This blog takes a real-life example and dissects it in ~10 different ways. 

Many employees and PoSH Committee Members know and recognize Sexual Harassment when they see it, or so they think. One can check the definition of Sexual Harassment on the phone, attend the awareness sessions conducted in your organization (if your organization is compliant with the PoSH Law and conducting such sessions), and even read blogs on what is and what is not Sexual Harassment. Nevertheless, just like there is no substitute to facing it yourself and being confused about what action to take, there is no parallel to suffering Sexual Harassment of low intensity and being baffled with the doubt, "Is that even Sexual Harassment?"

(The ‘aggrieved woman’ in this story had attended an Employee Awareness Session and knew what she was facing was indeed Sexual Harassment. Her dilemma was different. Read on to find out.

It’s the protagonist (harasser) who had not attended an Awareness Session in the last two years. No wonder he had to pay a steep price…)

Even PoSH Committee Members Need to Debate?

PoSH Committee Members (IC) often come across cases where Sexual Harassment is so borderline, so disputable, that they debate amongst themselves, asking that consequential question, "Is that even Sexual Harassment?"

If the answer to that question is not a resounding Yes or a resounding No, the question is open for debate. But before the PoSH Committee Members debate with each other, they need to ask themselves. Am I being judgmental here? Am I biased to either party? Why do I think what I think? Is it because of the context in which the incident happened?

Even context depends on from whose perspective you are looking.

Knowledge Nugget #1: Who is a Reasonable Person in the Court of law?

This ambiguity is why courts use the term 'Reasonable Person', a hypothetical person in society who exercises average care, skill, and judgment in conduct and serves as a comparative standard for determining liability. In simple words, the courts ask the Reasonable Person if the incident or statement can be called Sexual Harassment.

Let's consider swear words like "fuck" and "bitch", which are pretty standard lingo with today's Gen Z

If an employee uses foul language; swear words like asshole, bitch, fuck, while conversing with peers, i.e., other employees who are at par in position, but not calling them an asshole, bitch etc, would it be seen as Sexual Harassment?

Often, I hear employees say post the training session, off-record, "But this is how we talk. Shitty talks are fun and help us enjoy our work, especially since the hours are grilling and the night shifts long. We are not cussing or harassing anyone; in fact, everyone is participating."

So, if the answer is, "No, this is not Sexual Harassment unless spoken at someone in an abusive way, and done repeatedly", then here's a reminder. This "shitty talk" happened at the workplace, and the PoSH law applies to any workplace.

Knowledge Nugget #2: What the PoSH Committee Members decide today may have to stand the test of Courts tomorrow.

This high standard expectation is why the PoSH Committee Members usually rely on the External Member, a neutral third party, an expert in this field, and who knows the legalities well.

Shitty Talk is Fun and a Stress Buster

Coming back to the same question, if the answer is still No, and "Of course, it's a workplace, but all work and no fun can lead to stress," here's another twist. Some employees are ladies.

Now, does this impact your answer?

Ladies are Equally Bad

If the answer is still No for some of you, and "The 'ladies' are equally guilty of bad language; what's gender got to do with it?" then here's another tweak to the scene. Some of the other employees are subordinates to this employee (who speaks the foul language).

Does that make a difference? We will consider that in a moment.

Does Hindi make foul language sound worse?

If your answer continues to be a No, how about this angle; Some of the foul words are in Hindi also, like ‘gaand-marte rahenge’, ‘ma-behen kardi,’ & ‘behen-choth.’

Are some of you wondering, "So what if it's in Hindi?" And if your likely retort is, "If you are uncomfortable, say it to him. Why are you going and making a complaint (to the IC)?"

A Complaint under the PoSH Law is a Big Deal

As per the PoSH Law, once a complaint is filed with the PoSH Committee Members, the wheels are set in motion for a probable Inquiry.

Of course, instead of an Inquiry, Conciliation could also take place. Still, if a complaint of Sexual Harassment is lodged, it is usually a big deal for all persons involved, as oft times, the results could lead to someone's termination.

Speak Now or forever hold your Silence

If you think no one has the right to complain if they have not objected to this language at the time of the incidents, here's a thought-provoking scenario.

Embarrassing a Newbie into Silence

What if this employee is very sharp in his understanding of the technicalities of work, and the moment the 'aggrieved woman' tells him his language may be unwelcome (in such delicate words), he starts asking technical questions to embarrass her (possibly a new entrant) into silence?

Did that give you some food for thought?

Friends use lousy language in schools and colleges; we all know that. One may say it depends on what context the alleged harasser spoke the swear words. Was it spoken to someone in particular in an abusive and insulting way or in general while having a friendly conversation with another colleague?

The former would be tantamount to Sexual Harassment, especially if it's pervasive, but what if it's the latter?

And if the recipient does not mind, is it still a problem?

Can a Bystander/Third Person Complain?

The problem could be that the recipient is friends with this employee and hence does not think of making complaints against him. But a third female colleague is sitting nearby and decides to complain to the PoSH Committee. The statement is the same, and the context is the same; the only difference is that instead of the recipient, the colleague in the vicinity felt offended and decided to complain.

You may pose an astute question; Is the colleague sitting nearby, on friendly or inimical terms, with this employee speaking foul language?

One would jump to assume inimical terms. Here's a shocker; They have always been on friendly terms and still are. Still, the complaint has been filed.

It would be fair and reasonable to accept the complaint and, after due Inquiry, following principles of natural justice, decide if the employee speaking the foul language is guilty of Sexual Harassment or not.

Alleged Harasser is in everyone's good books

Have you noticed I am refraining from using "abusing?" Abusive means habitually offending and belittling others. But here, the context shows that the employee was not 'abusing' anyone; he was on friendly terms with most people who worked with him. What if everyone in the organization had good things to say about him? Does that make him not guilty of Sexual Harassment?

Now let us pick up where we left off earlier.

What if the Complainant is a lady who is also a subordinate to our employee (manager) speaking foul language? 

And she never dared to raise her voice on his face about his language, understandably so. Being her manager, he has power over her. He can write her off. He can give her a poor appraisal, not sanction her leave, provide her night shifts even when requested for day shifts, and what have you.

No one knows what he could do.

But everyone might agree that the fears can be innumerable.

The harassing employee needs to be adjudged guilty of Sexual Harassment and be reprimanded.

For what?

For the same friendly conversations or giving the lady complainant night shifts?

When she signed her contract with this organization, the contract mentioned there would be night shifts depending on the demand. Then how does she prove he is retaliating because she went and spoke to the HR/IC about his language?

Knowledge Nugget #3: To prevent potential Retaliation by the Respondent, the PoSH Committee Members must recommend to HR to change the Reporting Line as soon as there is a Complaint against a manager by a subordinate.

What does the Management think? 

From their perspective, losing a highly productive manager just because he was loose with his tongue may be a considerable cost.

"Isn't it better to terminate the Complainant who was on probation, as it is, and not even a great performer? That would be completely legal too."

Knowledge Nugget #4: This is precisely why a Complainant on probation should not be terminated soon after she has made a complaint of Sexual Harassment, and until the Inquiry is over, and her termination should not even depend on that she made a Complaint.

Does your Management do the following?

The more important question to ask would be, is the Management ready to support the PoSH Committee Members without interfering in the Inquiry process and repeatedly asking what the update is on the Inquiry proceedings?

The important soul-searching question the Complainant might be asking herself after filing the complaint of Sexual Harassment against the manager;

If my allegation leads to his termination, have I done the right thing? 

Can I take back my complaint and not have to face repercussions? Or should I stick to my stand, as after all, this behavior, if not nipped in the bud, could lead to more embarrassing moments for me, where the manager uses words like 'gaand' and 'ma-behen' and 'behen-choth', and I have to keep a smile on my face, lest he should ask me technical questions which throw me off?

Coming back to our manager who speaks the foul language, is he guilty of Sexual Harassment?

But everyone knows he never made a sexual remark to anyone. On the other hand, he is quite helpful. Everyone whom the PoSH Committee Members called during the Inquiry spoke good things about him.

Now, does that turn the tables again?

Does Smoking make a person 'Bad?'

Does being helpful make him a good person who has a bad habit like smoking? After all, a person who smokes also exposes people around him to that smoke. That does not make him a bad person. He may be a very good person, whom you look up to. But can you look up to this manager who is sexually harassing people around him?

But wait a minute; Is that even Sexual Harassment?

What do you, the Reasonable Person, think?

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Post Script: The Respondent in this story was not terminated. His offence was not of high-intensity. The IC recommended an Apology Letter and Reprimanded him for his use of foul language. A proportionate Punishment under the PoSH Law.

Then how did he pay a steep price?

He was doing very well in the organization, but he quit even before the IC Report was ready!

Author: Sumali Nagarajan

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