How far is too far in harassment?

Last Updated: Tue, May 21, 2013 06:48 hrs

What constitutes sexual harassment? Or, how far is too far?

Companies all over the world are struggling to find an answer to this apparently simple question.

The following two examples will tell you why.

* On the first day of a fresh batch of graduation students in a US school, an English literature professor referred in passing to "post-coital depression" being the inspiration behind many romantic poems. "Can you explain this in detail?" asked a young girl in the class. The professor was too embarrassed to go into the specifics, but when the girl got persistent, the professor casually told her to come to the staff room after the class is over.

The next communication that the teacher received from the student was a complaint of sexual harassment.

The university management found merit in the student's allegation and fired the professor for his "suggestive" comments.

The professor, however, went in appeal and was finally reinstated in his job after a local court found no substance in the charges levelled against him.

It's not clear who is the victim in this case - the teacher or the student, the court said.

* At the other end of the spectrum is another example, this time in India.

In 1999, the Apparel Export Promotion Council (AEPC) terminated the services of an employee after a departmental enquiry found substance in the sexual harassment complaint filed by a lady colleague.

The employee, however, appealed in the Delhi High Court, which ordered his reinstatement on grounds that he had only tried to molest the lady, and did not actually molest her.

The AEPC appealed to the Supreme Court, which held that actual assault is not the question.

"Objectionable overtures with sexual overtones is enough," the court said, striking down the Delhi High Court order.

HR experts say it is usually impossible to produce documentary evidence to support a sexual harassment claim and this partly explains why company managements sometimes overreact once a complaint is filed.

Lawyers often counsel companies to avoid litigation by quickly firing people who are accused - with or without completing a full investigation.

The other course adopted by some companies is to ignore such complaints in the hope that everything will be forgotten and forgiven in due course and the management need not get involved in the mess.

This, however, can prove costly in the long run.

Look at Mitsubishi. In 1998, A US court ordered the company to pay $34 million to 350 female workers at its Illinois plant because the company ignored their repeated complaints about a sexually hostile working environment.

Ashish Mohan, assistant professor at the Birla Institute of Management, says the issue of sexual harassment has largely been swept under the carpet in India and the overall awareness among Indian companies about the need for a well-defined mechanism to tackle sexual harassment at the workplace is abysmally poor.

Mohan, who organises regular training workshops for company executives, says the poorest response he gets is for workshops that deal with organisational preparedness for sexual harassment cases. Top executives have often told him that they do not want to "stir things up" as participation in such workshops can encourage employees to question the hitherto accepted norms of behaviour.

Companies usually feel they have done their duty (actually it's fulfilling a legal obligation set out in a Supreme Court Order in 1997) by setting up a sexual harassment committee headed by a woman employee.

HR consultants say awareness training and clear laid-out parameters to let people know where to draw the line can easily tackle the problem. Sexual harassment is generally legally categorised into two forms. The first is quid pro quo: demand made of an employee by someone with power to hire, promote and fire.

The second form is the "hostile environment," where the employee may have suffered no tangible adverse employment action but was required to endure offensive behaviour.

Also, if some employees are talking to each other in crude terms and within earshot of somebody who feels offended, a sexual harassment charge can be made.

In a perverse way, the first Phaneesh Murthy episode, which was settled by Infosys out of court, seems to have put the fear of the lawsuit in Indian companies, especially those working in the US.

Some companies like Wipro went on to undertake an audit, put its reworked sexual harassment policy on its intranet and increased its focus on cross-cultural sensitivity training for employees.

The company has also decided to put all recruits through a workshop on how to deal with colleagues of the opposite sex.

Some HR specialists often suggest that Indian managements should follow the zero tolerance policy of their counterparts in the US.

This comment piece was first published in 2003.

But here are some figures that might dampen their enthusiasm: despite the tough rules, estimates according to one survey suggested that 80 per cent of working women (40 per cent in India) and 15 per cent of male workers in American companies experience sexual harassment at work.

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