What Happens When You Report Workplace Sexual Harassment to the ICC ?

In the episode of #WhatHappensNext,Kirthi Jayakumar, Founder of The Gender Security Project spoke with Meghana Srinivas, Founder of TrustIn, which focuses on building safe and inclusive workplaces by addressing workplace sexual harassment (among other areas of concern). Meghana helps us understand the options available to a person who has faced workplace sexual harassment and provides insights on all the steps that follow after a complaint is filed with the Internal Complaints Committee under POSH Law.

View Full Session Here: https://youtu.be/Q9PCjdBpx-U

Kirthi Jayakumar : Hello and Welcome to what happens next, a series curated as part of Saahas' ongoing endeavour to equip survivors of gender-based violence and active bystanders with information toward empowered decision making. In today's conversation, I'm speaking to Meghana Srinivas, the founder of TrustIn, about workplace sexual harassment and the recourse available to survivors. Meghana thank you so much for being available all the time with Saahas; whether it's in conversations like this or in supporting survivors, it's always a pleasure to work with you.

Meghana Srinivas : Yes, same here Kirthi, it's wonderful to talk to you again and thank you so much for running this series and for having me be part of it.

Kirthi Jayakumar : Cause Meghana would love to have you introduce yourself and tell folks who are listening in or watching this video a little bit about yourself and TrustIn and then we'll get started.

Meghana Srinivas : Hello everyone, my name is Meghana Srinivas. I'm the founder and CEO of TrustIn . We are a one-stop solution for your workplace safety needs what that means is we have a product as well as services that enable you to build the safest most inclusive workplace that aligns with your cultural values we provide a lot of support around the posh implementation of the prevention of sexual harassment law we also look at other kinds of workplace misconduct everything from bullying harassment to things like fraud, insubordination microaggressions etc because you deserve to feel safe and empowered in the place where you work whether it's your company or your college campus, because that's where you spend most of your time and therefore your life, and we're here to help you understand how. You can have a higher quality of work-life, especially in today's conversation. I think we can shine more light on that.

Kirthi Jayakumar : Meghana thank you so much for all that you do I think I can personally vouch for the fact that your work and TrustIn's work has made such a powerful impact on so many survivors and so many organizations.

Meghana Srinivas : Thank you so much Kirthi.

Kirthi Jayakumar : So let's get started. Meghana, what is the option available to a survivor of workplace sexual harassment once an incident happens.

Meghana Srinivas : There are many options available to the survivor. Posh is also a very employee-centric law but many times we might not be able to access it because we're not aware of our rights, so the first thing that an employee can do is if their workplace has an internal committee also called the posh committee or the Visakha committee in some situations they can go ahead and submit a written complaint. There will be a dedicated Email Id which will be available on the posh poster it might be part of their anti-harassment or posh policy so you can go ahead and reach out to the head of the internal committee in writing. After that, they will have to legally take up the case and see it through to completion. Let's say that if you are a freelancer perhaps I'm a domestic worker and there is no IC for you to go to or for some reason if you feel that you don't trust your Internal Committee, You always have the option of going to the Local Committee of the district, so this is again a five-member committee that's Constituted in every single district because I'm Bangalore-based, if I want to report sexual harassment in a workplace interaction, I can go ahead to the Bangalore urban local committee. The national commission for women helplines and the statewide, websites do have local committee information. Marthaphile foundation has also done a great job of compiling all of these local committees and district officers on their website so users can go there, so that's one set of options for civil cases. Any act of sexual harassment is also a crime under Indian law, so at any point, if the survivor feels that they would like to file a police FIR and therefore a criminal case, they can do that and they can also choose to do this while the civil case or the posh case is going on. This can run simultaneously as well. People should keep in mind, that I have an internal committee. I have the local committee of the district. I have the police FIR as another option.

Kirthi Jayakumar : That was very helpful Meghana. So you talked about the internal complaints committee and the local complaints committee could you tell how they are different from one another?

Meghana Srinivas: Under the posh law, any employer that has 10 or more paid employees knows necessarily that they have to be paid this can include interns, volunteers etc anybody under contractual obligation to the company at that time they have to constitute an internal committee and the committee has to be upskilled and sensitized. This is about four company employees and one external member who might be a lawyer who may be specializing in women's rights an NGO worker, this external person has to be there for objectivity and neutrality of the proceedings so this internal committee would exist within your workplace rights in terms of the local committee of the district, it would usually be again five people mostly working in this space very familiar with the locality as well and they would be appointed from different government branches and they would be running these posh cases but if again these are the ones that are happening outside of your internal committee process.

Kirthi Jayakumar : Got it, That was a very succinct explanation, so let's say a survivor files a complaint before the internal complaints committee in their company what typically happens next?

Meghana Srinivas : What would happen is the internal committee would get in touch with them. They will help them, they have to say they have received your complaint and they have taken cognizance we're going to move forward with the process they also often have to give the survivors the complainant the choice of whether the complainant wants to go through conciliation or they want to have the entire legal inquiry.

So conciliation is when there's a mediated conversation, perhaps the complainant feels that " Okay you know what this was an explicit joke I did not ask to be subjected to this on my work WhatsApp group but I don't want to go through an entire three-month process I just want this behaviour to stop and I want an apology from the respondent ".

So in that kind of situation, they might ask for a mediated conversation with IC ( Internal Committee ) members present so this is called a conciliation and at the end of it will have a settlement agreement where the companion has put forward these terms. It might be a written apology or it might be stopping the behaviour or it might also be like moving to a different team. Any non-monetary terms and everybody present has to sign off on the settlement agreement the case is closed

If the complainant does not want conciliation, If the respondent is a repeat offender or if the consideration fails in that the parties can't agree on the terms or the respondent says "Okay!, I will stop the behaviour" but then starts retaliating because the complaint has dared to complain in all these situations then they would go through the full legal enquiry process and that can take no longer than three months or 90 days from the date of the complaint. During that there will be multiple hearings so the IC is going to ask you to present your pieces of evidence for your side of the story. They're going to ask you to bring in your witnesses listen to the testimony of all the witnesses.

My biggest learning was around how as an IC we have to establish two types of answers.

The first one is questions of fact, What is it that happened? This can include everything from CCTV camera footage to things like that and this is something that survivors should know. So it doesn't just have to be the pieces of evidence that you can procure say like phone screenshots or email records. It can be so many things like the HR log of the company which shows when people are signed in and out so then you can ask the questions of fact which is what exactly happened rand establish that pattern of behaviour and this is something that the witnesses would help as well in establishing.

The second question is questions of law, What happened amounting to sexual harassment? and once that is answered through the hearings then the IC goes into deliberation and they decide whether yes what happened is to constitute sexual harassment and if yes then how proportionally can we have some recommendations. So this can range from a written apology maybe a censure by the company formally to suspension demotion for three years. They might have to pay a portion of their salary to the complainant for their therapy costs for six months and finally, they may even be asked to leave the company. These things are things that would happen if in terms of the complainant wanting to know what are exactly the timelines you can expect the whole process.

The legal enquiry usually takes about three months or 90 days after that the internal committee has 10 days to put together the findings report and the case report and they should be sharing the findings report with both the complainant and the respondent.

If you want to appeal then the company leadership has two months or 60 days to implement all the recommendations of the IC.

Kirthi Jayakumar : Right, that's a very all-encompassing overview Meghana, and I'm going to go to something very specific because this is a question that we receive a lot at Saahas how does a survivor go about documenting their case and what kind of evidence should they strive to collect before they file a complaint?

Meghana Srinivas : One thing is it would help us feel much more prepared if we had evidence and one thing is as we know that not every case has evidence not every case in many ways generates pieces of evidence and that's something I do want to assure anybody listening off that the posture is very clear that's not about the evidence or concrete evidence you don't even need to have witnesses or onlookers and things like that you can go ahead and escalate because one of the principles and shrine and posh law which I feel I take as a motto for my life now in many ways is the impact over intent so what matters is the impact on the person receiving the behaviour not the intent of the person initiating the behaviour so at any point if you feel there was a remark on your appearance whether it was flattering or derogatory if you feel that there was an explicit joke all of that is shaped by your personality your life experience or exposure but the law is very clear. It's about treating people as they wish to be treated not treating people as you wish to be treated and therefore if you feel negatively impacted by anybody's behaviour you always have the right to come forward and escalate it. if outside of this circumstantial evidence there is some evidence that can be brought in then I think what is helpful is screenshots etc everything from WhatsApp messages to email exchanges.

Nowadays I do see that maybe people have recorders, unfortunately, many times video calls and even audio calls have been misused at all times of the night like asking somebody to get on a Zoom call saying "Show me your bedroom "or "Show me what you're wearing" all of these are examples of sexual harassment so if you're able to have any of those recordings that would be helpful and another thing is what we can keep in mind is usually after the incident, we might confide in somebody or we might react to the person who has enacted that behaviour of the accused, we might say "Hey! I felt uncomfortable I'm not like what you just said to me". Now, this again is a time stamp body of proof in that sense because that does establish that yes on the afternoon of this day, I went ahead and said this because of what had happened on the call just a few minutes earlier let's say for example I am being sexually harassed and you saw me crying in the bathroom later today then I can always call and keep you as a witness and you can say "Yes! You know I'm not sure what happened, she didn't tell me but in you know on today's on the 14th of Jan 2022 right around 5:30 p.m. I saw her now crying copiously in the bathroom, I have no idea what was wrong but she seemed upset". This again helps us answer the questions of fact that's something that happened on the 14th of January 2022 that upsets so then you can also become a witness in my case even though you are not a direct eyewitness to the incident so all of these are examples of circumstantial behaviour and why they can come in into a case like this is because partial is the civil case. So, therefore, there's something called the balance of probability, it doesn't have to be that or beyond a reasonable doubt, I have to be sure this is what happened the IC just has to feel that you know 51 there is the probability that this behaviour has occurred it has had these ripple effects that we're seeing in the evidence and the witnesses etc and therefore we can establish that sexual harassment has occurred so that's what I always would encourage. if possible as soon as you feel that some of the trauma reactions are passing please do feel free to put down whatever you remember because even though it might feel very clear to you how many times such as a trauma response your brain is trying to protect you it might go away. So for yourself please make some kind of written record you can record a voice note whatever feels right to you can take screenshots if you have any recordings sometimes on zoom work calls or something happens it's already being recorded all of these can be used anything circumstantial like people who saw you upset CCTV camera footage attendance registers all of these can also be able to establish who was there and what might have happened so all of these evidence you can use as well

Kirthi Jayakumar : Now, this is going to make such a big difference to so many people listening in because it's a very challenging area for a lot of people to grapple with so truly. So let's talk a little bit about the rights of a survivor while seeking rejection now there are so many gray areas around this, so if you could speak about some of the key rights a survivor has and how they can safeguard them, that would be great?

Meghana Srinivas : Many times people ask they're can I take leave because I'm scared to see this person after complaining, and this is a vey valid fear it is rooted in data, whether it's walking away from abusive relationships or, you know, reporting perpetrators of workplace violence. This does become the most dangerous period for survivors and that's why posh law is a very employee-centric law. The first thing it enables the complainant to do is to ask the IC for something called interim relief. Even if you go to the local committee, you can still ask them and they will tell your employer to provide this relief to you. So the first one is paid leave during the case, so after the holidays that you are already allocated and you're already entitled to this on top of that So if the case goes on for all 90 days then you will have paid leave for all 90 of those days So that's something we do encourage complainants to take advantage of simply because you might feel that no it's not going to be a big deal you know I can deal with it things like that keep in mind that later if you change your mind you can always ask for this, so that's one big thing the paid leave and the second type of interim relief is also asking for a different manager if your complaint is against your manager, so this could be anybody supervising you it doesn't have to be your manager it could be your PhD supervisor for example so if this person is reporting on your professional performance in any way then during the case and all out to do that so you might have a skip level manager taking over you might have somebody else. But making sure that they are changing the managers, the first thing the internal committee should also take care of the second thing is of course, during, you know a case it's a very awkward and stressful time for everybody involved so you can ask for a transfer of yourself or the accused to a different team or different geography this again might seem unnecessary in the beginning but if you change your mind at any time you can ask for these three types of interim relief so once again they're paid leave different manager change of manager and finally changing the team of for yourself or for their cues. You can always take tap into any of these in term release I think the second thing and one that a lot of people overlook regarding a posh complaint is that other people can be a complainant on your behalf, so let's say that I have seen an incident of sexual harassment occur with my colleague and my colleague is now very traumatized the three to six-month window is passing and that is when posh law recommends that we go ahead and report and within three to six months from the last incident but my colleague is not able to do it my a colleague asks me to do it for them then I can go ahead and do that as long as I have full knowledge of the incident and I have the written consent of my colleague I can go ahead and do that. If you look at the posh law even our company policy states that there are so many different scenarios in which everybody from a national commission for women member my psychologist my relative can go ahead and become a complaint on my behalf and that's why I think the law also keeps it very flexible they're like for any other reason with your written consent they can go ahead and become a complainant on your behalf so that's something I've not seen a lot of complaints take advantage of but something I would encourage because now the reporting window is a little limited so it's three months from the last incident up to six months it can be stretched but unfortunately the trauma response is very strong especially or sometimes they can even be physical and any sort of responses that prevent us from coming forward please feel free to give that written consent if you feel comfortable to somebody else so that they can become a complainant on your behalf.

Kirthi Jayakumar : One other gray area, or perhaps a place where most people feel uncomfortable about complaining is the fear of termination um, there's a tendency to assume that should they speak up they may be dismissed from the workplace; they may be transferred demoted, or just terminated entirely. Could you tell us a little bit about that and what rights a survivor has in that kind of scenario?

Meghana Srinivas : I think one thing for survivors and everybody reading this to know is that the minute we submit a written complaint, there is a legal obligation on the company to close that case and when I have seen this happen unfortunately when there's been a verbal complaint um legally speaking the internal committee also can't start working on that verbal complaint and there is no record of this verbal complaint anywhere ,the person might have also gone to the hr who as we know legally is not on the IC usually your head of hr is not on the IC unless it's a very small company then there are some edge cases , so now what has happened is this complaint has gone into the ether as such it has created a lot of panics and might result in a wrongful termination as it might be an accusation of incompetence but there's no record of such incompetence and things like that and there's no evidence for it all of these things of course if any of this has occurred again we do recommend please make sure that you know you have all of this evidence whatever can support your claims, it could be your performance appraisals over the last three to five years it could be conversations with your immediate manager and peers who can vouch for you you can always approach a good labour lawyer and you can take this up in the labour courts but in terms of how we can prevent something like this from happening is to maybe not make these verbal complaints not go to the hr if you know you want to make a complaint of posh of sexual harassment and sexual misconduct you should go to the head of the internal committee you can find that in your posh policy again r and please do send a written complaint on email so that record is there now while this complaint is going on you can't be terminated. So if that is what is happening, there's a lot of pressure, to terminate you, if they are trying to pressure you into accepting a conciliation or mediation, this again is a complainant's choice only. The accused cannot ask for it the internal committee cannot push for it and definitely, hr cannot pressure somebody saying you have to take conciliation otherwise you'll make sure that you know you can't stay on so all of these things are completely illegal I would encourage everyone to maintain as many records of these kinds of things as possible you can also record some of these conversations if possible and take it up in the labor courts with a good labor lawyer but the minute it's in writing the company also knows that they have to close the complaint otherwise there will be that record that there is an open case and later their legal liability will increase so I think these are all things that complainers should keep in mind but the most important one is always like put it in writing for yourself and then when you want to complain please do put in writing for the official authorities

Kirthi Jayakumar : What is the nature of the decision of the ICC. Is it binding? And what does the appeal process against that decision look like?

Meghana Srinivas :The internal committee right is vested with the powers of a civil court, unlike a criminal court, they can not pass judgments but they can give recommendations right; so once again the internal committee will go ahead and answer the questions of fact, find out what happened and then they will think about is what happened to constitute sexual harassment and think about what kind of recommendations they can give that's proportional too. The law mentions they will pass this on; they'll pass on this case report to the company leadership, has 60 days or two months to implement all these recommendations, so what I do want to clarify is that this is not a cherry-picking sort of process. It's not that the leadership can pick and choose that the recommendations we agree with are these three and these last two we think are too harsh or not relevant and we will not implement them, that's not how it works if there are five, they have to implement all five, they might take the whole two months, they might take 60 days to implement it, but legally they're bound to implement all of this now let's say that you know after the 90 days now there's been a findings report , the IC has said okay there were this many there were five allegations three were proved one was not proved and one we didn't have sufficient evidence so again not proved something like that now what the complainant can do in that situation is they can see if they agree with the findings and if they feel that they do not agree for whatever reason if they feel they want to add some additional evidence, for example, any example of retaliation and subtle harassment sometimes this harassment might not be coming directly from the accused it might be coming from other people, so for example, I have complained against x x is not speaking to me because during the case usually you have to keep things confidential you have to stay away from each other but x might now be exerting their influence to make sure that you know my expense reimbursement claims are being rejected by other people, perhaps nobody else is speaking to me during lunch or anything like that because it's become very clear that confidentiality has not actually been followed so all of this becomes additional information that I can take into the appeals process so most companies must have this in the policy as well they will have an internal sort of appellate authority almost so this would be a person an authority to whom I can take my appeal I can give this additional evidence as well or perhaps I can point out how the legal process was not followed many times what happens is you know both parties have to know what is the story that the other party is saying because lawyers are not allowed here and I have to give my own sort of defence I have to know exactly what is the evidence the other party is giving as well as what the witnesses are saying now if these pieces of information are not shared with both parties this means that the internal company has not followed the legal process and so this can also be grounds for an appeal apart from additional evidence if I know the legal process has not been followed I can go to the internal authority and present evidence of the legal process not being followed and then they will accordingly you know take action so this is the appeals process I will put this caveat that not all companies that have an I might have appointed an internal appeals authority but that still should not stop complainants and survivors from seeking that I think that is definitely your legal right so if there is like findings report that you want to appeal and you know that there has been a breach of legal process, or you know that you know there's a lot of additional evidence that you want to submit you can definitely go ahead and make sure you reach out to your internal committee and ask for that appeal the authority that you can go to.

Kirthi Jayakumar : Sometimes survivors may want to approach both the ICC and a quarter floor at the same time. One is that technically possible under the law, and two, is it advisable?

Meghana Srinivas : The reason that there was a push towards civil bodies being vested with these powers of the civil court is that our judicial system is frankly overloaded and the previous adversarial system it was found did not work for all kinds of cases many times when we think of sexual harassment any kind of misconduct at the workplace it has much softer aspects there's always a people aspect there's a cultural aspect and the sensitivity aspect so what they felt is that this kind of you know in-house courts would be best suited to fast-track these cases and also know enough about the context to give contextually relevant judgments so that's one thing to keep in mind that if you have a functional internal committee you feel confident that they might be able to do the legal process well and they're willing to extend the support I would always encourage you to go there here's also let's say you know many people might choose to take it to a criminal court of the land that is also possible um and like I mentioned there's always the police FIR route as well which can be happening simultaneously I think it would not be possible legally. To have a posh case going on with your internal committee which is a civil case and also approach a civil court of the land I think that might be and generally also, unfortunately, I have seen unless there is physical evidence of assault if a survivor chooses to go both with the posh case as well as the police FIR and later let's say there is an appeal perhaps the appeal goes to the courts of the land it's seen as quite an adversarial like why was this complainant doing a posh case and they were doing a police fire case so legally all these routes exist but as you know the way it is seen might be different.

Kirthi Jayakumar : You're right about that, Meghana, because it's, you know, going back to a statement you said that you also live by the impact over the intent I think the intent of the lawmaker has not yet translated into the impact they probably wanted to see happen because you're right, like the litigious nature of a complainant is called into question, and they've often raked over the course for having taken up two procedures possibly Holding up judicial time, as it were. But Meghana now this has been so enlightening and so helpful I'm sure folks who have reached out to us earlier who may reach out with questions like this would have already had so many of their doubts cleared but before I let you go Meghana I would love for you to share with us how anyone who's watching this and listening to this can get in touch with TrustIn and perhaps reach out to you to work with trusting to keep their workplaces safe and healthy.

Meghana Srinivas : Yeah thank you for that so for all who are listening and if you're interested Kirthi and I also collaborated on trustbot I think we haven't done much of the marketing yet but it's been slowly and steadily growing right so what Ttrustbot has is a series of posh resources to help anybody facing workplace misconduct like you know how to contact your nearest local committee what are your interim reliefs because right now it might be clear but while going through the process we might lose track of some of this information, unfortunately, the invisible pandemic of domestic violence has also continued and has work from home has become more and more the norm right I think we're seeing that there is a spike in domestic violence so trussport also has those resources for safety at home right and if you would like to access trustbot you can always come on the trusted website so it's at trustin.co.in you can sign up for a demo of our case management system you can ask for a conversation with me so we can talk about if you want to do sensitization you want to set up your policy you want to train your internal committee or you also want us to empanel as your external member we can do all of those things and yes if as an individual you want to access these support resources and share it with other individuals who you know need them then please do come on that website and look at trustbot right you can just talk to trustbot on WhatsApp and basically, that support will always be a fingers click away so.

Kirthi Jayakumar : Thank you so much, Meghana it's always a delight to work with you, to talk with you and to listen and learn from you, more power to you and to TrustIn and I truly hope you grow from strength to strength. Thank you so much, take care.