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Sexual Harassment is Not a Compliance Issue. It is a Culture Issue. - Cost to Company

The #Metoo movement normalised calling out bad behaviour, but it concerned itself much more with naming and shaming individual harassers. Not the workplaces that emboldened them. Not the cultures that created conditions for it to happen.But sexual harassment isn’t an interpersonal issue. It’s workplace issue. It’s the organisations that must be held responsible for behaviour tolerated by its employees. 25 years after the first Vishakha Guidelines were passed, we discuss the ways in which the laws remain insufficient to create safe workplaces. We probe to uncover where the gaps remain.And then we find solutions.

Neha : Take a moment to think about all the cases of sexual harassment you've ever heard of on Twitter from your friends at your post-work drinks with colleagues. You've probably found that many, if not most of the stories, involved women in their twenties. Even metoo stories you've heard from older women, many of them will have been stories that occurred years ago when the women were in their twenties. This is not a coincidence. There is something about women in their early twenties.

David Bus, an evolutionary psychologist, says that women in their earliest twenties are for better or worse, just desirable to all manner of age groups. Even more significantly, they're still very new in the meeting market. They're in their earlier days of figuring out how that market works. This makes them vulnerable. But most significant is this. Women in their early twenties are among the most professionally vulnerable demographics in the workplace. They have the fewest connections, and the least professional credibility to stand on. the least experience and they're just the easiest to mess with.

Combine this with gender bias, and you find that women in their early twenties are pretty low down the per lateral, which is to say that sexual harassment in the workplace is really about how we treat the most bulbous demographics in the workplace. How easy is it for them to be messed with? What is the culture willing to tolerate? How much does an organization care about how its most powerless are treated?

This is the cost to company, a podcast about work and workplaces, I'm your host, Neha. And in this episode, we're going to talk about sexual harassment. We will talk about how far we've come. the businesses that have made progress. But we'll also talk about where the vast majority remains and why they remain there. Most specifically, we will shift the focus from individual bad actors to organizations and how they can be improved to make workplaces safer. We will pause to marvel at how far we've come, and then we'll talk about how we need to push the needle further.

What Is The Vishakha Guidelines ?

First, we had the Vishakha guidelines. They were conceived in nineteen ninety-seven to protect working women from sexual advances in the workplace. The law covered sexual conduct, sexual suggestions, or sexual advances that affected the health and safety of women in the workplace.In twenty thirteen, the prevention of sexual harassment act was passed, and it superseded the Vishakha guidelines. It went into more granularity about the process itself of protecting women in the workplace. From sexual harassment, And then in twenty eighteen, India had a substantial metoo movement.

And the big changes that Metoo brought was first that we all realize that sexual harassment is far more common than we think. Second, thanks to the Metoo movement. The language of sexual harassment entered the common consciousness.
Third, even where the perpetrators suffered no material losses, cultures of impunity and silencing were challenged. our whispers were spoken out loud. It's now twenty-twenty-two. And the question we're asking is what's changed?

First, we will begin with Meghana Srinivas, founder and CEO of a startup called TrustIn, a platform that provides products and services to help make workplaces safer. Implementing the POSH act, well, is one of the primary ways in which she helps businesses. Some of her biggest clients include Proactive For Her, Teach For India and invite. She's also by far the most optimistic person we spoke to for this podcast.

Meghana Srinivas : As a piece of legislation, The POSH law is extremely comprehensive and clear. For example, we're running a few pilots in Singapore, which has a similar act called the Poha Act. That's really what it's called, the prevention of harassment act. And that way it is just quite vague about the responsibility of the employer. It's almost like your responsibility, to go to the civil courts and take this stuff.
And it's quite similar in the US and other such spaces. You have to go to equal employment. Opportunities Commission just becomes very stressful.

In that way, by instituting a civil quote in every company, almost like the palm child of your company, the portfolio has given us a way to have, like, a very simple and free option fee, reverse redressal process. You also have an external expert in POSH who can make sure that's objective. Things are not very sweet just what the employer wants.

Neha : So the POSH act does this wonderful thing, but it protects women from having to go to court for civic complaints. Instead, every organization with over ten employees has to have an internal committee, a quasi-legal body that can act instead of a formal judicial process. It can perform an inquiry, question witnesses, and pronounce judgments, It is a quote without having to go to court, what Meghana calls an organizational pun chat. And the act who is the organization liable to provide a safe workplace for its employees.

Meghana Srinivas : The court was very clear if you don't set up a committee and follow the rules, we will take away your business license. So what makes the POSH look fairly strong in India? So every year at the end of the calendar year, I have to tell the district officer whether or not I've been compliant. even if it means that I have to say the number of cases received is zero. The number of cases resolved is zero.
So most of our clients, what I've seen is, you know, for startups, this is critical for VC due diligence. For social enterprises, this is critical if you want FCRA due diligence done and renewal.

Neha : So it's an act that decentralizes redressal, makes it more accessible, and you could lose your right to do business if you don't comply. But it's not just compliance. Many organizations want to create a safer workplace.

Meghana Srinivas : A lot of companies that we work with have, say, a female cofounder. Or they have, like, quite a majority of female leadership. So for them, this is really about culture, not like checklist compliance.

Neha : More than the POSH Act, Meghana thinks it was the metoo movement that had a lot to do with this.

Meghana Srinivas : I think a few other things that came out during the Metoo movement were India and China were the only countries, but happened either anonymously or through intermediaries. Because there was just so much fear in the ecosystem. So in India, we saw so many brave, like, journalists stand up and real name and shame the perpetrators while keeping the survivors anonymous.
In China, there were say, Hello Kitty factories where people who are employed during the stories of sexual harassment or whose stockings because they were so scared of speaking up. But they were angry enough. There was enough momentum globally for them to get their stories out. But I think in twenty eighteen when, you know, the meter movement hit Asia in a big way is when a lot of stories came out, and that's when companies realize the risk of this operation.

Neha : It was during metoo that businesses saw the demand for safe workplaces.
They also saw that there was a business risk, a reputational risk, and a legal liability risk, to not taking sexual harassment seriously. It made many businesses sit up and take notice.

Next up is Puga Chandra, a partner at a deep law firm who practices corporate law, but spends a lot of her time mentoring and providing legal assistance to young women in sexual harassment lawsuits.

Puga Chandra : Consultancies are great. They talk about racism and sexism and gender equality and pronouns and how to make a workplace sort of open to all kinds of identities. And they too active orientation of their senior people, you know, people especially above a certain age group. for whom this kind sort of world where gender is a spectrum and sexuality is a spectrum is a whole new world. So they do the active orientation of these people. They have sensitivity, sort of consultants who come and talk to these people.

Neha : Does that work?

Puga Chandra : Yes. Yes. These organizations are the ones who are doing it well are doing it well.

Neha : Puga says that some organizations, especially the bigger, more durable consultancies, are doing well at preventing and addressing sexual harassment. One of the best ways in which they do it is by educating their organizations, not just by giving sexual harassment workshops, but gender sensitization workshops, consent awareness workshops by streamings, by upskilling the posh committee, bringing the older, less work leadership into this post metoo word, and she believes it works. So because of the combination of a nine-year-old posh act, the Metoo movement, and just well-meaning business leaders, some organizations are doing well.

But this is where the good news ends. Both Meghana and Puja agree that for the vast majority of women in the workplace, Legal compliance has not been enough. Women continue to be unsafe in their workplaces. Where there is a process There is an HR that eventually answers to the larger needs of the business. And where there is a law, there is a lawyer who can find a loophole.

Snehal : It was very much my early twenties, and it was my first job.
Neha : This is Snehal who began her career ten years ago at an advertising agency. She's now head of marketing at a major luxury brand. Back then, she was an entry-level associate at a global advertising firm, the kind with celebrity creatives and what she describes as not the most sexism-free place.

Snehal : There was one of these award parties. And at that award party, a lot of these would have open bars. So advertising people are just generally underpaid, so they would take full advantage of these open bars over time. I went to the bar to get a drink for my friend actually because I was getting off to get myself water and Just two minutes later, there was someone very, very drunk standing in a car, and he turned to look at me, and he said, ah, are you a drink?

That's it. It's an open ball. Yeah. You don't need to find me a drink, but he was drunk.
And without any, just out of the blue.

Neha : This story is so familiar. It's almost denial. Snehal went to the bar at an office party and a senior executive put his hand up her skirt twice. Unlike most pressures in the workplace, Snehal immediately reported it at the party to the head of her office. He put his arm around her and said, come dialling. I'll make him say, sorry to you. So she went to another person. He took it more seriously and made sure an inquiry was conducted. So far as you can see, the organization is complying with the law.

Snehal : With an MNC I was working for, and it went into the whole batch process.
But I did sit with my head of HR. She was a woman, and she has grilled me on this so many times as though I did something wrong and not that person.

Neha : What do you mean by a grill?

Snehal : So I was asked to write down the incident three different times. and I was asked to relay the incident at least on four to five different occasions. And then every time they would match they would record and match my students with the previous one. And they would match, like, the writing that I've done from one to the other, and they would pick on these things that were different. And I was like, I don't remember ever I was also in a state of shock. But I had to go over and over again, and they asked me so many times over to you. Maybe you were drunk and you were mistaken.

Neha : The HR then proceeded to intensely investigate whether or not Snehal was drunk back night, and whether or not this was an instance of miscommunication under the influence of alcohol. They never believed her they did believe a senior leader who knew she had not been drinking.

Snehal : Even though HR kept telling me that he/she went on and on and on about how they have taken his character certificate from every one of the company and they are so deeply shocked and in this belief that he could ever do something like this. And he's a great guy. He's such a nice guy. He's in so much regret. He doesn't even remember, you know, maybe he was a misunderstanding. he wants to apologize. Can I give him your number? I said I'm crazy. Like, no. Of course, you can't give him my number. Then she said, okay. Maybe I can give him your office extension.

Neha : The HR was compliant in law but not in spirit. And there was more discouragement from all quarters.

Snehal : Remember, my immediate boss used to get upset because I used to be called into meetings constantly by HR to discuss this, and he felt like I'm neglecting my job because of all of these all of all these are all this drama that is going on now is affecting the jobs at hand.

Neha : As I said, it's so familiar. It's almost banal. What Snehal wanted was for the organization to announce that it would be intolerant of drunken behaviour at parties.
Instead, she was told that if she did file the formal complaint, the man concerned would have to be fired because of the organization's zero-tolerance policy. The zero-tolerance policy was being used as a tool against her to discourage her rather than to meet her needs. It gave her legs to stand on, but it also took her agency away. Snehal eventually did complain, and he had to be fired, which is not what she wanted.

We're back to the lawyer Puja Chandra.

Puga Chandra : She'll not get the increment she deserves. She won't get the promotion she deserves. She won't get the project that she deserves. She won't get the added that she deserves. She'll be asked to leave.

Neha : Often, softer ways in which the complainant is failed include

Puga Chandra : They face hostile senior management. The person who's allegedly harassed them is enjoy will enjoy greater benefits to boost his confidence. These are very common stories.

Neha : And you've heard personally of each of these things happening.

Puga Chandra : It's ninety-nine per cent. This is what happens.

Neha : So when you have a fair robust hearing and action is taken and a signal is sent out, you believe that that's the one per cent minority.

Puga Chandra : Yeah. very there. More companies, smaller companies run by people who want to want to run it fairly.

But Why Would A Business Work So Hard To Protect Against Bad Workplace Practices Such As Harassment ?

Neha : Which is to say that even when businesses are compliant with the law, many, if not most of them find ways to undermine the act. But why would a business work so hard to protect against bad workplace practices?

Puga Chandra : The number one reason always is to protect their revenue from us. because it is a power dynamic issue.

Neha : Businesses are often short-sighted and will protect against bad behaviour if the badly behaved person is good for business.

Puga Chandra : If you're complaining about a big revenue or not, then you aren't getting any justice from that organization.

Neha : Do you believe that?

Puga Chandra : Hundred and ten percent. Please note me on it. It's a business.

Neha : Snehal had another case of sexual harassment more recently in her career, The person she was complaining against versus the CEO. Her immediate boss was fired after she brought up the complaint, The member of HR who was following due process was fired. In its annual report, this business declared zero sexual harassment complaints that year. Producers note by law, every publicly listed business needs to declare how many sexual harassment complaints they've had that year.

Helloers has been asked the business, how is it zero? And the business said that what they had created was not a POSH committee but an inquiry committee so they didn't need to report it. And boom, where there is a will, there is a way to circumvent compliance. There is a perfectly legal way in which justice is not served. After the inquiry was concluded and no harassment was found, Snehal was fired.

Neha : Then there's a vast knowledge gap. The big one is that most of us don't know that there is a limited window in which we can complain.

Puga Chandra : There is a lot about the act that is not told, you have a limitation, a very strict limitation. You have to complain within three months. Who knows that? Do you know? You go through actual sexual harassment, sexual a civil sexual molestation at the workplace. Three months is nothing. It takes you six months to gain confidence to actually. Nobody knows you have to complain within three months.

Neha : Three and a maximum of six months is the size of the window within which you can complain. Almost no sexual harassment policy explains this clearly.
The three-month limitation was designed to ensure that evidence is not lost and that the people concerned are still around. But this is frequently weaponized against women. Complaints that don't meet the limitations just aren't processed. In one instance, someone who is being sexually harassed was fired exactly six months after the last instance of harassment. There's also that we don't understand what sexual harassment even is.

Puga Chandra : The law is for sexual enhancement in the workplace. It's not a law to protect against sexual assault.

Neha : What is the difference between sexual harassment and sexual assault?

What Is The Difference Between Sexual Harassment And Sexual Assault?

Puga Chandra : It's a lesser crime, the difference between battery and assault. If I tell that man, that's you're staring and it makes me uncomfortable. Okay? And he says, I'm sorry. That was not my intention anytime's there. There's no it. But if he takes offence, he's he goes gets hurt, and he starts docking my pay, he's giving me fewer opportunities because I call them out on a behaviour, That's Sexual Harassment. That is what happens.

Neha : Another repeatedly heard add-on is that women set the bar high for reporting to posh. They don't set the bar for feeling unsafe. They set the bar on assault. They will wait to be assaulted before they complain. But sexual harassment is a civil case. It's not a criminal case. and it's specifically for less violent but more insidious transgressions because those can affect a person's health at the workplace. A career in the long term and confidence for life. There's also the softer question of what if something is acceptable to everyone else but not to me? What if I'm just not cool enough or casual enough? This makes a lot of women question their instinct. This is one of the cornerstones of how women are pressured into withdrawing their complaints. Except

Puga Chandra : It is ! . It is sexual harassment. It is not for you and me to define. It is for the person who suffers it to define it.

Neha : Having your boundaries, your standards, and your own culture is your right.
A workplace that is safe for you is your right. Then there's the posh committee itself. By law, the posh committee requires an external member with some legal or NGO experience. But Meghana recommends that it's more important that the person who is brought in has psychological training. The external member should have an understanding of the nuanced and strange ways in which trauma works.
There's also the fact that the POSH Act only protects the safety of women. Many litigants are trying to fight this in court. But organizations can be proactive and ensure that the policy protects the workplaces of all genders.

Meghana Srinivas : What happens many times is we have to understand that it's important to have somebody who's quite strongly, legally trained because they're questions of fact and questions of law that need to be rigorously answered in a pre-investigation. But you also have to understand the psychology of the parties at hand. It's not just a complaint and respondent, but witnesses are so scared in POSH investigations. To be able to speak to their fears and uncover what happened you also have to help manage the psychology of the members of the internal committee.

There might be some biases or mental models that come up because you're all a part of the same organization. You have seen these players in different setups. So then it's really about the external member thing that devil's advocate. And being able to understand whether the, you know, internal committee speaking from a fact-of-evidence basis, which has come out in the investigation, or they're coming from their pre-existing mental models and mindsets and calling that out.

Neha : And the largest knowledge gap that exists is in understanding why sexual harassment happens. The metoo movement normalized calling out bad behaviour but it concerned itself much more with naming and shaming individual harassers, not the workplaces that embolden them. But sexual harassment isn't an interpersonal issue. It is a workplace issue. It's an organization that must be held responsible for any exploitation of behaviour that is tolerated by its employees.

Puga Chandra : There are in every social structure, people with more rights and people with lesser rights in terms of age, age of consent, power or structure of that particular, let's say, a father will have new rights of, you know, domestic setup. And the organization that is the person, what duty bound to create a culture where these things can be called out.

Meghana Srinivas : Sexual harassment, sexual assault. It's not about sex. It's about power. And the exploitation of that power differential between two individuals or groups. So it can be any kind of power. I think many times we think about trended power imbalances. or perhaps the manager's subordinate kind of relationship. But it would be anyway like a socio-economic sort of differentials. Wherever there are these large imbalances of power and where you cannot speak to power is where we see abuses of power like sexual harassment.

Neha : Organizations are responsible for creating and upholding large differentials in part.

If the core is part differentials, equity part, First, how does that manifest? What does that look like? What does a part what does an organization with a lot of part in equity look like?

Meghana Srinivas : The most, perhaps, fundamental level, you would see a lot of hierarchical structures. Perhaps it is that you know, there are very strict, like, trickle down and trickle up sort of channels of communication.

Neha : If decision-making in organizations is non-transparent, if leadership is high-handed and not accountable, Those become festering grounds for sexual harassment cases.

What do you mean by trickled up and trickled down?

Meghana Srinivas : When you think about organizations with these it's called a power distance. One of the things is organizations with a high power distance, like hierarchy.
I think and also the layers are not speaking to each other. Or you cannot skip a layer. There is no sort of open door policy, right, between layers and things like that. So that already a fear. There's already, like, this, opaque opacity about each layer. So all these things make it harder for you to access your rights in practice. It's just that in theory, almost like a checklist, the policy has been done.

So that's another thing where it becomes very, very account for employees and that kind of work, pleased to access their rights. People are defined more by their roles, almost like by their titles. As opposed to perhaps their contributions. So in that kind of space, I have noticed that there is, like, a stronger culture of, Okay, you can speak up or you can have a grievance. But only if you are a certain kind of title or in a certain kind of location or a certain kind of role, So that does trickle down to people at the grassroots perhaps, people at the associate level, pressure level. They might be facing certain pieces, but they're not allowed to talk. about it. They're not feeling empowered to talk about it.

Neha : Meghana feels very strongly that having more women in leadership positions helps but it's not enough. Women in leadership can also be instrumental in creating digit power structures, and in consolidating power differentials. What is more important is a commitment to reducing power distance, a commitment to allowing juniors to call out seniors, and a commitment to breaking hierarchies in the ability to speak freely with leadership and hold them accountable. We opened with the fact that sexual harassment is all about the more powerful demographics, exploiting the less powerful demographics in an office. If a business culturally preserves those par differentials, you're creating breeding gowns for bad sexual harassment practices. You may be compliant but in spirit, you're already failing the posh act.

This is all to say that sexual harassment is simply not a compliance issue anymore. It is a cultural issue, and it requires a desire to change office cultures. Rather than simply complying with the law

Puga Chandra : I am not gonna tell you that the absence of legislation is better than legislation but the involvement of legislation in its peak of premium existence happens when it is implemented. If you implement it well, then only will you know how it can be improved.

What Is A Code Of Conduct Document ?

Neha : One of the ways make nothings a business can move beyond just compliance is by creating a cultural document, a desirable code of conduct document. What is a code of conduct?

Meghana Srinivas : A code of conduct is first HR document that a company should think of. It is something where, you know, your mission and vision and values will come out, but there's also very strict articulation of what is and isn't appropriate in our workplace and our context. And with our statement.

Neha : Can you give me a couple of examples?

Meghana Srinivas : I think based on the workplace, the code of conduct can include things like a dress code. It would already include, like, an articulation of heyers. Here's our mission. Here's our vision. Here's what we stand for. Here's what, perhaps, we have zero sorts of tolerance towards. I would say that there are ways in which we can and cannot communicate with interns. So it's very to stick to things like email and Slack communications even if the interns are reaching out to us on more, let's say, informal spaces like WhatsApp and Instagram. I think even a drugs and alcohol use policy can be useful in spaces and domains like media, where there might be a lot of parties with these substances involved.

Neha : A code of conduct can also include something like you can't force colleagues to drink at a party. How you may and may not communicate with an intern?

Meghana Srinivas : Another thing that employers should keep in mind is that usually in the employment, contract itself. We always have a clause that says, if you're not adhering to the HR documents, right, the code of conduct, the service rules, then we do reserve the right to terminate. Such an employee and everybody sign off on this. So code of conduct is a really strong place to start towards these policies.

Neha : A code of conduct is a sort of constitution of an organization. It articulates what the organization hopes to be. It's a cultural document that can be legally enforced. And when it's created preemptively, it sends up pretty signals about what a business is and isn't willing to tolerate, and how par differentials can and cannot be maintained. Meghana also thinks that a zero-tolerance policy towards sexual harassment can be counter-effective.

Meghana Srinivas : Many of them want a reconciliation. Also, the posh law allows for saying that, hey, I want a mediated conversation where me, the perpetrator, and the internal committee is present. I want a written apology. I want this behaviour to stop. But I never wanted this person to be fired. And I think companies again have to have committees that are killed enough to have these conversations, meet these conversations, have a settlement agreement, and make sure there are no cultural repercussions later. Because just by fighting someone, and then saying that, you know, it's a don't ask, don't tell.

We don't know what happened to this person who was just asked to leave. It always has cultural repercussions. and it definitely

Neha : What is some of those?

Meghana Srinivas : This is not something that the complainant wanted. If there was no investigation, then what the complainant is going to perhaps feel is that it's not safe to speak up again.

Neha :Another policy that's worked in the past is UMBud's office. MIT in the nineteen eighties had instituted something called the UMBud's office. which is a private confidential space where you can make informal complaints without seeking any redress. a soft complaint.

Mary rose a liberal economist and an adjunct professor of negotiation who served for forty-two years as head of MIT's UMBud's office says that employers who want to expose and address harassment must offer this alternative. Only one in a hundred complaints, she believes, can survive the rigours of a legalistic grievance process.
If such a process is the only option, most victims won't come forward.

Puga believes organizations shouldn't be so scared of conducting inquiries. They should normalize calling out and normalize conducting inquiries. It's just a civic case with civic implications.

Puga Chandra : At worst, what will you have to do? You'll have to talk his way for three months. If it's a high-revenue order, he can afford it. and it'll act like a deterrent for the rest of his life.

Neha :An apology, a few months of pay docked, adverse termination, That's what's at state for an accused. They all survived. Organizations shouldn't be so afraid of conducting fair inquiries. and they didn't work so hard to shut them down, which is all to say that our legislative progress. Our cultural progress isn't enough. we have to go miles still, and we should stop thinking about sexual harassment as an individual bad actor. But as an organizational issue, a cultural issue with cultural remedies.

Progress is not going to come through the legalese. It's going to come from the desire to make progress. But Puja does have some advice to hand out to young women.

Puga Chandra : I would appreciate it if you write an email as soon as possible. Otherwise, your three-month period will get over. Then I also tell them that I would appreciate it if they call out in prepaid behaviour even if you don't want to sort of categorize it as harassment. If something makes you uncomfortable, I would rather you nip it in the bud, and call it out on their face. Don't care if they're seniors. Don't care if they're uncomfortable. If they're fifty girls, they should learn to be having fifty different ways to those girls. I don't care.

This is how the most powerful treat the most powerless in an organization. That is a measure of a business's work.

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