unambiguous record could well be to minimize the number of occasions on which it is actually put into play.
I appreciate the aversion some organizations and people have about introducing technology into the prescribed prevention-mix. They are, of course, free to leave it out. Should they do so, they can still use the suggestions made in the previous section on reducing the fear and trauma of making complaints. However, they will be unable to gain the deterrent benefits proposed in the next section (on ratcheting up the pain of punishments) unless they can find equally robust evidence-gathering mechanisms to justify exemplary punishments.
Hitting Where it Hurts
Presently, even for cases where sexual harassment is established by the ICC, the internal punishments (as distinct from the criminal cases or media coverage which select cases attract) are like the lowest two speeds of a ceiling fan regulator. When the regulator is set on '1', the perpetrator is reprimanded or transferred and if it’s pushed to '2', he is asked to give in his resignation, which is discreetly accepted. This flies in the face of the Becker paradigm4 whose emphasis on the quantum of punishment has been demonstrated repeatedly.8
There is no doubt that there are differences of degree and kind in the varieties of sexual harassment men cause in organizations. Hence, the relatively light punishments at the lower end of the fan regulator do serve a purpose. The real deterrent effect will only emerge, however, from the option to have truly painful punishments for the most serious offenders. Resignations and even simple terminations leave most benefits intact. In fact, at senior levels, terminations can trigger a range of compensatory payments which make a mockery of deterrence – and this doesn’t happen only in India.9 Last I checked, laughing all the way to the bank wasn’t a very onerous punishment. Such payment contracts, stock benefits, and medical insurance coverages should be voided and even past rewards clawed back when very serious sexual harassment charges (regulator scale of '6') are proved. Moreover, company policy should mandate honest responses to reference checks when separations are triggered by sexual harassment complaints.
Just the awareness of the punishments possible at the upper end of the scale will do more to 'de-ardor-ize' would-be perpetrators than days of sensitization seminars.
Every Future Case is Preventable
A cursory reading of the suggestions given in this column might give an impression that HR has little to contribute to or gain from the elimination of sexual harassment at the workplace. Nothing could be further from my intent. If I have given a little more space to FoM services and the use of technology for retaining evidence, it is because these are relatively novel ideas in this context. However, it is up to HR to drive their implementation and thus prevent (and, if necessary, penalize) sexual harassment by:
- Making it easier for victims to lodge and pursue complaints
- Recording evidence that either condemns or clears the accused
- Lifting punishment levels for the worst offenders to provide a real deterrent.
HR also has to review and, if necessary, reformulate policies that could indirectly have a bearing on sexual harassment. One such area relates to consensual relationships at the workplace. I must keep my policy suggestions about consensual relationships for another time but it is clear that while office romances will continue to bloom (regardless of the codes we impose), they will increasingly have to stay within boundaries where Kratos (the spirit of power) doesn’t substitute Cupid.
Perhaps the most challenging cases for CHROs will be when the sexual harassment allegations are against their own CEOs, at which point most ICCs and other internal checks tend to falter badly.
It is most useful in such situations, if the company is part of a larger group or overseas MNC, to have a standing policy for CEO-related complaints to be handled at the Group or Global/Regional headquarter level. Standalone companies can substitute the Nomination and Remuneration Committees of their Boards for this purpose.
While HR is bound to take the practical steps suggested here (or any others that yield equivalent results) because they owe a safe working environment to women, it is not as if this will have no side benefits for HR’s larger goals. At least for the first few corporates that adopt these measures, there should be perceptible improvement in their ability to attract quality women recruits.
I know I am disappointing some friends who were hoping I could suggest ways of transforming the nature of males or of corporate culture so that such atrocious behavior just didn’t arise. My goal has had to be circumscribed both by the limits of my competence and my conviction that we owe it to potential victims to stop sexual harassment in the shortest time possible though that means its innate causes or cultural enablers are left to be tackled another day. Even one additional case of such predatory behavior is one too many and, therefore, what I have suggested are the most effective practical ideas for curtailing sexual harassment in the corporate environment as quickly as possible.
- Namrata Singh, #MeToo: Companies rush to sensitize employees, Times of India, 13 October 2018.
- Frank Dobbin and Alexandra Kalev, Why Diversity Programs Fail, Harvard Business Review, July-August 2016
- Kingsley R. Browne, Sex, Power, and Dominance: The Evolutionary Psychology of Sexual Harassment, Managerial and Decision Economics, 27: 145–158, 2006.
- Gary S. Becker, Crime and Punishment: An Economic Approach, Journal of Political Economy, 76(2) 1968.
- Mugdha Variyar, #MeToo: A survey says nearly 80% women never report harassment, Economic Times, 16 October 2018.
- Visty Banaji, Brave new corporate world: On employee data protection and privacy, People Matters, 17 April 2018.
- Claire Cain Miller, Unintended Consequences of Sexual Harassment Scandals, New York Times, 9 October 2017.
- Avner Bar-Ilan and Bruce Sacerdote, Response to Fines and Probabilities in a Natural Experiment, Journal of Law and Economics, 47-1, April 2004.
- Daisuke Wakabayashi and Katie Benner, How Google Protected Andy Rubin, the ‘Father of Android’ – The internet giant paid Mr. Rubin $90 million and praised him, while keeping silent about a misconduct claim, New York Times, 25 October 2018.