THE CUBICLE CODE © BETTMANN/CORBIS the Lok Sabha Recently Passed the Sexual Harassment Bill Safeguarding Women at the Workplace

GENDER RULES 2 The Crest Edition DRAWING THE LINE THE TIMES OF INDIA

K employers can be held vicariously liable for sexual harassment under The Equality Act, 2010. “Only if a UK employer can show U it took ‘all reasonable steps’ to prevent harassment in the workplace by its employees, can it avoid liability. But an important point is that the employer can only rely on this defence by showing that it took such steps before the actual harassment took place. So taking a pro-active approach to prevent harassment occurring is very important,” says Robin Jeffcott, UK-based partner and co-chair, labour and employment practice at global law firm Reed Smith. This framework also applies in the US — employers can be held vicariously liable for allowing sexual harassment to create a hostile work environment. “A hostile work environment is established where the employee is subject to unwelcome harassment based on her sex, the harassment is suffi- ciently severe or pervasive, a reasonable person un- THE CUBICLE CODE © BETTMANN/CORBIS The Lok Sabha recently passed the sexual harassment Bill safeguarding women at the workplace. But the Bill has one glaring loophole — it spares employer organizations from any monetary compensation liability for employee's misbehaviour

LUBNA KABLY legislation containing specific details was enacted. Most Let us take the scenario of sexual harassment in a TIMES INSIGHT GROUP developed countries have a formal law to deal with sexual large company (local complaint committees are to be harassment at the workplace,” says Vikram Shroff, head, set up at each location having ten or more workers). ccording to the National Crimes Record employment and labour laws, Nishith Desai Associates, Once a complaint is made to this complaint commit- Bureau, 8,570 cases of sexual harassment international legal counsellors. tee, after due inquiry the committee has to give its were reported last year. Not all of these Sexual harassment at work can be a prickly issue for recommendations to the company for taking action. dealt with sexual harassment at the women to deal with publicly. “In the initial stages, it Action taken would be based on the employment workplace — they could also include in- can even be so subtle that it leaves the woman employ- rules (which could include dismissal) and it can also A cidents like eve teasing on the roads. But ee wondering whether she is over-reacting. The fear of include granting monetary compensation by the of- RIGHTING A with up to 5.5 million educated women joining the being ridiculed, the need for job security or even the fender to the aggrieved woman employee. WRONG: Mysore workforce every year it can be assumed that cases of lack of awareness of their rights, all result in many cas- The monetary compensation is derived based on EARLY CRUSADE : Anita Hill became the face of a land- University sexual harassment at work would run into thousands. es going unreported,” explains a social worker. several factors, such as mental trauma caused, med- mark case in 1991. She alleged that US Supreme Court researcher M nominee Clarence Thomas had earlier made sexual Saritha who alleged In this context, the Sexual Harassment of Women at Compared to many other nations, women in the ical expenses incurred (including for psychiatric statements to her as her supervisor sexual Workplace (Prevention, Prohibition and Redressal Bill UK and US are less hesitant to seek justice. According treatment), and the income and financial status of harassment by zool- 2012) recently passed by the Lok Sabha, comes as a wel- to the statistics issued by UK’s Employment Tribunal the offender — based on which the compensation can ogy professor come piece of legislation though it is several decades be- Service, the number of sex discrimination cases dur- either be a lump-sum or payable in instalments. der similar circumstances would find the conduct Shivabasavaiah was proved right by a hind legislative developments in Western nations. The ing 2011-12 stood at 10,800. The US Equal Employ- At best, the company can deduct the monetary offensive, and where the employer knew or should Women’s complaint Bill is yet to be passed by the Rajya Sabha and given ment Opportunity Commission recorded 11,364 cases compensation from the salary of the offender; if this is have known of the harassment and failed to take panel Presidential assent, which means that it may be 2013 by of sexual harassment charges filed during 2011. not possible because the offender is absent or has been prompt, effective action to stop the harassment. If the time it is finalised. The Bill that is awaiting passage in Rajya Sabha is dismissed, the complaint committee can merely direct the harassment is committed by a supervisor, the The law recognises that sexual harassment at not entirely flawless. For instance, it provides that the offender to pay or send the matter to the district employer will be deemed vicariously liable. If, how- work can take varied forms ranging from physi- action can be taken against a woman who has made a officer who has the power to attach and sell the offend- ever, the harassing conduct is committed by a co- cal advances and demands for sexual favours false or malicious complaint. As a saving grace, the Bill er’s property. This makes the whole procedure very worker, the employee must show that the employer to offensive remarks, display of pornographic adds that a mere inability to substantiate a complaint or time consuming. was aware of the conduct. material and other kinds of unwelcome physi- provide adequate proof ‘need not’ attract such action. There is a further catch. “Under The Payment of “Where the employer's liability is based on ha- cal, verbal and non-verbal conduct. “This provision could have a dampening effect. Wages Act, 1936 (POWA), a list of authorised deduc- rassment alone without any tangible employment In 1997, the Supreme Court of India recog- The provisions should be further strengthened — for tions from wages is provided. In addition the total action taken against the employee, the employer nised the problem and while delivering its instance, the onus of proof could be on the alleged of- amount of deduction that an employer can make is re- can defend itself by proving that it exercised reason- judgement in the landmark Vishaka’s fender who wants to prove his innocence or there stricted to 50 per cent of the wages paid in any wage pe- able care to prevent harassment and correct such case, laid down guidelines that em- could be certain scenarios in which it shall be pre- riod. POWA provisions will need to be amended or behaviour but that the employee failed to take ad- ployer organisations have to follow. sumed that the complaint is genuine. The alleged of- waived to allow the employer to deduct the compensa- vantage of the employer's corrective measures,” ex- Employers were required to: prohib- fender should also have the opportunity to rebut. tion payable to the harassment victim,” explains Shroff. plains Sara Begley, US based partner and co-chair, it sexual harassment and include Also perhaps it would have been better for another “There are even limits prescribed when it comes labour and employment practice at global law firm such prohibition in the employees’ act, such as the Indian Penal Code, to deal with a ma- to attachment of property. Thus the law should pro- Reed Smith. rules of conduct; set up a complaint licious complaint, instead of making it part and par- vide that the company can also make a deduction out Reed Smith partners explain that employers can committee with majority of women cel of the proposed anti-sexual harassment Act,” says of the final settlement which includes retirement more readily avoid liability and provide their employ- members and headed preferably by a senior advocate Anand Grover. benefits payable to the offender,” suggests Grover. ees with a harassment free working environment by woman which would investigate all com- In most other countries, such as the UK or US, the Some terms in the Bill are loosely defined. UK’s taking various steps: implementing and updating plaints of sexual harassment; and initiate employer organisation can be, under certain circum- Equality Act, 2010, is clear that the sexual harassment comprehensive anti-harassment policies, holding disciplinary proceedings and possible stances, held vicariously liable for sexual harassment act must be viewed from the perspective of the victim. mandatory training regarding these policies and the criminal action against any offenders. by an employee. Suits filed can even be upwards of a A similar view must be taken in India. Last but not the implications of breaching them. Above all they need “These guidelines while mandatory million dollars. However, India Inc does not have to least, this Bill is not gender neutral and only covers ha- to take robust disciplinary action where the policy is were an interim measure, till a suitable bear any such liability. rassment to women. breached to show that it is being enforced. STAYING A STEP AHEAD © IMAGES.COM/CORBIS ees. Indian companies have been proactive and progressive about E-learning is emerging as a tool to create preventing instances of harassment at workplace From self-defence better awareness. “New employees, be they campus recruits or lateral hires, are made workshops to focus aware during orientation that there is zero- ndia Inc already has policies and time to reflect the growing awareness on discussion groups, leading tolerance towards sexual harassment (even processes —such as complaints com- various issues relating to workplace con- Indian companies have towards outsiders like customers and ven- mittee — to help it comply with the duct; they have adopted best global corpo- dors). From October 1, we will also be intro- I apex court guidelines on sexual harass- rate practices. “Periodic focus group discus- evolved several strategies ducing a mandatory e-learning course for all ment. With a specific Act around the corner, sions are held amongst cross sections within to deal with sexual employees in India. Every employee on join- such measures will be further strengthened. the organisation to understand its efficacy,” ing has to clear this e-learning course and Companies like MindTree, Marico and states Milind Sarwate, group CFO, Marico. harassment at work. They the access to their systems will be restricted GMR have gone a step further and adopted Genpact says it has fair employment also claim to enforce zero- depending on such clearance,” explains, gender-neutral policies. “Our policy on sexu- practices that guarantee a harassment free Ravi Shankar, Chief People Office, MindTree. al harassment applies to men and women; to workplace. “Complaints on sexual harass- tolerance for misbehaviour Some companies prefer to think out of like and opposite gender relationships; to re- ment are investigated by internal channels the box. “Women employees have also been lationships between supervisors and subor- and the findings put forth to a sexual harass- sues. “Further, HR representatives at vari- trained in self-defence workshops to pro- dinates and relationships among peers. GMR ment committee that gives its recommenda- ous levels have been assigned for grievance tect them against any unwanted incidents. Group employees, customers, vendors, con- tions. Investigation into any concern is handling and they help to resolve the mat- We have also partnered with Catalyst to sultants, and anyone else doing business in launched within two days of its receipt,” ters at the very onset,” says Ashu Malhotra, stay focussed on women empowerment at our premises must comply with this policy,” states Deepa Kapoor, VP, Genpact. executive VP, HR. Biocon HR head Ravi Das- work,” states Manish Choudhary, MD, Pit- says a GMR spokesperson. Tulip Telecom has both formal and infor- gupta says that his company plans to hold ney Bowes Inc. Marico’s code of conduct has evolved over mal committees to address harassment is- special training sessions to sensitise employ- — LUBNA KABLY