Can we Separate Workplace Harassment from Sexual Misconduct?

There is often confusion associated with distinguishing between workplace harassment and sexual misconduct. This becomes essential for the HRs of companies because they receive various types of grievances from their employees. Ideally, the complaints of sexual misconduct should be addressed to the Internal Committee (IC) established under the POSH Act. However, this may not always happen because the complainant may be unaware of the IC. Another reason could be that the complainant is confused about the nature of the behaviour they had experienced.

Sexual misconduct may take place in the most sophisticated form. It may appear like workplace harassment, but the complainant knows there is something beyond it. We need to look into the following two aspects mentioned in the POSH Act to understand this:

Hostility
It is straightforward to label a behavior as sexual misconduct if it’s evidently sexual in nature. But, if no sexual connotation is visible on ‘the face of it,’ it may give the impression of workplace harassment. E.g., a manager started excessively delegating work to a subordinate and gave unreasonably stricter deadlines to deliver the same. This is workplace harassment, and the subordinate should complain to HR. However, such hostility becomes sexual misconduct when the abovementioned behavior is a consequence of rejecting sexual favors asked by the manager. When the complainant experiences an oppressive, intimidating, offensive, or uncomfortable behavior resulting from the denial of sexual advances, it must be reported to the IC.

Retaliation
Retaliation means adverse behavior experienced by an individual due to raising a sexual misconduct complaint or participating in an inquiry. An aggrieved person, complainant, witnesses, etc., may face retaliation from the respondent or any other person. Some retaliatory behaviour includes delaying granting approvals, not responding to emails, not keeping in the loop, cyberstalking, gossiping, etc. Here also, we see that these examples, if understood in isolation, amount to workplace harassment. However, if the context is understood in its entirety, it amounts to retaliatory behavior arising from sexual misconduct complaints. Hence, it must be reported to the IC. When such workplace harassment behaviour occurs after filing the complaint, it should not be sent to HR for redressal. Instead, the IC must combine and make it part of the actual sexual misconduct complaint.

Determining Sexual Misconduct
We saw how there is a very thin line and an overlap between workplace harassment and sexual misconduct. Whenever sexual misconduct occurs, it may also be a series of recurring and repetitive workplace harassment incidents. To be able to determine that it’s a case of sexual misconduct, the following aspects should be looked into:

• Background of the incident reported.
• Connection with any conduct of sexual nature.
• Impact on the complainant or an individual.
• Years of work experience of the parties.
• Entire facts and circumstances of the case.
• Relationship between the parties.
• Involvement of power dynamics between the parties.

When individuals experience sexual misconduct, they may be confused or believe that they are overthinking. Despite attending several POSH awareness sessions, it may be difficult for them to approach IC. They may at times report to HR and try to resolve it as a workplace harassment complaint. It could be because they may find it challenging to raise their voice against sexual misconduct behavior directly. Hence, HRs are responsible for forwarding such complaints to the IC for preliminary analysis to determine if sexual misconduct exists. Accordingly, the HR or the IC can further inquire and redress the complaint subject to the facts and circumstances.

We at Ungender work with the Internal Committees of various companies to understand such critical details about sexual misconduct behaviors and complaints. For further assistance, reach out to us at contact@ungender.in