An Expert’s Advice for Respondents of Sexual Harassment Complaints
In all my training and learning experience, I was yet to come across the Rights of the Respondent (person against whom a complaint of sexual harassment is made) beyond a cursory mention of Involved Parties Rights & Duties which in no way was sufficient to prepare the Respondent for the Inquiry and exercise his Rights within the scope of the Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act and Rules 2013 (“LAW”).
This is not at all surprising considering we (POSH Trainers, Consultants, Lawyers etc) are mostly preoccupied with the Rights of the Complainant (woman who files a complaint of sexual harassment against the Respondent) to ensure the Complainant, who is usually also the Aggrieved Woman and has undergone sexual harassment, mental stress, maybe trauma, is guided sensitively and appropriately without further violating her boundaries, affronting her Respect and treading on her Rights. We conduct training of the Internal Committee Members on the Law and its provisions, how to conduct an inquiry, and all aspects of their Roles and Responsibilities, without focusing exclusively on sensitization of Internal Committee on what the Respondent is likely to be going through, in terms of mental stress and stigmatization, and what we can do to make sure Respondent is made aware of his Rights and gets expert guidance on how to file his Response most effectively for his defense.
Hence, attending a live seminar conducted by Antony Alex, CEO and Co-Founder of Rainmaker with Trideep Pais, an advocate who has been litigating for past twenty years in the field of criminal and civil law, and has represented both Complainants and Respondents in cases of sexual harassment, was very informative, insightful, and did justice to both involved parties in terms of the knowledge sharing, but especially to Respondents who might find themselves lacking the know-how of how to file an effective Response to a complaint of sexual harassment that has been made against them. Here, I have tried to share some of the aspects of complaints against (male) Respondents and their response with the readers in the form of questions and answers.
· If a (male) senior shouts at a (female) subordinate in front of others, is this sexual harassment? Can she file a complaint with Internal Committee?
There is a tendency for people to think that the Complainant can take advantage of the gender difference between herself and her senior and lodge a complaint with the Internal Committee alleging sexual harassment. But if the shouting or the alleged behavior has nothing to do with Section 2 (n), that means it is not of sexual nature, then it is not sexual harassment. And filing a complaint with Internal Committee will only complicate matters unnecessarily. The only caveat is, if there was a prior incident where sexual favors were asked by the senior and denied by the subordinate, then this would amount to retaliation and hostile work environment for herwhich is also to be treated as sexual harassment. If there is no sexual connotation, then however rude or obnoxious the behavior is, it cannot be termed as sexual harassment. There is a recent Case-Judgement also to support this, dated 17th February 2020 by Madras High Court on definition of Employer, Role of LC and solitary allegation of intemperate language against a female employee. This decision can be read here in detail. (https://www.livelaw.in/pdf_upload/pdf_upload-370716.pdf)
· Should a Respondent hire a lawyer?
Yes, he should if he can afford it. This is not to say that he can hire a lawyer to represent him before the Internal Committee, which is prohibited by the Law. But he can and should hire a lawyer to guide him in filing an effective response and also specifically guide him in various aspects of the Law which can be beneficial to him. Also, if he cannot afford a lawyer, he can make an application for legal-aid to his organization and they may be able to provide him with some minimum level of legal-aid. But the legal-aid/counsel provided by the organization should not have anything to do with the organization, so as to avoid any conflict of interest. Trideep also believes it is important that there is one lawyer in the Internal Committee. In my humble opinion, there could be a lawyer who does not know the day to day functioning of this Law (including the Case-Judgments, experience and expertise in handling inquiries), hence it is important that the External Member should be an expert in this Law, whether a lawyer or not.
· Why should Respondent take this complaint of sexual harassment seriously if he hasn’t committed any offence? Should he simply baldly deny everything and let the Internal Committee find the truth?
No. Even if the Respondent believes that the allegations are completely and utterly false, the fact that there is a complaint of sexual harassment against him, and his belief in a safe workplace for women, should make him take the complaint seriously and make every effort to prepare a suitable response and co-operate with the process of inquiry to the best of his ability. One should keep in mind that the Internal Committee is doing this inquiry over and above their day job, and this may not be something they have done many times before. It could even be their first inquiry. They are not in this as professionals. So, it is imperative that the Respondent understands the need to defend his case, and to make every effort to do so within the Statute and its provisions. He will be helping himself immensely by aiding the Committee to probe into the allegations. It may also be that he himself was not well aware of the Law and what is sexual harassment definition-ally. Therefore, while taking the complaint seriously, he also gets to learn the Law and its definitions, and how he may have inadvertently broken the Law by unknowingly invading the personal boundaries of the Complainant. He may have made her feel sexually harassed by simply behaving in an unwelcome manner, for ex. by asking inappropriate questions about her personal life or making some offensive jokes with sexual meanings or passing some comments about her body and clothes that had a sexual connotation. The bottom line is, it doesn’t matter whether Respondent thinks the complaint is completely uncalled for; he has to cooperate and help the Internal Committee in bringing out the truth. Therefore, he should do everything in his capacity to “submit a detailed and comprehensive reply”. Whether complaint is serious or frivolous and what are the merits of the case is for the Internal Committee to decide. But Respondent should not take it lightly.
· Does a Respondent have a Right to ask the Internal Committee for documents which may be helpful to him in filing his response?
Yes, absolutely. As per Section 11 (3) (a) (b), the Internal Committee has powers to require the production and discovery of documents; and the Respondent is well within his Rights to “make an application to the Internal Committee urging them to exercise this power”. On receiving the complaint from the Internal Committee, he should not prepare his response by writing out the reply immediately, but by assessing what he needs in order to write an effective response. This may include some documents which may be in the possession of Complainant, HR, mobile service provider, hotel, off-site, etc. These may be CDR (Call detail records), CCTV footage, attendance records, e-communication or anything else that can help his case. As long as he can convey a valid reason for the requisitioning of those documents, and the Internal Committee sees no irrelevance/mala fide intent in his request, I think the Internal Committee should make every effort to provide those documents to him. And these documents may even help the Committee to get to the bottom of the truth. The parties are better-positioned than the Committee members to know which documents may help strengthen their case hence, both parties should exercise this Right. This application to requisition documents is also called Discovery Application.
Trideep, during the course of the conversation, repeatedly emphasized that the “Internal Committee should be “inquisitorial in nature, and not adversarial”. Let’s take an ex. where Respondent is asking for more time to file his reply. (As per the Law, he has to file his reply within 10 working days). The respondent can write to the Internal Committee requesting for more time as he is waiting for the requisitioned documents, and seek their leave to give him 1-2 extra days to submit his reply. The Committee can in turn write to the Respondent saying he should file the rest of the reply which does not hinge on the documents that he is waiting for, and after receiving those documents, he can submit an additional note. Of course, the delay should not be indefinite, but if the reasons for delay are genuine and valid, the Internal Committee can grant a few extra days by way of Condonation of Delay. This also applies to the Complainant who has to submit her complaint within 3 months of the date of incident/last incident, and an additional 3 months can be given by the Internal Committee if they are satisfied that the reason for not making the complaint earlier was valid. This Limitation Period of 3 months and additional 3 months are also to be viewed more rationally than hyper-technically. A delay of 1-2 days with valid reason (to be recorded in writing) is to be condoned by the Internal Committee.
But Trideep does not think that an inquiry that goes beyond the stipulated 90-day period will be valid (upheld in court). The 90-day period is “sufficient to complete the inquiry”, according to Trideep, failing which, the inquiry will be void. Since there is no Case-Judgement on this issue, many organizations working in this domain might professionally differ. I personally have come across inquiries which have stretched beyond the time limit stipulated by the Law, without creating much concern with the lawyers/ experts who were part of the inquiry committee.
Would be happy to read the views of our readers on this bilateral issue.
For PoSH training for employees, check out our PoSH e-module, WorkSafe DELTA trailer today. https://www.youtube.com/watch?v=3cVxAPKkGQ4
Author: Sumali Nagarajan
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