How Retaliation affects reporting Sexual Harassment at Workplace?

A 2015 survey revealed that 71% of women refrain from reporting instances of sexual harassment at workplace. Another 2017 survey by the Indian National Bar Association (INBA) revealed that only 68.9% of women in India complain to the Internal Committee (IC) or the management of sexual harassment incidents.

The INBA survey also indicated the reason behind women’s reluctance to approach their IC or management. These include the fear of retaliation, ensuing consequences, and sympathy for the accused. A 2022 report by Gapjil 119 showed that 8 out of 10 women who report sexual harassment at the workplace face retaliation of some form.

What is retaliation?

Retaliation is a way to trivialize the victim of sexual harassment, blame and demean them, and gossip about them. In workplace retaliation, an employer exerts power over an employee who files a formal complaint against sexual harassment. Any negative employment action of ‘exerting power’ constitutes retaliation. Examples include demotion, salary reduction, transfer, or termination of employment.

Many women refrain from reporting sexual harassment at the workplace due to the fear of retaliation. Both the accused and the organization can retaliate against the victim. Indeed, research has found that organizations tend to trivialize sexual harassment. This results in hostility and retaliation against the victim.

Reporting an instance of sexual harassment is in some way similar to whistleblowing. Whistleblowing is when a person, usually an employee, exposes an illegal practice or wrongdoing of their company, such as corruption. Both intend to end an unethical or illegal situation.

The environment of the organization influences its response to reporting. Retaliation can be kept in check if the organization supports the reporter. A reporter is subject to less retaliation if they receive more support from the organization, particularly, the management. Such support can be seen through efforts in substantiating the allegations and redressing the complaint. The support is further facilitated by the organization’s intolerance of sexual harassment.

Also Read: POSH FAQ: What Happens When Someone Files A False Sexual Harassment Complaint?

Retaliation and false complaints

The Verma Committee, headed by former Chief Justice of India, Jagdish Sharan Verma, reviewed the  Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) (PoSH) Bill, 2012 as a part of a report submitted in January 2013. The Bill was then due to be passed by the Rajya Sabha. The Verma Committee found the Bill unsatisfactory and recommended certain amendments. It was, however, passed without taking any recommendation into account.

The Verma Committee called Section 14 of the PoSH Act, 2013, an entirely abusive provision that intends to nullify the law’s objective. Section 14 of the Act punishes a woman for filing a false and malicious complaint. This provision enables the organization to retaliate against the reporter and prohibits other women from coming forward.

In May 2018, a Local Committee (LC) in Gurgaon displayed the final order in a complaint of sexual harassment publicly on its website. The LC decided that the complaint was false due to the inconsistency between the complainant’s statement to the IC and the LC. It also reasoned that the complainant had delayed reporting the incident. Therefore, it issued a written warning to the complainant that she must not misuse the law in such a manner.

Arbitrary use of Section 14 leads to retaliation against the reporter. It also discourages potential complainants from coming forward and reporting any sexual harassment incident. Therefore, even when the provision clarifies that lack of proof or the inability to substantiate the complaint does not falsify it, it is evident that the misuse or arbitrary use of this provision can lead to retaliation.

Also Read: 10 Things HR Managers Must Do To Prevent Sexual Harassment At Work

Instances of retaliation in India

Recent years have seen women speaking up against sexual harassment at their workplaces against prominent male personalities. These are mostly men in power and authority.

In 2019, former CJI Ranjan Gogoi’s junior assistant accused him of sexually harassing her in 2018. She filed a complaint with 22 justices of the Supreme Court. In response, Justice Gogoi held an urgent hearing the next day and did not notify the complainant. Moreover, he presided over the hearing and called the complaint an assault on judicial independence.

After public criticism, another inquiry committee headed by former CJI S A Bobde was set up on the recommendation of Justice Gogoi. This Committee found Justice Gogoi not guilty and cleared him of all charges in 2019. It said that the complaint had “no substance.”

Powerful men often resort to legal intimidation such as defamation suits. Around 20 women accused then Minister of State for External Affairs, M J Akbar, of sexual misconduct while he worked as a newspaper editor. He had to step down but he filed a criminal defamation case against the first journalist who spoke about him Priya Ramani. 

In February 2021, Ramani was acquitted by a Delhi court. Her acquittal, however, does not counter the claim that powerful men will go to any extent to malign the name of their victims.

Besides defamation suits, men also seek injunction orders to restrain media houses and publishers from publicly reporting on the allegations against them. Such orders enforce a gag order on the media. It also prevents the public from staying updated on the developments.

Protection against retaliation – International Convention

The International Labour Organization adopted the Violence and Harassment Convention in 2019. The treaty sets new standards to respond to harassment in workplaces. India voted in favor of the Convention and is a party to it.

It lays down provisions regarding complaints mechanisms, enforcement,  monitoring, and support for sexual harassment survivors. It also lays down standards for a dispute resolution mechanism outside of the workplace, special courts, tribunals, and protection against retaliation. It also specifies that victims will have access to remedies. Such remedies include redressal mechanisms, protection for whistleblowers, and compensation.

Article 10 of the Convention requires every member of the Convention to provide “protection against victimization of or retaliation against complainants, victims, witnesses, and whistle-blowers […].”

Also Read: Sexual Harassment At Work: How Inefficient Policies Hinder Redressal Mechanisms

Steps to curb retaliation at workplaces

An organization may treat sexual harassment perpetrated by a lower-level employee seriously as punishing them will not bring harm to the goodwill of the organization. On the other hand, sexual harassment perpetrated by a senior-level employee might be swept under the rug to prevent organizational damage. 

However, there is also another aspect to a situation like this where an organization may treat such a case seriously since it is a ‘high-profile’ incident and have the tendency to damage the goodwill of the organization.

Whatever the demographics of the complainant and respondent are, the fear of retaliation is always present. Therefore, there are certain steps that companies and HR leaders must take to prevent retaliation and protect complainants against it.

Strengthen the workplace culture

Companies need to strengthen their workplace culture and mandates. Stronger policies and a Code of Conduct support and protect employees. Companies must strive to protect the trust of the employees by taking sexual harassment allegations seriously. A safe space at the workplace that encourages everyone to come forward is essential.

Implement the law’s mandate

The growing problem of bullying and retaliation against victims can be handled through the effective implementation of the PoSH Act. IC and employee training and PoSH policy implementation can help resolve the problem of retaliation since they sensitize your employees and management.

Regular awareness sessions

Regular awareness sessions that not only address PoSH but also all related aspects of sexual harassment at the workplace will further keep retaliation in check. The employees and the management must be trained to empathize with the reporter rather than gossip about them or demean their claims. Organizations must take a firm stance against victim blaming.

Carry out surveys, feedback, and studies

Employers can carry out department-specific surveys to determine the patterns of gender-based violence in their organizations. This will help them identify adequate prevention and response measures. Employees must be anonymously surveyed regarding redressal mechanisms, ease of accessing them, and retaliation.

Also Read: Importance of Support Systems for Sexual Harassment Survivors within Workplaces

Processes that reduce the risk of retaliation must be in place in every organization. Ensure that your employees have supportive supervisors and work groups so that the risk of sexual harassment can altogether be minimized. 

A workplace culture that reflects intolerance of sexual harassment is built only with the help of the top management that is committed to reducing sexual harassment at their workplaces. Regular organization surveys, awareness sessions, and zero-tolerance policies contribute to healthy and safe workplace culture. 

It is time that we rethink the masculine structure of workplaces and address how such structure gives roots to retaliation against the reporter of a sexual harassment case.

Ungender is a technology and advisory firm. We help workplaces build an employee-first and inclusive culture. Write to us at sidra@ungender.in to build a safe, diverse, and inclusive workplace.