Some medical, journalism and legal professionals have complained of harassment from men they have met for professional reasons on neutral territory outside the workplaces of both. Can her employers take up her complaint with his employers, or should the police be involved?
Workplace, under the law, includes any place visited in the course of or in relation to work. Hence a complaint can be filed with regard to any incident of sexual harassment which takes place in the course of work, or in the course of activities associated with discharge of professional duties.
If the sexual harassment is committed on “neutral territory” the woman can file a complaint with the Internal Committee of her organisation; however, this IC may not have the power to impose an effective penalty on the man who committed the harassment. The woman may file a complaint with the IC of the organisation that the man is employed with. In such cases the woman’s employer has a statutory duty to support her through the complaint and inquiry process. The woman may also choose to file a complaint with the police, and in such case her employer has a duty to provide all required support such as legal assistance, leave etc.
If the alleged incident involves individuals working in the same organisation, but has taken place in a private space outside the premises of the workplace and outside of work hours, will that be a fit case to be taken up by their employer?
It must be kept in mind that even while the act of sexual harassment has taken place in a private space outside of work hours, the relationship between the two parties has arisen during the course of work, and these two persons will continue to share a professional relationship. Further, such conduct, even if committed in private spaces, has the potential, in the future, to impact other women at the workplace. The employer must address the incident through appropriate measures in order to fulfil its constitutional and legal duty to provide a safe work environment.
On whom does the burden of proof lie when there are no witnesses to the alleged incident?
Let us be clear that the burden of proof, whether in civil or in criminal proceedings, always and only lies with the woman who makes the complaint. In criminal proceedings the charge will have to be proved beyond reasonable doubt, since the penalty involves restraint on personal liberty. In civil proceedings, like the inquiry under the Act, the standard of proof is preponderance of probabilities, since the penalties are civil in nature.
However, it has been acknowledged through decades of jurisprudence that gender-specific offences are often committed only when there are no third parties present, and their inherent nature leaves behind no “corroborative evidence”. The panic of misuse created around “he said-she said” is dangerous. All inquiries and trials have evolved principles based on which the testimony of the woman is to be appreciated and its credibility determined, as well as ways in which the defence of the accused is to be analysed.
Do certain circumstances, such as one or both parties having consumed alcohol, constitute legitimate defence for an action that the woman deems to be sexual harassment?
The consumption of alcohol or atmosphere of a party are not defences for transgressions over a woman’s sovereign right over her body, either in law or in civilised behaviour. It is important to realise that many professions are structured to include certain forms of social interaction; a woman’s presence at such events therefore cannot be read to imply her acquiescence to the culture and practices in such spaces.
Can a past or continuing romantic relationship constitute legitimate defence for an action that the woman deems to be sexual harassment?
No, it cannot be a defence, particularly since recent judgments of the Supreme Court including on Privacy and Adultery recognise the bodily and sexual autonomy of women as a fundamental right.
The answer to this will, however, depend on the specific facts of the case.
It must be reiterated that the employer has a duty to provide a safe work environment for all employees irrespective of the past or present relationship between the two parties. Often these cases are misunderstood and dismissed as “relationships gone sour”. No law allows an employer to turn a blind eye whether it be a instance of domestic/marital violence or violation in an intimate relationship, all of which are gender-based wrongs. A “no” has to be respected and cannot be re-interpreted.
Do the rules depend on the nature of the professional relationship between the woman and the man she is accusing? Does it matter if they are co-workers, or in a hierarchical/reporting relationship, when determining sexual harassment and its extent?
The Act and Rules provide a definition of sexual harassment and lay down the procedure applicable to all complaints. In many instances of sexual harassment it is seen that the power and position of the perpetrator allows him to commit sexual harassment with impunity. The superior/reporting position also enables quid pro quo harassment, which is often misread as a straightforward consensual relationship. The superior-subordinate relationship must be kept in mind by the inquiry committee while determining whether or not sexual harassment took place, as well as while evaluating the response of the woman, her subsequent conduct etc. It must also be kept in mind while determining the penalty.
Vrinda Grover is an advocate at the Supreme Court of India.