Navigating Biases: Fostering Fairness in PoSH Investigations

“A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes (“irrelevant grounds”)…A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.” The Bangalore Principles of Judicial Conduct, 2002

The human mind is a complex web of experiences that shape our perception. Every judgment we make is influenced by how we view a situation. Bias, a subconscious yet ingrained prejudice, is an inherent part of individual thought processes. This bias becomes particularly concerning when it infiltrates the pursuit of justice, particularly in protecting workplaces from sexual harassment.

Imagine a survivor of sexual harassment, traumatized, yet courageous, seeking recourse with the Internal Committee (IC), only to face ridicule and bias from the outset. In such a scenario, bias not only obstructs justice but also shatters her faith in the system. This blog delves into a critical issue: can the very process designed to deliver justice succumb to bias itself?

Understanding Bias

Before we explore the biases that IC members can fall prey to, it is crucial to understand the term itself. Bias is commonly defined as a predisposition or prejudice in favor of or against a particular person or group, often resulting in unfair treatment.

Human beings are inherently biased creatures. We develop biases from a young age, often influenced by our upbringing – whether cultural practices, religion, or life circumstances. Our biases are shaped by numerous experiences throughout our lives. Interestingly, individuals may or may not be conscious of the biases they hold.

While biases are innate to humans, certain biases can lead to detrimental outcomes if left unchecked and unrecognized. Therefore, it is crucial to engage in critical self-evaluation of our judgments and acknowledge our blind spots to prevent stereotyping and acting upon harmful prejudices.

The Many Faces of Bias

Bias can be broadly categorized into two main types – non-conscious or unconscious and conscious. However, both encompass multiple subtypes:

Non-conscious Bias

Also known as implicit bias, encompasses beliefs and attitudes that operate beyond a person’s conscious awareness and control. While lacking malicious intent, they are challenging to recognize and can significantly influence one’s actions without conscious realization. What could these biases look like for an IC member?

1. Gender bias:
When a member of the IC shows preference for one gender over another due to stereotypes.
◉ For example: When Maya, an executive assistant, raises a complaint about a coworker’s constant suggestive comments, she is dismissed with, “Come on, it was just a compliment! Women don’t have to be so sensitive.” This biased response compels women to endure unwelcome advances.

2. Blaming either parties to the complaint:
This could entail questioning the validity of the complaint or insinuating that either party may have contributed to a situation of sexual harassment in the workplace.
◉ For example: Suggesting, “Perhaps if she had been more cautious in her interactions, this situation wouldn’t have arisen.” This places responsibility on the Complainant’s behavior rather than addressing the inappropriate actions of the Respondent. Or, suggesting that a respondent comes from a questionable socioeconomic background, implying therefore that they are more likely to engage in inappropriate behavior.

3. Stereotypes:
When a situation is judged on certain preconceived notions.
◉ For example: Assuming consent was provided, based on the notion that a woman belongs to a particular community and is therefore sexually active. This erroneous assumption denies a woman her fundamental right to decide on consent autonomously. Or, assuming that the respondent being a young graduate, is likely to engage in impulsive and inappropriate behavior that is expected of a ‘younger’ generation.

Conscious Bias

Also referred to as explicit bias, denotes a type of bias that one is consciously aware of and acts upon intentionally. These are prejudices that can lead to harming others or exhibiting exclusionary behavior. What could these biases look like for a member of the IC?

1. Conflict of Interest:
When an IC member has a personal connection to either party involved in the complaint, potentially influencing their judgment in the matter.
◉ For example: If an internal committee member has had a romantic relationship with either party, they may be more inclined to take a biased or one-sided view of the case at hand.

2. Power Dynamics:
When unequal authority skews an IC member’s perspective, particularly when the Respondent holds a supervisory position.
◉ For example: Granting undue credibility to the Respondent’s account solely because of their influential position within the organization.

Other Types of Bias

1. Confirmation bias:
Focusing on evidence that confirms a preconceived notion about either of the parties.
◉ For example: If the IC members feel that the respondent has a reputation of being flirtatious due to a past incident, they may end up overlooking other facts that contradict this notion, in the case at hand.

2. Social Desirability bias:
Giving weightage to the statement of one party due to their popularity or charisma.

3. Attribution bias:
The tendency to attribute certain behaviors or events to internal characteristics or traits of individuals rather than considering external factors or circumstances.
◉ For example: Assuming that the accused was ‘just joking’ or ‘they didn’t mean it’.

Biased Statements

While the PoSH Law mandates the fair investigation of cases of sexual harassment of women in the workplace, bias can compromise this process. Here are several examples of biased statements that IC members might make during an inquiry:

◉ “Why the delay? If it was serious, you wouldn’t have waited.”
◉ “I’ve known him for years. He wouldn’t do something like that.”
◉ “I can’t imagine them doing this. There must be another explanation.”
◉ “Her clothing might have been inviting attention.”
◉ “Could you have misinterpreted their intentions?”
◉ “It’s just he-said-she-said.”
◉ “They’re a senior manager. Why would they risk their career?”
◉ “I can’t relate without experiencing it myself.”
◉ “Let’s not ruin someone’s reputation over a simple misunderstanding.”
◉ “Are you sure it was them? They’re valuable to the company.”
◉ “Maybe they were just being friendly.”
◉ “Let’s handle this internally. We don’t want to attract negative attention for the company.”

Bias: Learnings from the Judiciary

Courts in India have often pointed out biases amongst IC members in PoSH proceedings. One such case is that of Dr. M. Rajendran vs. M. Daisyrani, involving a complaint of sexual harassment filed by a female employee against the Dean and Medical Superintendent of the Medical College and Hospital, where the Madras High Court underscored the paramount significance of an unbiased investigation in such proceedings. The female employee contested the impartiality of the Internal Committee established by the review petitioner, asserting that its members, by virtue of their subordinate positions to the Dean, were incapable of conducting an objective inquiry into the allegations leveled against him. The Court concurred, recognizing the inherent conflict of interest embedded within such a configuration. To safeguard a just and equitable outcome for both parties, the Court ruled in favor of the female employee, mandating the formation of an independent committee untainted by any potential bias. This decision serves to buttress the legal principle that impartiality constitutes a fundamental pillar of investigations into sexual harassment, thereby protecting the rights of both the complainant and the respondent.

In Aparna Bhat & Ors. vs. State of Madhya Pradesh & Anr., the Supreme Court examined the detrimental precedents set by Courts in granting bail for sexual offenses against women, highlighting the adverse effects of gender prejudices on justice. The Court addressed offenses typically regarded as ‘minor’- such as stalking, eve-teasing, and various forms of verbal and physical assault and harassment – emphasizing that these behaviors, though often romanticized, are unequivocally criminal. Stereotypes like “boys will be boys,” have a lasting and pernicious impact on survivors of these sexual offenses. The Court underscored the judiciary’s responsibility to ensure survivors can trust in their impartiality and neutrality. Judicial stereotyping, where judges attribute certain characteristics or roles to individuals based solely on their membership in a particular social group without questioning these assumptions, can exclude personalized consideration of an individual’s actual circumstances, needs, or abilities, thereby causing harm.

Drawing from these observations, adjudicators bear a crucial responsibility to base their decisions on the law and the facts presented in evidence, avoiding any biased behavior.

Parting Thoughts: Filtering out Biases

While biases are natural, it is crucial for IC members to acknowledge and address their own biases to ensure fair proceedings, making it fundamental to upholding the principles of natural justice. Employers can help combat biases by appointing diverse committee members and providing comprehensive training. Such training helps IC members understand the impact of biases on investigations and equips them with the skills to analyze evidence objectively, free from preconceived notions.