SUCHETA DALAL | 09/12/2013 0

Most of India has watched, and read with grim fascination, the two high-profile sexual assault complaints. One, against Tarun Tejpal, the controversial founder of Tehelka and another against a highly respected retired judge of the Supreme Court. But, in corporatecorridors, the non-stop coverage has triggered a different sort of worry. Senior officials are worried about the systems and procedures that need to be put in place, while experts in gender law say that the duties and obligations of employers are not yet crystal clear. Consequently, there is a sense of panic about being dragged into unanticipated situations; precautions are often veering to the other extreme.

Dr Hemant Morparia’s cartoons on the Tehelka issue seem exaggerated to evoke laughter (see alongside); but consider what is happening in the corporate world today.
•    A CEO pulls up a woman employee for walking away without completing an important presentation to be delivered the next day. The boss had to sit back and do it himself. When he pulls her up, she bursts into tears. His first reaction is to rush to open the cabin door so that the entire office is witness to the interaction.

•    A corporate group, with profits in excess of Rs1,000 crore, which already has ‘open office’ plan, has decided to install cameras in the cabins of every CEO and top executive as well as in open areas to avoid problems. It is an excessive reaction, but the group says ‘better safe than sorry’.

•     In another situation, when a company wanted to sack a top executive for sending lewd messages and pictures to an employee, it is the victim who pleaded against the sacking. “He has a family; I will never forgive myself for destroying their lives. All I wanted is for him to be reprimanded and told not to repeat the offence,” she said. But hysterical media coverage, following the Tehelka issue, suggests that there is little scope in the new rules for agreeing with the employee. What happens if the executive repeats the offence? Will it go against the employee for being ‘soft’ the first time? Will it make the employer culpable for failing to report the case? And worse, what happens if the employee resigns, joins another firm and repeats the offence?

•    What happens when companies are forced to sack a CEO or a senior executive overnight? Tarun Tejpal’s arrest has, most probably, destroyed Tehelka, but the impact can be considerable even on larger companies. The head of law and secretarial practice at a top Indian company tells me about the ‘Phaneesh Murthy exclusion’ that nobody talks about openly. While no insurance company says so upfront, she says, re-insurers refuse to cover sex-pests in the directors’ liability cover.

All these are real situations that are happening everyday across the world, including in media organisations; but gender-law experts seem to suggest that the new rules provide no scope for such leniency. Will this encourage women to report harassment, or make it difficult for women to even confide to wary colleagues about being harassed? Activists and legal experts agree that the bold, gutsy women, like the law intern who dared to write about the retired Supreme Court judge and the Tehelka journalist, are truly brave in reporting harassment and pushing the envelope for better laws and safer workplaces for women. But will the sacrifice eventually be worth their careers?

Madhuri Shajhir (name changed), a chartered accountant who has fought a gruelling six-year battle with KPMG, a top accounting firm, is completely disillusioned.  She was on the fast-track to a top post in the ‘big four’ firms; her career is finished, she has been mired in the most humiliating litigation and is battling a variety of dirty tricks unleashed by the firm and her ex-boss. That she is repeatedly praised for a dogged fight or that her boss was finally asked to leave the firm is cold comfort, when there is no sign of her case nearing any fair resolution. She asks:  “Why did I join this company believing its global code of conduct and what it said on the website?”

Madhuri’s experience raises another important question: Is the media guilty of misleading women into believing that complaints work? The media discusses high-profile cases and moves on. For every Tarun Tejpal, Gopal Kanda, Phaneesh Murthy and David Davidar, there are others that have been quietly settled, allowing the perpetrator to move to high-paying jobs. In fact, even women journalists refuse to expose sex-pest editors and prefer to move on, because they are fully aware of the legal delays, the humiliation of having the victim’s stories doubted and her motives questioned, the utter apathy, and often bias, of the National Commission for Women (NCW) and the legal system.

Many senior executives wonder what their legal obligations are, if a colleague confides in them about being harassed by a senior. For instance, one reaction was: “It is okay for the journalists in the Tehelka case to support their colleague and corroborate her version; but wouldn’t I be jeopardising a really well-paying job by sticking my neck out? Would I be forced to risk a much needed income and successful career, if the police initiates suo moto action and I am forced to testify?” After all, the attention and sensitive dealing in a case that attracts enormous media attention is completely missing in thousands of routinecomplaints that are filed everyday.

Advocate Mini Mathew, a Mumbai-based expert on sexual harassment and gender-related laws, agrees that there are no easy answers and that it is an evolving situation. More than 16 years after the path-breaking Vishaka judgement and in the aftermath of national outrage over the brutal Delhi gang rape last year, we saw the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 being passed by parliament and receiving presidential assent on 23 April 2013.

This Act has expanded the scope of sexual harassment, mandated the constitution of internal complaints committees (ICC) to look into complaints, spelt out the composition of ICCs and fixed a 90-day period for completion of inquiries and another 60 days to act on the ICC report. Employers who fail to comply with the Act will pay a fine of Rs50,000 for first-time offences and more in repeat cases. While this is extremely positive, there are also serious worries that some of the provisions are draconian and unworkable and will only be settled by test cases when there are actual complaints.

Meanwhile, HR and legal heads of companies are in a tizzy trying to find out what the new legislation mandate in terms of setting up an anti-sexual harassment committee, its composition and its terms of reference. They also want to know where to find experts who understand the various nuances of conducting such inquiries with sensitivity. Smaller companies that struggle to be profitable wonder if they can even afford such committees and whether they should hire women at all.

The good news is that companies are being forced to think about what is acceptable behaviour in the workplace and what is not. People come from different backgrounds in a male-dominated society; there is usually an effort required to sensitise employees and make them aware of the legal implications of their behaviour. The good news is that activists really believe that training and gender sensitisation works and organisations that are determined to provide a safe workplace for women do succeed in this objective by spelling out what constitutes appropriate and unacceptable behaviour and making it clear that there will be consequences of crossing the line, irrespective of who the person involved is.

Sucheta Dalal is the managing editor of Moneylife. She was awarded the Padma Shri in 2006 for her outstanding contribution to journalism. She can be reached at[email protected]


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