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PREVENTION OF RETALIATORY ACTIONS AGAINST COMPLAINANTS OR WITNESSES POST-REPORTING OF SEXUAL HARASSMENT COMPLAINTS AT WORKPLACE.
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PREVENTION OF RETALIATORY ACTIONS
AGAINST COMPLAINANTS OR WITNESSES POST-REPORTING OF SEXUAL
HARASSMENT COMPLAINTS AT WORKPLACE.
AUTHORED
BY - ANUSHA C KOTI
Introduction
India is exponentially advancing towards
developmental goals. The presence of women can be seen in every sector
of the work force and about 39 million women are
working in Indiai. But, in this patriarchal
society where the ideology of male superiority is strong, emphasizing
dominance, physical strength, and male honor, sexual violence in any form
becomes an opted mode of suppressing women (Vandana 230). One such form of suppression is sexual harassment at the workplace
which is extensively addressed in many academic papers and books. However, the
suppression of victims post-reporting by retaliatory actions such as demotion,
isolation from company activities, illegal transfers, etc., which are not in
sexual nature is not delved deeply into as an existing problem that is harming
the safety in the workplace and making women suffer silently. This aspect of
the victimization of women post-reporting shall be covered extensively in my
paper.
Linda Wirth states, “Sexual harassment is not a sexual lust, but
it is a form of oppression, victimization, and intimidation based on the
relationship of power and authority” (140). The Victims of Sexual harassment face harmful effects, due to the power dynamics existing in the hands of the
perpetrator. The accused acts beyond harassing a woman, making her feel vulnerable and believe that her job is extremely difficult, further making her hesitant to report
the matters to the authorities. The victimization strikes at theeconomic self-sufficiency of
women, disrupting their earning capacity which negatively impacts other working
women by forcing them to think twice before they report the sexual harassment complaint. For every woman who raises an outcry,
there are a hundred others who sufferSexual Harassment at the workplace in
silencewithout reporting due to the fear of retaliation. The paper shall focus
on those ‘silent’ women from various sectors within India who face retaliatory
actions post- reportingand suggest measures
to be undertaken to protect
the complainants or witnesses from being victimized or
treated unfairlybecause ‘Unnamed should not
be mistaken for the non-existence and this silence speaks of pain and
degradation’ and not of absence(Mackinnon 353)ii
The paper is designed to address the loophole in
the Prevention of Sexual Harassment at Workplace Act, 2013 for protecting the
complainants or witnesses post-reportingwhich
is resulting in underreporting of Sexual Harassment complaints. Towards analyzingthe necessity of protecting
victims, the paper shall first, establish the
existence of retaliatory actions against complainants or witnesses post-reporting and the need forsocial and
organizational support forvictims, relying on the survey reports and documented
instances taken from already established empirical studies. Secondly, analyse
the judicial pronouncements dealing with retaliatory actions against
complainants and drawbacks in the existing legal framework. Thirdly, conclude by suggesting measures
to be undertaken by the organization
to protect the complainants or witnesses from being victimized, which
shall encourage women to report sexual harassment complaints and increase the
number of women in the workforce by providing a safe working environment.
Analyzing the existence of victimization
There is neither any sector nor any class of
working women left untouched by the evil of Sexual
Harassment in the workplace.
The fear of reporting sexual harassment is more in women occupying lower job
sis a myth. The women
holding high-profile jobs though having multiple equal
opportunities do not complain about it due to fear of the consequences to be
faced by her from the authority. According to the Report Garimaiii, 68.9% of the women did not complain to the internal
complaints committee or
management due to the fear of retaliation, and subsequent repercussions. Fifty
percent of the women quit their job post-inquiry, due to the victimization
faced by them (16). Therefore, the fear of retaliatory actions is one of the
reasons for underreporting of sexual harassment inthe workplace.
Instances explaining the existence
of retaliatory actions
against the complainant
The moment
a victim of sexual harassment attempts to ‘public’
her ‘private’ anguish, she is labeled as a bad woman and becomes an easy target
of harassers, and is subjected to humiliation publicly
(Gupta 9). Studying the employer’s response to the reported complaints, Anagha Sarpotdar found two major things, firstly,
complaining to the employer was women’s last choice and was resorted to
when their workplace environment was becoming intimidating and secondly,
retaliation from the employer after complaining, in the form of termination,
demotion, etc., was common in all the responses received during the study (27). In a study about nurses and nursing
students Meena Ganapathy, found women do nothing and pretend as if they have
not witnessed, felt, or experienced the situation because
many times victims
are in regular contact
with perpetrators and they fear consequences faced post-reporting (140). According to the study conducted by Anuj Thomas,
about eighty percent
of the participants' key reason for sexual harassment incidents at institutions was the result of lack of courage, fear of
disgrace, and social isolation faced by them after complaining against the
abuser. In an academic community, when a woman is harassed, there can be a
concern to come forward and lodge a complaint, due to the fear of reputation,
fear of retaliation, or any repercussions on one’s career (320). Further, the
woman on probation will find it more difficult to report the complaint (Kapur
28). This is because a woman who is new to the workforce might be worried about
being perceived negatively or face biases if reported. According to the study
conducted by Paramita Chaudhuri despite the grievance mechanism in place, there
exists the power dynamics against the women if she makes the formal report
(99). Chaudhuri also in a separate study about experiences of sexual harassment
of women health workers in four hospitals of Kolkata, found that 50 out of
77women recognized fear of dismissal, loss of income, blocking of promotion, and
victimization in work assignments such as inconvenient duty hours,as the
factors underlying for non-action against the perpetrator (222).Whenever women
report sexual harassment, it causes a division in the workplace where they will
be isolated, and bullied and the rumour of such harassment will just escalate
the situation and harm the working conditions of the victim. Many of the
victims tend to leave the job as it becomes difficult to work in a hostile
environment. The effects of sexual harassment will follow her to the next job
because it will affect her work record and references (Bolland 48). The victims
go through problems, irrespective of whether they respond actively or
passively, because, if the victim complains, the perpetrator can become
antagonistic or the victim may obtain a lower performance rating; and if they do not complain, they must go through the emotional and mental trauma (Salin,
et al. 2). Therefore, these instances show that the fear of consequences such
as demotion, low ratings, isolation
from company activities, sudden transfers, increase in the working hours, salary reduction
or termination of employment, with lack
of social and organizational support, is discouraging women to take a
step towards reporting the sexual harassment and this has a bad impact on other
women who are subjected to sexual harassment and may be ready to report. The bitter experience pre- and post-reporting harms
their mental health and lowers confidence and victims tend to think all men
are rude and vulgar (Bularzik 124).
DoWomen Get the Social Support They Need from Their Peers?
The above
instances prove that women are hesitant to report due to the fear of
consequences, but when a woman picks up the courage to report the harassment,
support, and help at the workplace are crucial. Social support acts as a
catalyst to encourage the tormented woman to report sexual harassment against
the perpetrator (Shagal and Dang 54).
Support acts as a strength
to the victim, which helps her to report the case rather than fighting
alone. But such support is not always forth coming. Some of the women interviewed in the survey for Saheli Reportiv
said that, when the victim revealed about the sexual harassment
she was not supported to report, but rather was isolated and asked to remain
silent about such matters. Punam Shagal and Aastha Dang, have a similar finding
for social support, that is female colleagues
advised the victims
not to bring their experiences to authority. Their concern for “nothing will come out of complaining”
contrasted with the support received
from male colleagues (52). Further,57.8%v of the victims who reported sexual harassment
underwent abuse, and bullying by their colleagues. On the other hand, the
Saheli report, also revealed that some of the victims received support from
their colleagues in the workplace which helped them to successfully persuade
the case of harassment done by their superiors. To quote a few, in a government hospital a nurse was supported by her
colleagues to report against the superior doctor who harassed her in the ICU, the peers in an international-based
bank fully supported the complaint of sexual harassment made by employees
against the management.
One of the reasons
behind not supporting the victim of sexual harassment is the fear of severe
consequences from the authorities such as a threat to jobs, demotion, transfers, and jeopardizing their
relationship with other peers, etc., Therefore, the victimization is extended
to those who support victims and retaliatory actions are not only limited to the victims
post-reporting but are also extended to the witnesses and woman
colleagues who support her.
This creates a situation
where all women
in the workplace are being placed in a vulnerable position,
even if the women are willing to help the victims the fear of retaliatory actions
will make them remain
silent.
The previous
paragraphs portray that sexual harassment in the workplace is not
merely a physical attraction but is more about the misuse of authority (Agrawat
and Haridas 271). Women apart from becoming independent and fighting against
the male-dominated work place to establish their status must also put
their dignity and respect at stake, which is considered a negative consequence
of women entering the workforce, (Bhaya 1253). Respect for women is one of the
non-negotiable demands of human dignity. Sexual harassment
at the workplace is not only questioning their dignity but also violating their
fundamental and human rights because it violates the principle of equal
treatment for men and women at work (Bhasin 70). Also, the tussle between the
woman’s dignity and her being the breadwinner of the family makes the situation even worse (Choudary
and Kaithwas). Usually,
working women with the
poor financial conditions struggle more between the psychological pressure on
one hand and economic independence on the other. Even after facing all such traumatic acts,
if the victim wants to continue the job, victimization will create a hostile
environment which makes her constructively discharged from the job (Bolland 49). Due to this, working
woman lose their self-confidence, are not sure about their work, and do not feel safe at their workplace, which further affects
the basic motive of seeking employment and becoming
independent. Therefore, even if complaining about
sexual harassment will uphold their self-respect, many a time due to fear of
consequences, victims think complaining is more injurious than remaining silent
(Mackinnon, Directions 235)vi.
Analyzing the judicial
pronouncements dealing with retaliatory actions against complainants.
In the case of Utkal Machinery
Ltd. Vs. Patnaikvii, the respondent entered services with the appellants and
was terminated from the job during the probation period. The respondent alleged
that her termination was mala fide, illegal,
and an act of victimization for
complaining about the sexual harassment against the manager. The contention made by the appellate was that the termination was due to the unsatisfactory discharge
of work by the respondent. However, the management failed to produce
evidence for the unsatisfactory work of the respondent. Therefore, the Hon’ble Supreme Court upholding the award of the Industrial Tribunal (Orissa), set
aside the order of discharge of respondent during the probation period and held such order to be punitive.
In the case of
M/S. Saudi Arabian Airlines vs Mrs.
Shehnaz Mudbhatkal & Anotherviii, the petitioner is a foreign
Airline company incorporated under the laws of Saudi Arabia and has offices at various places all over the world including Mumbai.
The respondent joined the service of the petitioner as Secretary to the Station
Manager. She was later promoted to ‘Customer Service
Agent’ for carrying
out her job with the utmost
satisfaction. Further, Abdul Allah Bahrani took charge as Station Manager and a
series of unfortunate events started to commence in the work-life of
respondent. Bahrani made repeated demands asking the respondent to come out
with him for lunch and dinner, which she politely refused. Then he started
making indecent and objectionable personal remarks, asking her to give the
detailed method of family planning, or talking purely
personal matters which had no
connection with the work. The respondent politely asked Bahrani, that she had
no interest in having any personal relationship with him. This provoked Bahrani and he started harassing the respondent. Further, the respondent
was due for promotion to the post of
“Lead Customer Services Agent,” but the same was denied and given to her
junior. The improper requests by Bahrani and unwelcome sexual
advances continued during
the day-to-daywork. The continued harassment made the respondent complain
to the supervisor, seeking his intervention in the matter. When the supervisor
sought clarification from Bahrani,
the respondent was immediately sent on leave. Later,
when the respondent attempted to resume work,
she was not allowed, nor was allowed to perform any of her duties despite going
to the office every day. The respondent was also threatened that she and her
husband employed in Saudi Arabia would be dismissed from work. When the
respondent attempted to take the matter to a higher authority, she was given a letter of termination, which
stated that she was guilty
of wilful insubordination and acts of negligence committed during her work for
which there was no explanation. The matter was heard before the First Labour
Court in Mumbai, the court held the termination as an act of victimization and
directed reinstatement of the respondent with full back wages and continuity of
service with all attendant benefits. Aggrieved by the decision of the Labour Court,
the petitioner approached the Bombay High Court, which further upheld the
decision of the labour court.
In the case of Rina Mukerjee vs, The State of West Bengalix, victim Rina lost her job within six months of her joining
The Statesman newspaper. While the company alleged that her work was “tardy”
and “lacking in quality,” it suppressed the fact
that right before her termination within her first month of work, Rina complained to the
managing director about the sexual
harassment she faced from the news coordinator Ishan Joshi. When the
organization failed to inquire into the matter, Rina filed a complaint to the West Bengal Women’s
Commission with the firm belief
that her termination was the result of the sexual harassment complaint. Hearing the matter, the Industrial Tribunal
(West Bengal) held that such termination was not
bona fide and was a colourable exercise of power. The employer not being able
to produce any evidence to show that the performance of the employee
was unsatisfactory raises doubt about the bona fide discharge and makes one think that she was victimized. The High Court of
Calcutta upheld the award asking the organization to reinstate Rina for the remaining
period of probation along with the compensation of Rs. 1,00,000/- (One lac) to be paid by the Statesman Ltd., within
three weeks from the date of order to the employee.
In the case ofX and ors vs Akademi and orsx,
the aggrieved woman is from the northeastern states and was appointed to the post of editor on probation
for two years. The aggrieved woman started to face several
sexual harassments from the secretary, which included sexual advances, unwelcome
physical and sexual contact,
and sexually coloured remarks. He also regularly
made racist comments
about women hailing from the North-east. When aggrieved woman confronted him and told him that she
would complain to a higher authority, he tried to hold her hand,
saying that she should have understood his ‘hints’ and she should provide him ‘bodily satisfaction’ if she did not want her probation period to be extended. After she
reported the matter,
the Internal Complaints Committee stated that it did not have the jurisdiction to inquire about
the matter, and the Local Committee had the jurisdiction, which clearly shows the impartiality of the Internal
Committee. The local Complaint
Committee inquired about the matter and granted
her interim relief and she requested
the Internal Complaints Committee to discontinue the proceedings. But the Internal Complaints Committee while submitting the report to the respondent stated that the aggrieved woman had withdrawn
the complaint. When aggrieved
woman started protesting for the same, she was terminated from the
job. Challenging the termination order she approached Delhi High Court. And
court ordered for reinstatement of the woman as a probationer in terms of her
appointment letter with continuity of her services,
till the conclusion of the inquiry by the Local committee.
In the case of
Ms. X vs Registrar General,
High Court of Madhya Pradesh
and Anrxi, the petitioner was working as an Additional District and Sessions Judge
with good grades in her Annual Confidential Record (ACRs). Thereafter, the
petitioner complained that she was sexually harassed by Justice A. Due to the
said sexual harassment complaint, the then District
and Sessions Judge
addressed a complaint against the petitioner to the
Registrar General of M.P. High Court. Further, the Transfer committee of the
M.P High Court, with two judges approved the mid-term transfer of the
petitioner from Gwalior to Sidhi (424 km away), without going through the
annexures of the Transfer policy. The petitioner
requested an extension of 8 months in Gwalior so that her daughter studying in
12th grade
complete her academic session, the same was rejected. She further requested to seekan alternative post to any of the four
cities nearby so that her daughter could complete her education, which was also rejected. Out of frustration, the petitioner applied
for resignation, which was accepted by the government of Madhya Pradesh.
The petitioner thereafter filed a writ petition before the Hon’ble
Supreme Court, stating that she was coerced and exerted duress until the only option she had was to resign. The Supreme Court declared circumstances
of the case show that the petitioner’s resignation could not be considered
voluntary, but was forced and left with no other alternative. The respondents were directed to reinstate the petitioner and she would be entitled to continuity in service with all consequential benefits.
Although the termination order of Patnaik was set
aside; Shehnaz Mudbhatkal, Rina, and Ms. X were all reinstated to their earlier
position, and the District & Sessions judge was given back her post, these cases are effectively capturing the essence
of the retaliatory actions
faced by the complainants of sexual harassment. The cases also capture that,
the trend of the retaliatory actions against the complainant existed
even before the Vishaka guidelines and continues till today in various
forms. The organization in all the above cases neglected to take cognizance of
the complaint through the mechanisms prescribed by the law, which had a
negative impact on other women workers, the safety of the workplace
environment, and the company’s reputation.
Recently, the Hon’ble Supreme
Court in the case of, Sunita Thawani Vs Union of India and Anotherxii, dismissed the Public
Interest Litigation filed to protect
the complainant, witnesses, or other
persons in cases of sexual harassment from victimization or retaliatory actions
faced in the hands of the accused person or the concerned organization. The
reasoning for the same was, that the petitioner was required to show some
instances of harm arising out of such victimization. In February 2020, the
Delhi High Court dismissed the case relating to the offense of victimization and retaliation, stating “Retaliation, or victimization, is only the provocation for an act of assault.
If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013.If it does not, it cannot be punishable under the said Act, as the Act deals with only offenses
of a sexual nature, and an offense which does not lead to sexual harassment can
find no place therein.” But the truth is, it is difficult to provide
substantial proof of damage or harm caused
to victims because
retaliatory actions after reporting
the sexual harassment are often non-sexual which can cause significant emotional distress and
career setbacks for victims. This fear of non-sexual retaliation is one of the factors
discouraging victims from reporting sexual harassment. Therefore, my argument
is that, to encourage the reporting and combat sexual harassment effectively, undertaking measures to address
all forms of retaliation even if it is non-sexual
nature is necessary and this would create a safer environment for victims and
other working women to come forward and seek the redressal.
Does The Law ProtectAgainst Victimization?
The Prevention
of Sexual Harassment at Workplace Act, 2013 fails to provide any safeguards or
protection against the retaliatory actions faced by the victims of sexual
harassment post-reporting. Some of
the provisions of the Act try
to provide safety to the victims
but are inadequate, such as Section 19 of the Act, which imposes duties on the
employer to ensure the safety of the workplace. But the section falls flat to ensurethe
safety of the victims against the retaliatory actions.
Further,
section 12 of the act provides the action to be taken during the pendency of
inquiry, where on the request being made by the aggrieved women the Internal
Committee or the local committee, may recommend the employer to transfer the
aggrieved woman or the accused to any other workplace, or grant leave to
aggrieved woman for three months. This should be considered as a step towards
ensuring the safety of the victim but inversely the transfer is resulting in an act of retaliation against the victim for
reporting the sexual harassment.
Therefore, the
present law on Sexual Harassment of Women at the Workplace fails to recognize any protection against
the victimization of complainants, witnesses, or other persons supporting the victims at the workplace. But India being a signatory, is yet to ratify the International Labour
Organization’s Violence and Harassment Convention,2019 which effectively under Article 10 targets the issue of retaliation
and ensures the safeguards against retaliation, victimization, or undue
consequences against complainants, witnesses, and whistle-blowers. Thus, the incorporation of Article 10 through organizational policies can
provide safety to the victims of sexual harassment, and increase the number
of reporting of sexual harassment complaints.
Conclusion and Way Forward
Victims of Sexual Harassment value their safety and
support in the workplace more than taking legal actions against the perpetrator
because they fear facing retaliatory actions post-reporting, which most of the time make the victim powerless due to
job insecurity (Lopez 6). Retaliation significantly hinders the efforts to
prevent Sexual Harassment in the workplace and creates a hostile environment.
To overcome the stigma attached to the reporting of Sexual Harassment at the
Workplace, which is well established in the paper, there is an urgent need to
undertake measures protecting the complainants or witnesses from being
victimized. Safeguarding those who come
forward to report is not
just a legal obligation but also a
moral duty of the organization.
A committed
effort on the part of the organization is necessary to ensure that the purpose of the Prevention of Sexual Harassment Act 2013, is served by encouraging
the reporting of sexual harassment, rather than discouraging women through the
weapon of victimization. Organizations that have invested in emphasizing gender
diversity and ethical practices must inculcate strong policies toward
protecting the victims of Sexual Harassment in the Workplace (Bhatt). Thus,
organisations while framing their policy must give a specific
emphasis in the following aspects
such as, zero-tolerance policy
against retaliation within the sexual harassment policy which shall include a clear
definitive clause describing all the acts of threats, intimidation, illegal
transfer, isolation etc., as retaliatory actions; include the anti-retaliation
clause written within the offer agreements between employer and employees which
shall clearly state retaliation against complainants is prohibited, knowing
there will be serious consequences for indulging in retaliation can make the individual less likely
to do so; strengthen the reporting mechanism which shall include a confidential
reporting through online reporting forms, anonymous reporting options rather
than manually complaining to the superior authority which many a times go
unheard (Zheng); the training and awareness programme about Sexual Harassment
at Workplace should extensively cover recognising, reporting, and understanding the consequences of retaliatory actions
against victim, the explicit discussion about retaliatory actions can bring it
to the forefront of employee’s mind about what
constitute retaliation because many might not even realize their actions
constitute retaliation, further this can enhance
peer support as it empowers
the peers to recognize retaliation and understand
its impact on the victim. These measures by prioritizing the victims make them
feel safe even after reporting their experience of sexual harassment in the
workplace.
The paper
reflects the power dynamics and patriarchal culture exercised by the authority
over the victims of sexual harassment. Further, it is worth commenting that our
education system is enabling women to develop the skills and competence to be
economically independent but failing to build more emphasis on gender equality
and respect towards women. Thus, tackling the issue solely through organizational measures is like treating
the symptoms without
addressing the root cause. To create
a safe environment for women, a prolonged
approach is necessary, focusing on cultural
shifts along with organizational reforms.
To conclude,
the fact that despite policies on sexual harassment, inappropriate behaviour
towards women employees
continues in the form of retaliatory actions. This makes me think
that laws and policies
are universal but it is on the shoulders
of the organization to improvise on them as per the need of their
workplace. Therefore, organizations should focus on gender diversity in the
workplace not only in terms of increasing the number of working women but also
ensuring that all those numbers count!
Bibliography
Statutes
1.
The Constitution of
India, 1950
2. The Sexual Harassment of Women at Workplace (Prevention, Prohibition,
and Redressal) Act, 2013
Table of Cases
|
Name of The Case
|
Citation
|
|
M/S. Saudi Arabian Airlines vs Mrs. Shehnaz Mudbhatkal
& Another
|
1999 (1) BomCR 643
|
|
Ms. X vs Registrar General, High court of Madhya Pradesh
and anr
|
(2022) 14 SCC 187
|
|
Rina Mukerjee vs, The State
of West Bengal
|
2014 (4) CALLT 190 (HC)
|
|
Sunita Thawani Vs Union of India and Another
|
MANU/SCOR/80111/2023
|
|
Utkal Machinery Ltd. Vs. Patnaik
|
1966 SCR (2) 434
|
|
X and ors vs Akademi
and ors
|
2021(3) SLJ 454 (Delhi)
|
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Article Information
PREVENTION OF RETALIATORY ACTIONS AGAINST COMPLAINANTS OR WITNESSES POST-REPORTING OF SEXUAL HARASSMENT COMPLAINTS AT WORKPLACE.
Authors: ANUSHA C KOTI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/10/03
- Issue 7
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International Journal for Legal Research and Analysis
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