As the #MeToo movement from the West settled on Indian shores, brewing up a storm in Bollywood and the Indian media industry, the corporates were not left behind in the exercise of ousting perpetrators of sexual harassment this year.

Companies are now mandated to compulsorily disclose sexual harassment cases in their annual reports.  A study of companies listed in Nifty shows, in the FY 2018 alone, 601 cases of sexual harassment have been reported. Wipro recorded 101 cases, ICICI bank follows with 99 cases, and Infosys with 77 cases in 2018.

Companies hire external firms to implement the POSH Act, manage redressal mechanisms and constitute Internal Complaints Committees. One such firm based in Bengaluru is Parity, which  actively helps large organizations across industries to implement the law.

In the beginning of 2018, Parity released the survey conducted by NASSCOM titled ‘Prevention of Sexual Harassment, A Toolkit on Best Practices’ along with the legal firm, Trilegal. They spoke to 120 companies, some big and some medium enterprises, and a few start ups also participated, all of whom revealed the conduct of the ICC within their respective organisations, through round-table discussions and questionnaires.

In an exclusive conversation with Citizen Matters, Parity’s Co-Founder Kalpana Tatavarti throws light on how the Internal Complaints Committee should function in compliance with the law.

Tell us about Parity.

I have been in the space of gender diversity and inclusion from 2011, but I wanted to challenge myself and do something bigger on my own to help women. I started Parity with a friend, Laxmi Char.

Parity Consulting is a diversity and inclusion firm that partners with organisations to build safe and inclusive work environments. We mainly offer three services: a) A wide range of  tools to enable organisations to implement Prevention of Sexual Harassment (POSH) as mandated by the SH law, b) consulting and workshops for growing the female talent pipeline, and c) consulting and workshops for creating inclusive work places where all kinds of diversity can thrive.

Our POSH solutions begin with senior leadership sessions, where we share employer responsibilities on creating a safe workplace, ICC capability building, awareness sessions for all employees and manager sensitisation sessions.

What is involved in preventing sexual harassment?

Our vision it to create workplaces that are equitable and safe. We want to see more diverse representation in leadership and for organisations to enable women to succeed. We conducted a survey with of 120 corporates such as Thomson Reuters, Oracle, HGS, and Wipro across India for NASSCOM with the legal firm, Trilegal. The findings revealed that the IT industry is really at the vanguard of implementing POSH with several best practices to their credit.

The findings showed that almost 80% of the companies had a gender neutral policy, over and above the law, where the law only mandates protection of women. Almost 90% of the companies conduct regular sensitisation programs for their employees. And 97% of the companies surveyed confirmed that they had set up the ICC to deal with SH complaints.

What are your duties as a third party or an external committee member?

We offer moral and legal support to all three parties involved (the company, complainant and respondent), ensure there is no bias to one side, maintain sensitivity and sometimes offer to do the paperwork such as the writing of the case report.

How receptive are corporate enterprises to setting up ICC? 

Nowadays the corporate sector is up to date with the best international practices. Most big enterprises have already set them up in order to be compliant with the law. Our survey found that only 3% of companies had not yet constituted an ICC.

What do companies need to do while setting up ICCs?

We advise investing in training the ICC. Both from a social and legal perspective; the ICC has an immense responsibility and should be equipped to handle that responsibility. We conduct general awareness training for all employees as well as sensitisation training for managers, and training  for ICCs. When we train ICCs, we equip them with a socio-legal framework to conduct just and fair inquiries. We also make them aware of their responsibilities as per legal requirements.

The ICC has certain processes and timeline to complete the investigation. The ICC can take up to 7 days to acknowledge the complaint and forward it to the respondent who has a right to know about the details of the accusation. The respondent has ten days to give his or her version. The hearings and deliberations must be completed within 90 days of the ICC receiving the complaint. During the investigation, the committee might summon witnesses they deem necessary and take stock of everything presented to them in the form of evidence.

Within ten days of closing the investigation, the ICC must give recommendations to the employer. Recommendations can range from issuing a warning letter to termination.

What are the guidelines for sensitivity that you ask members of ICC to follow?

Parity educates ICC members about the Principles of Natural Justice, which is a legal mechanism to ensure a fair and bias-free process. The questions should not attack the character of the complainant and get into embarrassing details that could result in victim-shaming. It is equally important to speak to the respondent with a lot of respect and not assume a tone of he/she being guilty.

What is that you tell employees during a workshop on sexual harassment?

In the general awareness sessions, my colleagues and I, start with the definition of basic terms such as an employee, workplace and sexual harassment as laid down in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013. We educate employees on the importance of maintaining professional boundaries. We tell them to be more observant of the comfort level of others.. Most people are already conscious of their conduct at the workplace. Sexual harassment training focuses on being more aware of your boundaries while consciously seeing how your behavior impacts the person at the receiving end. It is about maintaining a respectful, dignified and inclusive working environment for all employees.

At what point can the complaint be escalated and sent to the court, especially if there is a bias towards one party?

There are three routes an aggrieved person can take

1. The complainant has the right to file a criminal complaint if she is a woman. Organisations and ICCs are required to provide support, as requested.
2. Local Complaints Committee are committees that have to be constituted by the government for companies with less than 10 employees. Further, after the inquiry is completed and she feels that the ICC has conducted a biased inquiry, she can appeal to the local court.
3. There is no internal appellate mechanism within organisations as per the law. Either the Complainant or Respondent can ask for reconstitution of the committee if they are able to prove bias; they can also seek appeal to the courts.

Any interesting questions that comes up during your workshops?

I am always posed with this question, “What about men? Why about misuse?”. My answer to this is, “Every rule and every law can be misused. False accusations happen in every industry. That is the reason why the ICC exists, in order to weed out false complaints and to equally take both parties versions into account. “

Can the rules of an ICC vary from company to company policy-wise?

There are basic provisions that every ICC is legally bound by; however, the scope of the ICC may be expanded as per organisational policy. For example, ICCs in certain companies choose to take complaints anonymously, while some do not as anonymous complaints can be legally contested. We advise against HR conducting independent investigations on their own as they legally do not have the power to do so, only the ICC does.

A common feature across companies is in fact gender-neutral policies, according to our survey with NASSCOM and Trilegal, 73% of companies have gender-neutral policies. This is unlike Section 354 (A, B, C, & D) of the Indian Penal Code that protects only women from sexual harassment.

Is there ever a bias against the complainant due to the lack of proof?

In my experience, there is never any hard proof of sexual harassment. It is very difficult to prove and is extremely contextual to every complaint. We look at the facts, and background of the relationship of people involved.The ICC will find out if someone has seen a conversation or heard something relevant to the complaint for both parties in question. Our investigation is primarily the reconstructing of a narrative to study the facts. You do not need hard proof. As a civil body, circumstantial proof works for us.

After being empanelled by Ministry of Women and Child Development does Parity have any additional power or roles in helping corporates establish gender-sensitive policies? How does one go about being empanelled in the first place?

We had to apply for it on the Ministry of Women and Child Development’s website by disclosing the number of workshops conducted, and showing our continued commitment to the cause.

As an empanelled institute, we are a publicly listed resource to provide consultation and services on the implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. After every workshop we conduct on prevention of sexual harassment, the companies get a certificate of completion from Parity.  Educating employees and mitigating risk is a mandatory part of the SH act, and the certificate shows adherence to the law. It is our duty as an empanelled organisation to file the completion of any workshop on sexual harassment on the ministry’s website.

What is the most basic step that can be taken by an organisation to protect its employees from harassment ? 

Providing access to awareness resources is the most basic step. We have an e-learning module for 30 minutes that can be taken independently. This is a pre-recorded module on sexual harassment to educate employees. We created this for organisations to train their employees and offer resource material to be accessed one on one from a mobile or laptop. At the end of the session, you have to pass a test on whether you have understood harassment. If the viewer fails, it takes you to the start of the module again.

How do the committees decide the degree of the crime committed by the accused and the punishment deserved? In what situation is it okay to let go of the accused with a reprimand, and when does the committee know that the complaint has to be transferred to the police? Are there specific guidelines to execute the end result, since the ICC is not constituted by lawyers?

Committees must follow the principles of natural justice and the principle of proportionality. That being said, each inquiry is different and highly contextual; recommendations will vary. The ICC’s ability to provide recommendations is constrained to an organisational context. The aggrieved can simultaneously file a complaint with the police and with the ICC. The ICC is required to support the aggrieved if she chooses to take criminal action.

Why do we need an ICC to help an aggrieved person when complaints can be registered at the police?

It is mandated by the law. The authors of the legislation probably had specific reasons. However, in our view some of the benefits of an ICC are speed and accessibility. Further, ICCs are a civil function as opposed to criminal.

Do verdicts/decisions taken by the ICC have more of a chance to provide relief to women within corporate spaces than the police station or courts?

Recommendations provided by the ICC are constrained to an organisational context i.e. the action that they recommend are those that only an employer can enforce. Furthermore, as a civil function the standard of proof is lower than that of a criminal court. Therefore, I am not sure if a definitive comparison can be drawn. They are different provisions governing a criminal inquiry (police station) as opposed to an ICC inquiry.

What can the judicial system learn from the expedited process of the ICC that is mandated to put an end to the ordeal at a maximum of 90 days? From your experience, have ICCs been effective in this regard?

From our experience, ICCs have been effective in completing inquiries within 90 days. The time frame is effective as it gives all parties a clear picture of when they can expect a decision; rather than vague time frames that can increase duress.

How does a man report sexual harassment at the workplace in the absence of sufficient male representation on the ICC? Do the long verification procedures for both sides give men the fair opportunity to explain themselves, because the majority of ICC is constituted mostly by women unlike the judicial system?

Men can report sexual harassment if their organisational policy permits them to. Men are not entitled to protection under the Act. Further, the Act states that 50% of the committee must constitute women, not a majority. As a best practice for organisations with gender-neutral policies, we recommend a gender balance in the ICC.

Is it legal to terminate an employee for sexual harassment in the absence of an ICC, as some companies do not still have them? Does the manager/boss have the authority to decide the authenticity of the complaint? In that situation, can the accused take action against the company for wrongful termination without subject to an investigation?

No it is not. It goes against the principles of natural justice. Nobody but the ICC has the authority to determine authenticity of a complaint. If an ICC finds that a complaint has been made with malicious intent, it can recommend action against the complainant. However, inability to substantiate a complaint does not automatically establish malicious intent. Malicious intent needs to be clearly established.

On the T.V show Friends, Rachel points out to her boss/interviewer that when she thought he was coming onto her, she did not get litigious. It was a positive attribute the character listed to get hired. Does being non-litigious or non confrontational still look good to employers who generally prefer to suppress such matters? Or has there been a change in attitude?

It is hard to give a definitive answer. Organisations that are extremely committed to inclusive workplaces encourage speaking out and protect employees that do; they would rather nip the behaviour in the bud than have a toxic work culture snowball. The change in attitude is a process.