Indian companies are nearly at bottom of the pyramid in the context of their readiness on the issue of reigning in sexual harassment at the workplace. This can primarily be attributed to the late incorporation of the Sexual Harassment of Women at Workplace Act 2013 in the Indian law (this law is one of the most recent ones, even Pakistan promulgated a law in 2010) and inertia in the acceptance of workplace sexual harassment as a real issue which can impact their business and corporate culture. While most companies have formed an Internal Complaints Committee (ICC), as mandated by the law and which carries a penal action in case of failure to do so, they are still far from developing ICC as a robust institutional system. Glaring gaps also exist in domains of employee sensitization and training efforts, issue management, awareness and human resource angles. A survey by the Indian National Bar Association (2017) found that out of 6,047 participants (both male and female), 38% said they had faced harassment at the workplace. Of these, 69% did not complain about it. While companies are legally required to have policies in place against sexual harassment at the workplace, women seldom use them to complain because of a fear of losing their jobs and also due to the lifelong stigma such a move could entail. Those who finally do gather the courage to act often end up entangled in long-winding legal procedures.
According to EY’s Fraud Investigation and Dispute Services survey report (2016), there are several other challenges involved in the investigation of sexual harassment cases. The first and foremost challenge is dealing with the human element and sensitivities. Complainants are not in a state of mind to narrate incidents coherently in many cases. This may be due to their feeling of insecurity in general, shock or lack of confidence in an ICC. The real challenge is to earn employees’ trust and handle such situations tactfully. This will help elicit desired information that can facilitate the inquiry and lead to a logical conclusion. This also applies to drawing out relevant information from the respondent. The second challenge comes in terms of maintaining confidentiality. Stakeholders such as the complainant, respondent, witnesses and the management play a critical role during the inquiry process. Any leaks in the chain of confidentiality could tarnish the reputation of individuals as well as the company. This requires intelligent handling, since the provisions in the Act prescribe penalties if the details of a complainant, respondent or witness are disclosed publically. The third challenge is the verification of facts. The challenge encountered here is to authenticate facts if the harassment has occurred in isolated areas or without any witnesses. Another challenge is seen in uncovering tangible evidence. The Act vests the powers of a civil court to an ICC, under which, the latter can summon and enforce the attendance of individuals and examine them under oath. They can also demand discovery and production of documents. However, this may be difficult to execute because ICCs may lack expertise in this area and may not be equipped to conduct a methodological investigation to arrive at a logical conclusion. Presenting unbiased results is also a prominent challenge. A four-member ICC will have three members who are members of the organization. Since they may know the complainant, there could be allegations of bias by either party. Maintaining a chain of custody can also be a challenge. Every piece of evidence discovered or collected in general and forensic evidence found during the investigation need to be kept under the ambit of the proper chain of custody since it needs to be scrutinized by the ICC, a law enforcement agency or the court of law. There is a possibility that an aggrieved party may challenge an inappropriate chain of custody.
In order to tackle these issues, all organizations must have a policy handbook which clearly states their sexual harassment policy, general harassment policy, policy about how sexual harassment investigations are conducted in the company. Organizations should be careful to not promote a workplace culture that allows any form of harassment to occur. It is essential for an employer to show that he/she takes appropriate steps following a sexual harassment complaint. In fact, demonstrating immediate action and ensuring that the consequences for the perpetrator are severe is also critical. The front line leader is usually the person initiating and following through on those steps, so they have to feel confident about what they are doing.
Employees, supervisors, and managers must be trained at least once a year, focusing on what sexual harassment is—explain that employees have a right to a workplace free of sexual harassment—review their complaint procedure, and encourage employees to use it. For managers and supervisors, sessions should educate them about sexual harassment and explain how to deal with complaints. Organizations need to ensure they understand the intricacies involved in putting up a company policy together for them to be fully and truly compliant on the Sexual Harassment of Women at Workplace Act 2013. They key is to make organizations and employees understand the functionalities of the Act and make them aware of the procedures involved in becoming so.
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