What to Do When Sexual Harassment Occurs: Response and Resolution

Table of Contents

1. Overview

2. Defining Workplace Sexual Harassment

3. What Leads to Sexual Harassment in the Workplace?

4. Legal Framework in India for Workplace Sexual Harassment

5. Responding to Employee Complaints of Harassment: A Step-by-Step Process

6. Proactive Measures for Preventing Workplace Sexual Harassment

7. Roles of Various Employee Groups in Preventing Workplace Sexual Harassment  

8. Final thoughts

9. Related Studies and Resources    

I. Self-assessment Tool for Leaders and Managers

II. Workplace Sexual Harassment Policy

Overview

Creating safe and respectful workplaces is essential for successful and sustainable businesses. The Prevention Of Sexual Harassment at the Workplace Act was brought into effect to provide comprehensive resources and guidelines for organizations to foster a positive and inclusive work environment. This is a valuable resource for organizations to build a safe, respectful, and inclusive work environment by prioritizing the well-being of all employees and ensuring compliance with relevant laws.

Safe workplaces are critical for sustainable businesses because they promote employee well-being, enhance productivity, and foster a positive organizational culture. Employees who feel safe and respected are more likely to be engaged, motivated, and committed to their work. This, in turn, leads to better business outcomes and long-term success. Sexual harassment not only affects the individuals involved but also has far-reaching consequences for the entire organization, including reputational damage, decreased productivity, and legal liabilities.

Sexual harassment of women is an issue that affects every nation and remains a persistent concern in our country as well. As we encourage more women to join the workforce, ensuring their safety and well-being in the workplace is crucial. The collective responsibility of the government, employers, and every member of society is to create an environment where every woman feels safe, respected, and protected. By working together, it is possible to foster a positive and inclusive workplace for all.

There is growing awareness and adherence to the POSH Act of 2013, which was initially designed to protect women from sexual harassment. Organizations must extend these clauses to protect all employees, regardless of gender, to ensure a truly inclusive workplace. Organizations can create a culture of respect and accountability by implementing robust policies, conducting regular training sessions, and establishing clear reporting mechanisms. 

Unfortunately, even well-intended organizations continue to botch their harassment training, investigation, and discipline practices, leaving themselves vulnerable to legal liability and loss of talent. It is important to note that the negative effects of harassment can be long-lasting and severe. In any workplace, sexual harassment may lead to long-term health issues, trust issues, depression, substance misuse, post-traumatic stress disorder, and chronic health problems. The cost to the company can also be high if the victim decides to sue the employer for the harassment incident.

This toolkit aims to understand better the roots of sexual harassment and the dynamics that drive it across organizations. It aims to design the best strategies to prevent, respond to, and eventually end workplace sexual harassment. 

Defining Workplace Sexual Harassment

Sexual harassment in the workplace occurs when a person makes an unwelcome sexual advance or request for sexual favors to the person being harassed or engages in other unwelcome conduct of a sexual nature towards the person being harassed— – in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person being harassed would be offended, humiliated, or intimidated by such conduct.

The alleged harasser's intention is irrelevant when determining whether an advance, request or other behavior may be considered sexual. An advance, request, or other conduct may be sexual even if the person engaging in the conduct has no sexual interest in the person or has a different sexual orientation from the person being harassed.

Sexual harassment entails the following:

• Inappropriate physical contact, including unwanted touching, hugging, cornering, or kissing

• Invasive inquiries concerning someone's personal life or appearance

• Sexually suggestive comments or jokes

• Showing pornography

• Comments made in person or in writing that are offensive or intimidating

• Requesting sexual favors

• Being followed, watched, or ogled

• Sexual gestures, indecent exposure, or inappropriate display of body parts 

• Repeated or inappropriate advances via email or other online social platforms

What Leads to Sexual Harassment at the Workplace?

While some cases of sexual harassment have no underlying cause, others do. The three most common causes of sexual harassment in the workplace are:

• Power Imbalance

Someone in a position of perceived power, such as a manager or supervisor, may be tempted to take advantage of such power. Even today, more men than women hold superior positions, which is one reason why women are more likely to be harassment victims.

• Lack of Robust Policies and Procedures

Not practicing what one preaches can only fan the flames. Companies may have an employee handbook with rules and regulations about harassment in the workplace. Still, very few people may be aware of them or be genuinely encouraged to report any and every instance of harassment. Companies that do not reinforce rules against harassment will only see such behavior increase without anyone fearing action against their act.

• Gender Inequality

The entrenched gender inequality manifests itself in the form of violence against women. The unequal distribution of power, resources, opportunities, and value accorded to men and women in society influences the prevalence, dynamics, and impact of sexual harassment against women.

Only with a clear understanding of the causes of sexual harassment in the workplace can we begin to identify and effectively implement the necessary changes in policy, practice, law, and culture to respond to, prevent, and end sexual harassment.

Legal Framework in India for Workplace Sexual Harassment

In India, before the enactment of the Special Act on Sexual Harassment in the Workplace in 2013, several provisions addressed and criminalized the sexual harassment women faced:

• Indian Penal Code (IPC), 1860

Section 354 of the IPC provides punishment for "outraging the modesty of a woman by force." It also defines "sexual harassment" as a separate offense and provides punishment for it. Section 509 of the IPC provides punishment for outraging the modesty of a woman by words, acts, or gestures.

• Industrial Employment (Standing Orders) Act, 1946

Although this Act lays down rules on wages, number of working hours, working conditions, etc., for employers in an industrial establishment with more than 100 employees to maintain a safe and healthy working environment, it also includes and defines "sexual harassment" among certain other misconduct. The Act provides for forming a Complaints Committee to investigate complaints of sexual harassment in the workplace.

• Indecent Representation of Women (Prohibition) Act, 1987

Harassment by "indecent representation of women in advertisements or publications, writings, pictures, figures, or in any other manner" is forbidden by the Indecent Representation of Women (Prohibition) Act, 1987. The Act makes the employer and those involved in committing such an offense liable to punishment.

Although various legal safeguards criminalized sexual harassment in India, there were no elaborate guidelines to deal with it. In 1997, in the case of Vishaka vs. the State of Rajasthan, the Supreme Court of India laid down guidelines known as the "Vishakha Guidelines." Following these guidelines, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 was enacted in India.

• Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013

This Act contains provisions relating to sexual harassment in the workplace in India. The preamble states that the POSH Act is intended to "protect women from sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment."

Under the Act, the term "workplace" includes both organized and unorganized workplaces and both private and public sector workplaces, including the place visited by an employee in the course of their employment and a dwelling or a house, or even extended workplaces such as ‘off-sites,’ thus bringing almost all possible workplaces within its ambit. The Act provides for establishing an Internal Complaints Committee to look into complaints of sexual harassment by any woman in the workplace.

Responding to Employee Complaints of Harassment: A Step-by-Step Process

A formal, written complaint is the basis for initiating an investigation. Whether specified or not, all the laws laid down hold employers vicariously liable for incidents of discrimination, harassment, and victimization committed by their employees during their work unless they can prove that they took reasonable steps to prevent such acts. It's, therefore, imperative that employers take a firm stance against any behavior that crosses the line and are well-versed in preventing and dealing with such incidents in their workplace. So, what should an employer do when a worker comes forward to disclose such wrongdoing?

Step 1: Pay attention to allegations of harassment.

Prompt the employee to tell their story in full to strengthen their trust in the employer and help them confront harassment in the workplace. The employer will also benefit from attentive listening in obtaining crucial information early on. Knowing the whole context of any claims of sexual or non-sexual harassment can help the employer respond appropriately, right away, and wisely when designing an investigation.

Step 2: Ensure the victim’s protection.

A full investigation is required to address a complaint of workplace harassment, but this takes time. In the meantime, an employer should act immediately to protect the potential victims of alleged harassment.

How best to take this immediate protective action will depend on the circumstances. However, the goal should be to ensure that an alleged harasser does not have the opportunity to engage in further harassment or workplace retaliation against the person making the workplace harassment complaint.

Two of the immediate preventive measures that may be appropriate are:

• Rearranging work schedules so that the alleged harasser no longer works with the complaining employee or other potentially vulnerable employees

• In some very serious cases, putting the accused harasser or the harassed person on a suitable leave of absence

Step 3: Conduct a thorough assessment.

A harassment investigation should include extensive interviews with the person complaining of harassment, the alleged harasser, and any witnesses. Each person interviewed should be assured that the information gathered will be shared only with those who have a legitimate need to know.

Everyone involved in the investigation should keep the details as confidential as possible. Investigators should never force a confrontation between the complainant and the alleged harasser. Finally, everyone participating in the investigation should be guaranteed that their involvement will not result in any form of retaliation.

Step 4: Draw a rational conclusion.

A complaint isn't considered resolved until it has been addressed with conclusions based on the findings of the investigation. This can be one of the most difficult steps for employers faced with harassment complaints, especially in case of malicious complaints. During the investigation, the complainant and the alleged harasser may narrate entirely different stories. It might be challenging to decide whether harassment has indeed happened at work when there are contradictory accounts of what happened.

The dilemma lies in failing to respond adequately to a harassment case and in inadvertently overreacting to a harassment complaint – and taking harsh disciplinary action against the alleged harasser. The consequences of a wrong decision can lead to a wrongful dismissal claim or other employment law problems from the alleged harasser.

If the investigation is inconclusive, you can have both employees involved sign a statement of understanding, such as "It has been reported that X happened. I understand you say you didn't do it, but we need you to understand X policy.”

This will not constitute disciplinary action, but the signed document will ensure that employees are aware of the consequences of their actions should a similar issue arise again. 

Depending on what exactly happened, the organization may opt to provide additional training to employees in accordance with the policy.

Step 5: Communicate the results of the investigation to both the parties involved.

After completing the investigation and drawing appropriate conclusions, the employer should promptly inform both the alleged victim and the alleged harasser of the results of the investigation.

In general, the conclusion of the harassment investigation will include the following:

• Briefly explain the findings of the investigation.

• Reaffirm the employer's policy against harassment.

• Outline the next steps to ensure that harassment does not occur in the future.

Written documentation of the conclusions drawn can be helpful later on to show that the employer took reasonable steps to prevent and correct the harassment.

Step 6: Take appropriate remedial measures.

If, as a result of the investigation, the employer concludes that harassment has occurred, the employer should take all reasonable steps to:

1. Protect the victim’s interests.

2. Enforce the company’s zero-tolerance or anti-harassment policy. In certain cases, this may mean terminating the employment of the person found guilty of sexual harassment.

3. Additionally, it is preferable to physically distance the harasser from the harassed person as much as possible to safeguard the harassed person's interests and well-being.

4. If the harasser is the harassed person's line manager, it is advisable to transfer the harassed person to another line manager. However, if this is done, the harassed person mustn't face any harm in terms, conditions, and employment opportunities.

5. In cases where allegations of sexual (or non-sexual) harassment in the workplace are not substantiated, the employer should still take reasonable steps to protect the alleged victim’s interests.

Step 7: Re-evaluate the anti-harassment policy and implementation.

An employer should examine its current anti-harassment policy as soon as possible after being compelled to address a complaint of harassment in the workplace. Even if the investigation doesn't come to a concrete conclusion, it is a wake-up call for the employer. This makes it all the more important for an employer to take all reasonable steps to prevent future incidents of sexual harassment in the workplace.

Questions for employers to consider are:

• Are there areas and sections of the current harassment policy that may be ambiguous?

• Does the current harassment policy accurately reflect the current legal definition of sexual harassment in the workplace?

• Has the employer adequately communicated its anti-harassment policy to employees?

• Does the sexual harassment policy define the procedures for handling harassment complaints?

• Does it require any modifications or need to be supplemented?

Proactive Measures for Preventing Workplace Sexual Harassment

Sexual harassment negatively impacts any organization's general work atmosphere, productivity, and well-being. Hence, employers need to be proactive in stopping sexual harassment and promoting a polite, safe work environment. Here are a few ways to stop sexual harassment in the workplace. 

• Draft and Disseminate a Clear Policy Addressing the Situation

A comprehensive policy is often the best roadmap for investigating a case of harassment. The policy guides the organization's decision-makers and employees toward consistency and fairness in decision-making and behavior. This helps avoid misunderstandings, disagreements, and the possibility of legal problems. Policies help set boundaries for acceptable behavior, thereby creating a positive working environment that promotes professionalism, respect, and accountability among employees.

A robust anti-harassment or zero-tolerance policy should state that any act of sexual harassment will not be tolerated and that every complaint will be thoroughly investigated.

Key elements of the policy should include:

• A clear statement identifying sexual harassment as a serious offense, attracting legal consequences

• Examples of the type of behavior that would constitute sexual harassment

• Clauses underlining the fact that ignorance of the law is not an excuse

• Easily accessible ready reckoners of the process (which may also be displayed prominently)

• Steps or procedure for reporting sexual harassment with timelines for each stage of investigation

• Frequency of refresher training to be completed by all employees (irrespective of mode of employment)

• A sexual harassment complaint form (format)

• A statement assuring that an employee will not suffer retaliation for making a complaint

• Special mention of the possibility of appeal in case of dissatisfaction with resolution by either party

• A clear picture of the investigative process that will begin after a complaint is made

• The possible disciplinary action that will be taken against the accused

• Updated contact details of the the Chairperson and members of the Internal Committee (including External Member and Anonymous helpline, if any)

• Names and contact information of the people to be contacted for more information

The policy needs to be reviewed regularly, at least once a year. Meetings of the Internal Committee (preferably at least quarterly, if no cases are reported) are a great opportunity to do so. This will help keep it up to date with changes in the POSH law and gauge its effectiveness.

See. Anti-Sexual Harassment Policy 

• Educate Employees and Managers

The next stage is ensuring management and staff are aware of and follow a formal, well-defined sexual harassment policy. Organize training workshops at least once a year to educate staff members on sexual harassment and how to report incidents they witness or encounter without fear of repercussions.  Organize separate training sessions for managers and supervisors to inform them about sexual harassment, how to handle complaints of any kind, and the steps involved in an inquiry after a complaint.

Although many believe that employees can easily identify sexual harassment in the workplace, this is not always the case. Obvious forms of sexual harassment, such as physical, sexual harassment, or verbal harassment, are easy to spot. However, the more subtle forms, such as inappropriate gestures or online harassment, are not. If such behavior is not identified and addressed, it will not only continue to occur, creating a hostile work environment, but it will also damage the company's culture and professional relationships.

Therefore, it is important to educate employees so that they are on the same page about what constitutes harassment. They should be able to recognize what is acceptable and unacceptable in the workplace and be aware of the importance of maintaining professional boundaries. Sexual harassment training should include positive content, focusing on professional, courteous behavior.

• Take Feedback

Be proactive and use surveys to ask employees if they have experienced workplace sexual harassment and if they have reported it. If the survey results show that employees have experienced harassment but have not reported it, managers/HR can identify the reason and encourage them to report it. This has several benefits:

• It demonstrates the employer's commitment to preventing sexual harassment.

• It ensures that the majority, if not all, incidents of sexual harassment are addressed.

• It helps evaluate the effectiveness of harassment prevention initiatives.

• Prevent Retaliation

While confidentiality is critical in dealing with sexual harassment cases, it is equally important to eliminate any possibility of retaliation. After all, a victim will only come forward if they know that they are fully protected and will not be harmed in their career. An open culture that encourages communication is the ultimate solution to preventing any form of retaliation and the fear of retaliation.

• Promote I&D

Inclusion and Diversity play a key role in preventing sexual harassment in the workplace. By fostering a culture of inclusivity, promoting gender equality, and addressing unconscious bias, organizations can create a safe and respectful environment for all employees. Embracing I&D helps organizations avoid the negative effects of harassment while also enhancing business success.

Role of Different Employee Groups in Preventing Workplace Sexual Harassment

Role of the Top Management

Top management plays an important role in shaping workplace culture, which is the best predictor of sexual harassment. Managers who lead with integrity, respect, self-awareness, and empathy can significantly reduce workplace harassment incidents. When leaders take sexual violence seriously, their managers and employees will, too.

Role of Leaders and Managers

Employees want leadership accountability for letting sexual harassment occur and tolerating it. Managers should communicate their commitment to preventing sexual harassment in the workplace. Leaders and managers play an important role in shaping people's attitudes toward sexual harassment – setting the tone for whether it's tolerated or not.

See. Self-Assessment Tool: For Leaders and Managers

Role of Peers

Employees should be aware of their role as active contributors to ensuring safe workspaces. They should receive and propagate genuine, robust training and resources to take necessary action. Employees should be trained to take a colleague's concern for their safety seriously and offer to support them.

Role of Human Resources

It is the goal of all supervisors, managers, and leaders to create a safe climate, raise awareness, and provide training to prevent acts of sexual violence in the workplace. It is equally important for HR professionals to be aware of their roles and responsibilities once an act of sexual harassment in the workplace is brought to their attention. As people leaders, they should monitor their workplace for concerning behavior. They should take all disclosures seriously and treat them equally. Furthermore, all grievances must receive the highest level of confidentiality in order to prevent any reprisals after a disclosure.

Final Thoughts

Sexual harassment in the workplace is one of the most underreported events experienced by individuals. In actuality, the data about sexual harassment at work only provides a partial picture of the issue. Many instances of workplace sexual harassment are often swept under the carpet due to power imbalances, fear of retaliation, fear of not being believed, fear of inaction, and fear of losing jobs.

While legislation on reporting and preventing sexual harassment has made great strides, its implementation requires more work to create company environments where women can speak up without fear of judgment, where there is greater gender awareness, and where the workforce is more balanced and inclusive. Society still has a long way to go in tackling prejudice. Until then, it is the responsibility of employers to create a healthy environment free from mistreatment and retaliation.