Following the 2017 debacle of Hollywood moghul Harvey Weinstein, social media hash tag movement #MeToo saw women across the world share their stories of sexual harassment at workplaces and beyond. The result – global CEOs, celebrities and politicians were called out on social media platforms for their behaviour, and companies could no longer ignore the accusations. Some of the biggest names in global businesses, including Uber’s former CEO Travis Kalanick, former Google Senior Vice President and Android Creator Andrew Rubin, former Intel CEO Brian Krzanich, former McDonald CEO Steve Easterbrook, were fired due to allegations of sexual misconduct. In India, a past allegation of sexual harassment surfaced against Flipkart Co-founder Binny Bansal. Though Bansal denied and Walmart said it couldn’t find evidence, the company’s investigation however revealed ‘lapses in judgement, particularly a lack of transparency in his response’ which ultimately led to his exit in November 2018.
In 2013, India enacted the first legislation – Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) – specifically to protect women from sexual harassment. In the same year, Criminal Law (Amendment) Act, 2013, popularly known as the Nirbhaya Act, was also passed, criminalising offences such as sexual harassment, stalking and voyeurism.
With record number of employees now working from home, the dynamics of sexual harassment at workplace has gone beyond the confines of a physical workstation to virtual harassment through text messaging, memes, gifts, emails, video calls and so on. For companies, the challenge lies in not just sensitising employees on appropriate virtual etiquette, but also in the effective redressal of complaints, along with respecting privacy and anonymity of the parties concerned.
With changing work models and work from home (WFH) becoming a long-term option, the applicability of POSH policy is also witnessing a change in form. Sana Hakim, Partner, POSH at Work, points out that ‘workplace’ has always been a subjective term and even companies that had work-from-home option considered home a kind of workplace only. “With personal and professional spaces now being intertwined, a lot of organisations are tweaking policies and unequivocally defining it (work from home) in their policies,” says Hakim. Also, the nature of sexual harassment is now under greater scrutiny in the digital space. Questions like at what hour of the day it is acceptable to call or message colleagues; what an employee says on an office call; how a person is dressed; whether the backdrop of a video call is sexually suggestive in any way; or whether an employee is insisting on video calls unnecessarily, are some of the newer parameters that comp anies are looking at while defining the do’s and don’ts.
Ishani Roy, Founder of Bengaluru-based Serein, which works with start-ups, venture capital firms and MNCs on diversity and safety issues, says prolonged work-from-home situation has resulted in rising frustration due to job pressure, uncertainties, and the need to balance family and household chores. “These uncertainties are often leading to uncomfortable conversations between colleagues. These situations even translate into disparaging phone calls from clients or late-night messages from colleagues who wish to speak about personal issues,” she adds. In the virtual world, there is a very thin line between harassment and a light-hearted banter, the latter being largely attributable to the intention of the person. Both intention and motive have gained greater significance than ever before for POSH policies in a post-Covid world.
With nearly 90 per cent of its employees working from home, the Indian IT & ITES sector stands out in the current scenario. According to industry body NASSCOM, over 1.3 million women are working in the Indian IT-BPM industry, accounting for over 34 per cent of the overall workforce and 24 per cent of managerial roles. According to Ashok Pamidi, CEO, NASSCOM Foundation, IT/ITES companies have sensitised employees regarding online harassment, “Employees are being told to be conscious of simple things such as the kind of language they use and the appropriate dress code for video calls,” he says.
Companies are reminding employees that phones and emails are now an integral part of working, and everyone has to be mindful of their behaviour while using them. Kanti Joshi, Lawyer and Founder, SASHA (Support Against Sexual Harassment), recalls a recent instance in a company during a video call where objection was raised about a team member wearing a T-shirt with sexually coloured words on it. As online etiquette catches up as part of preventive steps, “firms are using creative means as part of guidelines like citing more scenarios or examples that may occur on digital platforms to create awareness,” Joshi adds.
However, conducting an inquiry online is turning out to be a major challenge. Hakim points out that though investigation procedures remain the same, virtual investigation has its own challenges such as employees facing difficulty with privacy aspect of the investigation with other family members around, committee members not being able to read the finer nuances of behaviour of the people involved in the case and so on. Apart from difficulties in conducting inquiries, the inherent appellate mechanism in India still remains a tough nut to crack. Archana Tewary, Partner, J.Sagar Associates, says according to the Act if an aggrieved woman is not satisfied with proceedings of an internal committee (IC), she can approach a government appellate authority. However, “in most states the appellate authority is not specifically identified, or the aggrieved person cannot easily find out what the procedure for appeal is,” says Tewary. And even if one initiates the appeal process, following through it can be daunting. “Half of the times, when we explain the next possible process and steps, it discourages the aggrieved person from going forward with the appeal,” she adds.
India Inc And Posh
Though not too many, India Inc has had its fair share of tryst with sexual harassment. In 2002, IT services major Infosys saw the company’s then global sales head, Phaneesh Murthy, abruptly resigning to fight a lawsuit filed against him in the US. A former employee of the company Rekha Maxmovitch had filed the suit against Phaneesh alleging sexual harassment. Infosys later settled the case with a $3-million payout. At a press conference Nandan Nilekani, the then CEO of the company, explained that Infosys was strengthening its processes after the incident. Not too long after that, in 2004, another former employee Jennifer Griffith filed a sexual harassment suit against Phaneesh, but this time Infosys refused to make any contribution to the settlement. In a statement, Co-founder Narayana Murthy said, “I am glad that we stood by our objective of not contributing to the settlement of this sexual harassment case involving Phaneesh Murthy.”
Infosys’ disclosure stands out because even though the Supreme Court passed the landmark judgment in Vishaka vs State of Rajasthan case in 1993, drawing up guidelines and directing the Centre to enact laws to address workplace sexual harassment in 1993, it was not until 2013 that the POSH Act came into existence.
The enactment of the POSH Act ushered in a new era of workplace dynamics, extending to both the organised and unorganised sectors, including government, private and public organisations, NGOs, vocational, educational, entertainment, industrial, financial activities, educational institutes, sports institutions and stadiums. The Act mandates setting up of an Internal Complaints Committee (ICC), which includes external members, at least half of whom should be women. It also made it mandatory for companies to disclose POSH compliance as a part of their annual filings. Vishal Kedia, Trainer and Founder of compliance advisory company Complykaro, says though between 2013 and 2015 the adoption of the POSH Act across firms was low, the law played an important role by penalising non-compliance.
The number of sexual harassment complaints received by the Top five BSE companies by market value shows a year-on-year increase of 8.6 per cent between 2018/19 and 2019/20. While HDFC Bank saw a 108 per cent rise, Hindustan Unilever saw a fall of 25 per cent. Infosys again saw a 13 per cent dip and Tata Consultancy Services 1 per cent in the number of complaints filed. Interestingly, Reliance Industries, right from 2015/16 to date, registered zero complaints. “If a company is seeing a rise in the number of cases being filed, it also indicates better awareness and a strong compliance system and POSH mechanism,” says Kedia.
The last two years have been different though. “Post #MeToo it has become a different ball game because it is a risk to the reputation of the company, which was earlier not taken seriously,” Kedia adds.
The onus is on the ICC to recommend a penalty commensurate with the violation, while exercising options such as warning, monetary demotions, withholding of promotions and termination, among other penalties. Richa Mohanty Rao, Employment Law Partner at Cyril Amarchand Mangaldas, points out that while most ICC recommend penalties for sexual harassment as prescribed under the POSH Act /or service rules, occasionally, depending on the level and importance of the perpetrator in the company, organisations may have differing views on the manner of implementation of the penalty, fearing business impact.
POSH, definitely, has miles to go.