17 Essential Ingredients and Guidelines for drafting an Anti-Sexual Harassment Policy

Only paying employees enough might not ensure productivity. According to a new research by economists at the University of Warwick, happier employees showed a spike in productivity.

Individuals need a sense of safety and well-being in order to be happy. A safe working environment for employees at workplaces acts as an important factor which, at times, considering their work industry, may become even a critical contributor towards their happiness. With harassment in any form (physical, mental and sexual) becoming a common contributor towards creating a disturbing environment at workplace, it is increasingly becoming important for business leaders to look into addressing this area. While no quantitative data captures the impact of a lack of any preventive measures towards these, the healthy work culture bred by a sustainable work environment make an anti-sexual harassment policy worth having. Moreover, establishments are now legally bound to have anti-sexual harassment laws in place in their workplace. Having a policy that lays down guidelines makes not only the process of prevention and redressal easier, but also helps create awareness.

Following are the essential ingredients and guidelines for drafting an ideal anti-sexual harassment policy.

1.  It must explain what the policy is about and why it is  important.

In simple terms, an anti-sexual harassment policy provides protection to employees against sexual harassment and provides for a mechanism for the prevention and redressal of complaints of sexual harassment.

The Sexual Harassment of Women Act (Prevention, Prohibition and Redressal) Act, 2013 (Act) makes it an employer’s duty to provide employees with a safe working environment at the workplace. A safe working environment ensures that a fear of unwanted or unwelcome sexual advances does not interfere with an employee’s work, thereby contributing to greater productivity.

2.   It must ideally be gender neutral.

Legally, only women are protected under Sexual Harassment laws in India. But sexual harassment has similar psychological and/or physical affects for all individuals, and in their greater interest, an anti-sexual harassment policy must cater to all employees regardless of their gender.

This should be further aligned with all the communication material, sensitization sessions and activities planned out for raising awareness on this issue in the organization. The most common mistake leaders end up making is in choosing a gender neutral or all-encompassing policy and failing to understand the nuances of sexual harassment and its impact on different genders. It is not advisable to leave the issue untouched and allow individuals to form their own interpretations.

3. It must state who are the stakeholders the policy is applicable to.

Employees

All stakeholders operating in the physical and virtual realm of your organization must be covered under this policy. Your organization’s anti-sexual harassment policy must extend to all employees, workers, volunteers, probationers and trainees of the company in the workplace or extended workplace, regardless of whether they are on deputation, part time, contract, working as consultants or full-time employees. This ensures that there are no loopholes in the policy, and every individual present on the establishment’s campus is held equally accountable.

Associated parties

The anti-Sexual Harassment policy must facilitate the redressal of complaints of sexual harassment by employees against the company’s clients, partners and associated vendors. For example, an investor company may want to extend the same to all its investee entities. An organization might adopt it as a verification criteria for travel and transport vendors. A taxi vendor/aggregator or a hotel may be required to have an anti-sexual harassment policy to enter a contract with the organization.

A company may modify the scope of this policy based on the type of work it does, and the people it’s employees are likely to come into contact with.

4.  It must state what actions fall under its ambit.

The policy must define what is meant by ‘Sexual Harassment’. Sexual harassment is any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated. It can involve one or more incidents and actions constituting harassment may be physical, verbal and nonverbal. This creates an environment which is hostile, intimidating or humiliating for the recipient.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines Sexual Harassment as any one or more of the following unwelcome acts or behaviour (whether directly or implicated):

• Physical contact and advances; or
• A demand or request for sexual favours; or
• Making sexually coloured remarks; or
• Showing pornography; or
• Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

A sexual harassment policy may include examples but they must give a disclaimer that they are not exhaustive.

5.   It must state where it is applicable.

The policy must define where it is applicable. Besides the establishment’s campus (includes parking lots, ATMs etc.), the policy must also include and define any other location which might be visited by an individual in the capacity of an employee of the company, but might not fall inside the campus of the establishments, under the ‘extended workplaces’. This may include any other work sites, or transport provided by the establishments to commute to work.

6. It must give information about the Complaint Redressal Committee or Internal Complaints Committee.

While the Act mandates the creation on an Internal Complaints Committee (ICC) for women in all administrative units/offices of establishments in India, an ideal anti-sexual harassment policy must create an ICC which accepts complaints from all genders. The role of an ICC is to formally accept complaints of unwanted sexual advances against an individual, conduct an inquiry into complaints, and decide a sanction which is concurrent to the degree of violation. The names of members of the ICC along with their contact details must be mentioned in the policy.

Note: Did you know that you need not necessarily give the title of “Internal Complaints Committee” to this entity? Organizations may find it easier to introduce these committees to their employees under names like “Talk to Us”.

7.   It must state the complaints procedure.

While Indian Sexual harassment laws mandate a complaint in writing, the policy may allow for a different mode of making a complaint (Telephonic, Verbal or over E-Mail). The policy should also allow that in case an aggrieved employee is unable to make a complaint on account of his/her physical incapacity, a complaint may be filed by

• his/her relative or friend; or
• his/her co-worker; or
• an officer of the National Commission for Women or State Women’s Commission in case of a woman employee; or
• Any person who has knowledge of the incident, with the written consent of the Aggrieved Individual.

Explicitly stating the complaints procedure ensures that no complainant may take up social media or any other mode of communication which shows the company in a negative light. Moreover, it provides the company with evidence to call out any false social media based complaint.

Legally, aggrieved employers are required to make a complaint within three months of the incident and in case of a series of incidents, within a period of three months from the date of the last incident.

8.  It must state the procedure and timeline of redressal.

Informal Resolution Option: An aggrieved employee has the right to seek conciliation if he/she does not want to pursue an inquiry into the complaint, provided that no monetary settlement shall be made as a basis of conciliation. Where a settlement is arrived at through conciliation, the ICC shall not undertake any further inquiry.

Formal Resolution Option: If the aggrieved individual is not comfortable with the option of conciliation, or has exhausted such option, she may proceed to make an inquiry into the complaint. The policy should mention the provisions of the service rules applicable to the respondent, in accordance with which the redressal process will continue. The policy should be fair to both parties, and there must not be prejudice against the alleged harasser until proven guilty. The policy must communicate that both parties will be given an equal opportunity to be heard, and should provide both parties with findings of the committee.

Timelines: The policy must state the time period within which the Complaints Committee must take constructive steps, and conduct investigation to come up with a judgment. This holds the ICC accountable in instances of delayed redressal.

Legally the timelines must be as follows:

• The ICC is legally required to complete their inquiry within 3 months of the date of the complaint. The inquiry report has to be issues within 10 days of the date of completion of inquiry.
• The employer is required to act on the recommendations of the ICC within 2 months of the receipt of inquiry report.
• An appeal against the decision of the committee is allowed within 3 months of the date of recommendations.

9.   It must state Sanctions and Disciplinary measures.

Most instances of sexual harassment and their investigations get stuck at a level where the affected parties (accused and aggrieved) are not able to get aligned with the decisions of ICC’s investigation. This results from the absence of definition for different kinds of sexual harassment and their occurrences for any investigation that ICC comes across. It also makes the investigation procedure more efficient if the degree of offences, their respective consequences and interim measures during the investigations are defined well in advance for all parties involved to take reference from.

The policy must state sanctions concurrent to the gravity and extent of harassment. They may include:

• Verbal or written warning
• Counselling
• Adverse performance evaluation
• Reduction in wages
• Transfer
• Demotion
• Suspension
• Dismissal

10. It must state the Penal Consequences of Sexual Harassment.

In addition to the action which the ICC may initiate, if prima facie, any conduct of an employee amounts to a specific offence under specific sections of the Indian Penal Code, the policy must allow the ICC to initiate appropriate action in accordance with law by making a complaint with the appropriate authority (Local Police) under relevant provisions of the code. The ICC must then facilitate the workings of the law-making agency.

11.  It must state the compensation to an aggrieved employee.

The policy must state the appropriate compensation that the company must give to the aggrieved employee. However, every incident will bring a different complexity and elements to be considered for compensation and must be looked as a case in isolation. For the purpose of determining the sum to be paid, the ICC shall keep in mind:

• The mental trauma, pain, suffering and emotional distress caused to the aggrieved employee
• The loss in the career opportunity due to the incident of sexual harassment
• Medical expenses incurred by the aggrieved party for physical or psychiatric treatment
• The income and financial status of the respondent
• Feasibility of such payment in lump sum or in instalments

12. It must provide protection to the Complainant, Respondent & Witnesses

The act of coming forward and making a complaint against higher order of an establishment might lead to further victimization or discrimination against the aggrieved employee. The policy must commit to ensuring that no employee who brings forward a harassment concern, is a witness in the disciplinary procedure, or is alleged to be a violator of this policy, is subject to any form of reprisal. The policy must state disciplinary sanction in case of any reprisal.

The policy may also allow the company to transfer the complainant and respondent to a different office or department to ensure that the aggrieved employee or respondent is not victimized or discriminated against while the Complaints Committee makes an inquiry into the complaint, or grant leave for the duration of the investigation. However, it is also vital that the wishes and needs of the aggrieved employed are respected while deciding the outcome of the complaints mechanism. The final decision to move to a different department, workplace or take a leave must lie with the complainant and respondent. They must not be re-victimized by being forced to move within the company, or by being told to not report to work for a fixed duration.

13. It must list out the methods of its Monitoring and Evaluation.

The only way to understand if the policy is being implemented properly is by periodically monitoring its performance, and its success in bringing justice to aggrieved parties. The policy may mandate an annual external-audit regarding the performance of the ICC, number of cases received by it and the success with which it has disposed of cases. The policy must also state evaluation through other means, including questionnaires completed by employees and feedback from aggrieved employees. On the basis of this audit, the company may evaluate the effectiveness of the policy and the complaints procedure.

14.  It must guarantee Confidentiality to any complainant, respondent witness(es).

The policy must understand that it is difficult for the victim to come forward with a complaint of sexual harassment. It must recognize the victim’s interest in keeping the matter confidential. The policy must mandate confidentiality be maintained throughout the investigatory process to an extent which is practicable and appropriate under the circumstances. This includes but is not limited to, keeping all records of complaints, including contents of meetings, results of investigations and other relevant material confidential, except where disclosure is required under disciplinary process.

15. It must state Sanctions against frivolous complaints.

So as to ensure that the protections contemplated under the policy do not get misused, provisions for action against ‘false or malicious;’ complainants must be made. Any false complaint by a woman specifically, must be taken to the District Officer assigned under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Sanctions against employees making false complaints may include:

• A written apology
• Warning
• Reprimand or censure
• Withholding of promotion
• Withholding of pay rise or increments
• Terminating the complainant from service
• Undergoing a counselling session
• Carrying out community work.

16.  It may provide information on a refresher course for employees in certain duration of time.

Drafting and implementing an anti-sexual harassment policy is futile if employees are not aware about it.  In order to ensure that employees have constant knowledge of their rights under this policy, the policy may mandate the attendance of all employees to an awareness/refresher course on the policy every 6 months, or a similar short duration.

17.  It may have Annexure  that provide related information:

The Anti-Sexual harassment policy may include an indicative list of basic Do’s and Don’ts. This list may not be intended to be construed as an exhaustive list.

It may include information on the dissemination of this policy.

It may carry the format of the complaint along with a sample, which would make it easier for aggrieved employees to file a complaint.

It may carry an infographic which might give the process of redressal against an incident of sexual harassment.