--Aggrieved Woman Employee-Complainant Unwilling to File her Sexual Harassment Complaint?--
The Aggrieved Woman Employee personally meets the Presiding Officer and Woman Employee-Member of the Internal Committee of an IT Establishment on 20.8.20 and narrates a series of sexual harassment incidents she was subjected to by her Immediate Superior for the past four months. The IC Members ask her to file/submit her Written Sexual Harassment Complaints immediately, but she expresses her unwillingness to give any complaint in writing due to apprehensions and returns to her work desk.
The IC Members remind her two times to file her Sexual Harassment Complaints as discussed.
What should the IC do now, or what should her Employer do?
Guidelines are welcome, and in fact, solicited to effectively deal with such cases.
Harsh Kumar Sharan, Kritarth Consulting Pvt Ltd Spl Educator PoSH Mandatory Programs, External Member, Internal Committees PAN India #holistichr #PoshMasters 28.8.20
From India, Delhi
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214The Aggrieved Woman Employee personally meets the Presiding Officer and Woman Employee-Member of the Internal Committee of an IT Establishment on 20.8.20 and narrates a series of sexual harassment incidents she was subjected to by her Immediate Superior for the past four months. The IC Members ask her to file/submit her Written Sexual Harassment Complaints immediately, but she expresses her unwillingness to give any complaint in writing due to apprehensions and returns to her work desk.
The IC Members remind her two times to file her Sexual Harassment Complaints as discussed.
What should the IC do now, or what should her Employer do?
Guidelines are welcome, and in fact, solicited to effectively deal with such cases.
Harsh Kumar Sharan, Kritarth Consulting Pvt Ltd Spl Educator PoSH Mandatory Programs, External Member, Internal Committees PAN India #holistichr #PoshMasters 28.8.20
From India, Delhi
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Dear all,
There are two issues involved in this post, one is legal and other is the organisation's culture.
First, let us discuss legal issue. While investigating sensitive cases like sexual harassment, it is important to conduct an investigation in proper legal framework. Against this backdrop, it is important to receive a written complaint. A written complaint is a starting point of investigation. IC cannot function like erstwhile "village panchayat" where verbal complaints were accepted and discussed.
The second issue is the organisation's culture. The woman hesitation could be out of the following reasons:
a) She fears that her name could get publicity
b) Whether grievance on sexual harassment or otherwise, a company must create a culture of justice in the company. If the employees perceive that such culture does not exist then consequently it will have a fall back on the sexual harassment complaint also.
c) That the woman endured sexual harassment for the last four months speaks volumes. How come her tormentor mustered the courage to do that? Should we interpret that her tormentor enjoys some protection from the top management?
Additional Comments: - If it is true that the woman employee endured sexual harassment for the last four months then how come her body language was not picked up by other colleagues? Nowadays, every other person boasts of being expert in reading the body language. What happened to the "vibes" that the woman sent through her body language? Why nobody picked up these vibes?
If it is true that sexual harassment went on for the four months then why the other colleagues were silent? Why other women were also silent? Why none of them came forward to report to HR on colleague's harassment? When a person meets with a road accident, not necessarily the Indians come forward to give timely help. Rather they prefer to be bystander and express their sympathy. Has something similar happened with that woman also? Did other colleagues show apathy towards her suffering?
If it is true that sexual harassment went on for the four months then it shows the overwhelming failure of HR also. What the hell HR was doing? What happened to their "employee engagement" initiatives? Why the HR was disengaged with the ground realities? Why they could not find on their own of this harassment through their informal sources?
Thanks,
Dinesh Divekar
From India, Bangalore
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There are two issues involved in this post, one is legal and other is the organisation's culture.
First, let us discuss legal issue. While investigating sensitive cases like sexual harassment, it is important to conduct an investigation in proper legal framework. Against this backdrop, it is important to receive a written complaint. A written complaint is a starting point of investigation. IC cannot function like erstwhile "village panchayat" where verbal complaints were accepted and discussed.
The second issue is the organisation's culture. The woman hesitation could be out of the following reasons:
a) She fears that her name could get publicity
b) Whether grievance on sexual harassment or otherwise, a company must create a culture of justice in the company. If the employees perceive that such culture does not exist then consequently it will have a fall back on the sexual harassment complaint also.
c) That the woman endured sexual harassment for the last four months speaks volumes. How come her tormentor mustered the courage to do that? Should we interpret that her tormentor enjoys some protection from the top management?
Additional Comments: - If it is true that the woman employee endured sexual harassment for the last four months then how come her body language was not picked up by other colleagues? Nowadays, every other person boasts of being expert in reading the body language. What happened to the "vibes" that the woman sent through her body language? Why nobody picked up these vibes?
If it is true that sexual harassment went on for the four months then why the other colleagues were silent? Why other women were also silent? Why none of them came forward to report to HR on colleague's harassment? When a person meets with a road accident, not necessarily the Indians come forward to give timely help. Rather they prefer to be bystander and express their sympathy. Has something similar happened with that woman also? Did other colleagues show apathy towards her suffering?
If it is true that sexual harassment went on for the four months then it shows the overwhelming failure of HR also. What the hell HR was doing? What happened to their "employee engagement" initiatives? Why the HR was disengaged with the ground realities? Why they could not find on their own of this harassment through their informal sources?
Thanks,
Dinesh Divekar
From India, Bangalore
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Hello Harsh Kumar,
Our esteemed member Dinesh has raised pertinent issues on the instance cited. It's an undisputed fact that women in our country (not only in India but also worldwide) are vulnerable to such harassments day in and day out. This issue is more prevalent in the unorganized sector and is often tolerated by poorly paid laborers and female workers. We are aware that the Internal Committee (IC) cannot proceed without the formal filing of complaints. Additionally, even if a complaint is filed, factors such as the fear of weak rhetorical skills, lack of witnesses, potential victimization, and the fear of losing one's job hinder victims from speaking up. Most of these crimes occur behind closed doors, which presents additional challenges to be addressed.
In this age of CCTV technology, surveillance gadgets should be installed everywhere, capable of recording voices and sounds, which could to some extent facilitate the investigation process.
From India, Bangalore
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Our esteemed member Dinesh has raised pertinent issues on the instance cited. It's an undisputed fact that women in our country (not only in India but also worldwide) are vulnerable to such harassments day in and day out. This issue is more prevalent in the unorganized sector and is often tolerated by poorly paid laborers and female workers. We are aware that the Internal Committee (IC) cannot proceed without the formal filing of complaints. Additionally, even if a complaint is filed, factors such as the fear of weak rhetorical skills, lack of witnesses, potential victimization, and the fear of losing one's job hinder victims from speaking up. Most of these crimes occur behind closed doors, which presents additional challenges to be addressed.
In this age of CCTV technology, surveillance gadgets should be installed everywhere, capable of recording voices and sounds, which could to some extent facilitate the investigation process.
From India, Bangalore
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Sir,
It is still surprising that the IT company didn't know what to do in this context even after several incidents like these happened exclusively in IT companies. There are several criminal acts like "Nirbhaya," "Disha Acts," and several other judgments. You can find information on women employees' sexual harassment through a Google search.
There is no need for cases like this to be given in writing. An oral statement to higher authorities is enough for his transfer from that place and separation of the two individuals with different tasks. Place an inquiry for fact-finding, then take appropriate action if necessary. Our ultimate goal is to ensure the safety of women from such harassment and provide a free and fair work environment where every woman can work happily with the freedom promised by the constitution to every citizen, regardless of gender discrimination.
It is not a question of whether the woman is mischievous or the accused is innocent. The important thing is to uphold the image of the company's office branch.
From India, Nellore
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It is still surprising that the IT company didn't know what to do in this context even after several incidents like these happened exclusively in IT companies. There are several criminal acts like "Nirbhaya," "Disha Acts," and several other judgments. You can find information on women employees' sexual harassment through a Google search.
There is no need for cases like this to be given in writing. An oral statement to higher authorities is enough for his transfer from that place and separation of the two individuals with different tasks. Place an inquiry for fact-finding, then take appropriate action if necessary. Our ultimate goal is to ensure the safety of women from such harassment and provide a free and fair work environment where every woman can work happily with the freedom promised by the constitution to every citizen, regardless of gender discrimination.
It is not a question of whether the woman is mischievous or the accused is innocent. The important thing is to uphold the image of the company's office branch.
From India, Nellore
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Dear Gannahope,
You have recommended that the Internal Committee (IC) can also take the oral complaint. Whatever the position of the law may be, we need to discuss the implications of the acceptance of the oral complaints.
Complaints on sexual harassment are of a serious nature. It involves the dignity of the woman as well as the accused. Against this backdrop, an aggrieved woman must be encouraged to file a written complaint. Women of the 21st century are expected to be assertive enough to file a written complaint. If working women do not muster the courage to give a written complaint, they will defy their background, grooming, education, etc.
You have quoted the example of Nirbhaya. Please note that Nirbhaya underwent the worst kind of sexual assault. She was also physically tormented. Notwithstanding the ordeal she went through, she stood up and gave evidence to the police. Her tormentors had maimed her and she was not able to speak, but undeterred Nirbhaya gave the replies to the police personnel's interrogative questions in writing. If Nirbhaya could do it, why can't a working woman in the office do the same?
Encouraging oral complaints on sexual harassment has a negative side too. What if a woman makes an oral complaint, but members of the IC do not entertain such a complaint? What evidence will an aggrieved woman have of her oral complaint?
Lastly, we, the members of the forum, are third parties and we should look at each case dispassionately. It should be known that all women are not as white as lilies. What if the culture of oral complaints is encouraged, and a woman employee, to settle a score with her male colleague, makes a false accusation of sexual harassment? What if a male employee is required to face an inquiry by the IC even though he is not guilty? Will the character of the male colleague not come under scrutiny? Is it easy for a male colleague to continue with the taint?
False allegations of sexual harassment have been going on since time immemorial. If even Lord Gautam Buddha was not spared from such accusations, then who are we, the ordinary mortals? Therefore, let us not show our schmaltz even in cases of sexual harassment. Let us concentrate on delivering justice and not on the person.
Thanks,
Dinesh Divekar
From India, Bangalore
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You have recommended that the Internal Committee (IC) can also take the oral complaint. Whatever the position of the law may be, we need to discuss the implications of the acceptance of the oral complaints.
Complaints on sexual harassment are of a serious nature. It involves the dignity of the woman as well as the accused. Against this backdrop, an aggrieved woman must be encouraged to file a written complaint. Women of the 21st century are expected to be assertive enough to file a written complaint. If working women do not muster the courage to give a written complaint, they will defy their background, grooming, education, etc.
You have quoted the example of Nirbhaya. Please note that Nirbhaya underwent the worst kind of sexual assault. She was also physically tormented. Notwithstanding the ordeal she went through, she stood up and gave evidence to the police. Her tormentors had maimed her and she was not able to speak, but undeterred Nirbhaya gave the replies to the police personnel's interrogative questions in writing. If Nirbhaya could do it, why can't a working woman in the office do the same?
Encouraging oral complaints on sexual harassment has a negative side too. What if a woman makes an oral complaint, but members of the IC do not entertain such a complaint? What evidence will an aggrieved woman have of her oral complaint?
Lastly, we, the members of the forum, are third parties and we should look at each case dispassionately. It should be known that all women are not as white as lilies. What if the culture of oral complaints is encouraged, and a woman employee, to settle a score with her male colleague, makes a false accusation of sexual harassment? What if a male employee is required to face an inquiry by the IC even though he is not guilty? Will the character of the male colleague not come under scrutiny? Is it easy for a male colleague to continue with the taint?
False allegations of sexual harassment have been going on since time immemorial. If even Lord Gautam Buddha was not spared from such accusations, then who are we, the ordinary mortals? Therefore, let us not show our schmaltz even in cases of sexual harassment. Let us concentrate on delivering justice and not on the person.
Thanks,
Dinesh Divekar
From India, Bangalore
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Mr. Dinesh's post - As a student of Law, I'm reminded of a cardinal principle that - 'Let a hundred guilty be acquitted, but one innocent should not be convicted'. At the same time, I'm saddened by seeing the culture of causing harm to the innocent at any cost, which is bad for society, be it male or female. Despite there being laws in force intended to safeguard the interests of females, it's unfair to blame only one gender for ulterior motives. If the process doesn't guarantee the fair administration of natural justice, the very purpose of jurisprudence is defeated. In the workplace, equality and natural justice should prevail at all levels and in all circumstances.
From India, Bangalore
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From India, Bangalore
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Dear Friends,
Mr. Harsh Kumar has raised a very common issue in our country where the majority of women do not take formal action against perpetrators. There are numerous reasons for this, and many studies have been conducted on this topic.
Our esteemed members have contributed significantly to this discussion. They are all dignitaries.
Merely providing oral statements to higher authorities is insufficient. It is imperative for aggrieved women to file a written complaint as per the law. In cases of physical incapacity, the complaint can be submitted by a relative, friend, co-worker, or any individual with knowledge of the incident, with the woman's written consent. In instances of mental incapacity, the complaint can be lodged by a relative, friend, special educator, qualified psychiatrist, psychologist, or the authority responsible for her care. In the event of the woman's death, a legal heir or authorized person can file the complaint.
I have detailed these points to emphasize that a written complaint by or on behalf of an aggrieved woman is crucial for proceedings under the POSH Act. The Internal Committee (IC) must initiate its process only upon receiving a written complaint. It is essential not to rely solely on Google search.
The IC has a responsibility to assist the aggrieved women in submitting the written complaint. Merely reminding her twice to file the complaint is insufficient. Extra efforts such as providing necessary counseling, showing empathy, and acting emphatically are required.
There seems to be a failure in conducting awareness and orientation programs, leading to a hostile environment within the organization, in my opinion.
I hope I have addressed the concerns raised by Mr. Harsh Kumar.
From India, Mumbai
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Mr. Harsh Kumar has raised a very common issue in our country where the majority of women do not take formal action against perpetrators. There are numerous reasons for this, and many studies have been conducted on this topic.
Our esteemed members have contributed significantly to this discussion. They are all dignitaries.
Merely providing oral statements to higher authorities is insufficient. It is imperative for aggrieved women to file a written complaint as per the law. In cases of physical incapacity, the complaint can be submitted by a relative, friend, co-worker, or any individual with knowledge of the incident, with the woman's written consent. In instances of mental incapacity, the complaint can be lodged by a relative, friend, special educator, qualified psychiatrist, psychologist, or the authority responsible for her care. In the event of the woman's death, a legal heir or authorized person can file the complaint.
I have detailed these points to emphasize that a written complaint by or on behalf of an aggrieved woman is crucial for proceedings under the POSH Act. The Internal Committee (IC) must initiate its process only upon receiving a written complaint. It is essential not to rely solely on Google search.
The IC has a responsibility to assist the aggrieved women in submitting the written complaint. Merely reminding her twice to file the complaint is insufficient. Extra efforts such as providing necessary counseling, showing empathy, and acting emphatically are required.
There seems to be a failure in conducting awareness and orientation programs, leading to a hostile environment within the organization, in my opinion.
I hope I have addressed the concerns raised by Mr. Harsh Kumar.
From India, Mumbai
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Hi Sree Divakarji,
I do agree with the contents of yours. I wish to clarify I referred to Nirbhaya as an Act, not as a person. The Nirbhaya Act contains several dos and don'ts in every situation, like offices also.
Moreover, I am not supporting any mischievous women with personal intentions and provocations. It was understood that when it comes to the above case, the IC was already allotted and convened a meeting with both parties and requested her to give a written complaint, but she didn't; instead, an oral report was brought to the notice of the IC.
I opine that nothing is hindering the IC from making a thorough inquiry on the above issue with the oral report.
I don't suggest severe punishment either. Avoid nuisance in the office, spare them to different places as the IC came, and immediate attention was taken. Then, if it repeats, follow CCA rules if applicable.
Everyone should remind that Acts are made above ground realities. That's why several amendments are required now and then.
So compelling a written complaint is essential but not possible in every issue.
From India, Nellore
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I do agree with the contents of yours. I wish to clarify I referred to Nirbhaya as an Act, not as a person. The Nirbhaya Act contains several dos and don'ts in every situation, like offices also.
Moreover, I am not supporting any mischievous women with personal intentions and provocations. It was understood that when it comes to the above case, the IC was already allotted and convened a meeting with both parties and requested her to give a written complaint, but she didn't; instead, an oral report was brought to the notice of the IC.
I opine that nothing is hindering the IC from making a thorough inquiry on the above issue with the oral report.
I don't suggest severe punishment either. Avoid nuisance in the office, spare them to different places as the IC came, and immediate attention was taken. Then, if it repeats, follow CCA rules if applicable.
Everyone should remind that Acts are made above ground realities. That's why several amendments are required now and then.
So compelling a written complaint is essential but not possible in every issue.
From India, Nellore
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As per Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, a woman, if she is unable to make a written complaint, can give an oral complaint to the Internal Committee or the Local Committee, as the case may be, within three months of the incident. According to the statement, the woman employee made a complaint to the Chairman and employee member of the continuous harassment being faced by her for the last four months, so the Internal Committee can take cognizance of the incidents of the last three months and proceed in the matter.
It may be premature to comment on the merits of the case. Mere reluctance of the employee to submit the complaint in writing need not lead to doubting it. This is the unfortunate reality in the Indian scene where women employees are often shy to speak about the harassment they have faced. Indeed, it has come out in the media that almost all working women are daily exposed to sexual harassment, yet many of them desist from making an issue of them as they feel they are likely to be more harassed in the process of seeking justice. So it is better to keep quiet; that may be the logic.
As far as an organization is concerned, once it has come to know of the complaint, it has to take action. To initiate the further process of disciplinary action, it is necessary that the employee stands up for her complaint and she is subjected to cross-examination. The willingness may be ascertained from her, and if she is willing for it, then the formal process can be initiated. But if she is unwilling to cooperate, then the organization has to take cognizance of the matter and hold a discreet inquiry and take administrative action like strict warning, transfer, etc. The perpetrator of the crime has to be given a clear indication that his undesirable activities have been taken note of and he is on notice. In such cases, where there is a genuine feeling of being harassed, the organization has to take exemplary action so that the message spreads across.
From India, Mumbai
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It may be premature to comment on the merits of the case. Mere reluctance of the employee to submit the complaint in writing need not lead to doubting it. This is the unfortunate reality in the Indian scene where women employees are often shy to speak about the harassment they have faced. Indeed, it has come out in the media that almost all working women are daily exposed to sexual harassment, yet many of them desist from making an issue of them as they feel they are likely to be more harassed in the process of seeking justice. So it is better to keep quiet; that may be the logic.
As far as an organization is concerned, once it has come to know of the complaint, it has to take action. To initiate the further process of disciplinary action, it is necessary that the employee stands up for her complaint and she is subjected to cross-examination. The willingness may be ascertained from her, and if she is willing for it, then the formal process can be initiated. But if she is unwilling to cooperate, then the organization has to take cognizance of the matter and hold a discreet inquiry and take administrative action like strict warning, transfer, etc. The perpetrator of the crime has to be given a clear indication that his undesirable activities have been taken note of and he is on notice. In such cases, where there is a genuine feeling of being harassed, the organization has to take exemplary action so that the message spreads across.
From India, Mumbai
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Dear Friends,
Indeed it is a nice way of respecting seniors by putting "ji" after their names. Why only seniors, to every one.
With due respect to every one, I would like to reproduce the section 9 of the Act verbatim.
9. Complaint of sexual harassment.—
(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for
the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Since our learned friend and senior member / super moderator KK!HR ji has not considered the full section 9 while giving his response I thought of reproducing it verbatim.
Also I thought of reproducing it since our another senior member Gannahope ji has opined that nothing is hindering the IC to make thorough enquiry on the issue with the oral report.
Sorry, I am going letter by letter of the Act.
From India, Mumbai
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Indeed it is a nice way of respecting seniors by putting "ji" after their names. Why only seniors, to every one.
With due respect to every one, I would like to reproduce the section 9 of the Act verbatim.
9. Complaint of sexual harassment.—
(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for
the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Since our learned friend and senior member / super moderator KK!HR ji has not considered the full section 9 while giving his response I thought of reproducing it verbatim.
Also I thought of reproducing it since our another senior member Gannahope ji has opined that nothing is hindering the IC to make thorough enquiry on the issue with the oral report.
Sorry, I am going letter by letter of the Act.
From India, Mumbai
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