What workplace sexual harassment panels must keep in mind when investigating complaints

Committee members should conduct their investigations by following socio-legal parameters that will enable them to be effective redressal mechanisms.
What workplace sexual harassment panels must keep in mind when investigating complaints
What workplace sexual harassment panels must keep in mind when investigating complaints
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The Internal Committee (IC) is a unique feature of the Indian legislation that regulates sexual harassment in workplaces. As quasi-judicial bodies, they are bound by certain legal obligations as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. However, they are also bound by a social responsibility toward survivors of sexual harassment, and must ensure that survivors feel safe and heard during the reporting procedure. Committee members should therefore conduct their investigations by following socio-legal parameters that will enable them to be effective redressal mechanisms.

Moreover, this will also build trust and those experiencing sexual harassment will feel confident to report. Three such parameters that ICs should follow are, not questioning “credibility” of a complainant because of our biases, understanding “consent” in a nuanced manner, and thinking about “evidence” as a balance of probabilities.

“Credibility”, or the need to be vigilant about our biases

Testimonies are an essential component of sexual harassment investigations. IC members need to be vigilant of the ways in which our unconscious biases may impact our evaluation of how reliable a testimony is. Many times, I have seen respondents or witnesses attack the credibility of a complainant through character assassination. Character assassination in these investigations relies on certain social prejudices and stigmas that we, as a society, hold about women. The personal or sexual history of a woman is used as a justification for harassment as well as a tactic to undermine her credibility as a complainant. I have heard respondents and witnesses making statements like, “She has a lot of boyfriends” to “I heard she had an abortion.”

Such statements should be disallowed as they are irrelevant to sexual harassment investigations.

IC members must also ensure that they do not permit such statements to colour their own assessment of the situation. As Justice Dipak Misra said, “A judge should refrain himself from giving stigmatic observations on the character of the prosecutrix.” The Supreme Court, in State Of Maharashtra v Madhukar Narayan Mardikar, also explicitly stated, “...merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.” The Bombay High Court had dismissed the woman’s testimony because she was “an unchaste woman” but the Supreme Court disagreed with this and set a clear precedent.

“Consent”, or understanding power hierarchies

Understanding the nuances of consent is another important faculty for IC members. A common defense is, “She went along with till now; why is she suddenly complaining?” Consent can be constrained by power dynamics, fear of retaliation, not wanting to draw attention to oneself and many more reasons. In State of Himachal Pradesh versus Mango Ram, the Supreme Court ruled that, “Submission of the body under the fear of terror cannot be construed as a consented sexual act.” If we analyse this precedent in a wider gender justice and violence against women framework, going “along with something” because of fear that may arise out of a direct or implied threat is not consent. IC members should not question why the complainant did not say no, and rather consider:

  • Was there any possibility of violence if she said no?

  • Could saying no have resulted in negative professional consequences for the complainant?

  • Could saying no have resulted in an exclusionary and hostile work environment for her?

  • Was the respondent in a position of power over the complainant?

These questions will help members understand whether consent was given or if the woman had no choice but to comply.

“Evidence”, or understanding that an IC is not a criminal court

During awareness sessions, I get asked by employees, “How much evidence do I need to complain?” Situations of sexual harassment are often engineered to be insidious and in isolated settings. As a civil body, ICs must follow a balance of probabilities as opposed to “beyond reasonable doubt.”

A balance of probabilities suggests that more likely than not the incident occurred. Beyond reasonable doubt is the standard of proof required only for criminal courts. Indirect evidence and complainant testimony can be enough for an IC to establish sexually harassing behavior.

In State of Punjab V Gurmit Singh, the Supreme Court observed that, “the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.” In Bharwada Bhoginbhai Hirjibhai v State of Gujarat, the Supreme Court also considered that when a woman comes forward, considering the stigma attached to survivors, “is a built-in assurance, that the charge is genuine rather than fabricated.”

ICs should be sensitive to the fact that despite social barriers to reporting, a woman has come forward and give that adequate weight. Further, if the complainant testimony inspires confidence in the IC and members are able to justify why it inspired confidence, that can be enough for an IC to conclude that sexual harassment occurred.

ICs are vested with immense power. They must exercise their power and judgement while navigating the complex socio-cultural phenomenon of sexual harassment in an empathetic yet bias-free manner.

Abhaya Tatavarti is the lead consultant for the prevention of sexual harassment at Parity Consulting. Views expressed are the author's own.

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