Perhaps a more contentious of the psychosocial aspects of the process under POSH Law is the Impact of the inquiry process on the Respondent. Usually when this topic is broached, we receive responses like “Why should that matter”, “They called it upon themselves” or “They deserve it, because of what they did”. However, while yes, this is a Law to protect and empower people who are vulnerable or have experienced sexual violations and one has to adopt an empathetic approach that supports protected populations, it is equally important to bring in a sense of neutrality and sensitivity while interacting with the Respondent.
Understanding and making space for this idea as IC members, HR, people managers and workplace leaders is just as important and relevant, especially given the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Rules 2013 (7.4) that call for maintaining objectivity and upholding the principles of natural justice during redressal.
This simply means that we as stakeholders need to be able to bring our unbiased and empathetic selves forward and ensure that we are able to support the wellbeing of all persons who are part of the process.
Where do we begin?
As stakeholders of this process, decision makers and IC members, it becomes important to humanise the process, and consciously develop the understanding that the basis or core of inappropriate behaviour at the workplace is not linked to specific people, but to flawed and patriarchal systems, and inequitable perspectives, all developed as a part of social conditioning. This means that no person is inherently bad or deserves to be shunned, or “punished” through the manner in which questions are asked or disdain is communicated during the process itself.
The first step would be to accept that there is a mental health impact to having a complaint of sexual harassment filed against a person, irrespective of whether or not the person is guilty of the act.
🔰What can impact look like?
On receipt of a summon for the first meeting:
Receiving summons for a complaint of sexual harassment may cause feelings of anxiety and fear to enter into a person’s mind space. Fear may also attach itself to the outcome of the process, the impact to one’s relationships and reputation at the organisation and socially as well. Reminding oneself that there is an impact to emotions is crucial, because of certain bias that may emerge in engaging in conflict where a person is accused of transgressing another person’s boundaries or causing sexual harm to another.
On receipt of the sexual harassment complaint filed against them:
In our experience, when a complaint filed is made known to the Respondent, there may be a range of responses. Some persons against whom complaints are raised may respond by trying to explain themselves, reinforcing the acts were consensual or by apologizing for the crossing of boundaries. However, in certain other situations, we have also seen persons deny, reject the accusations or say that it’s a malicious complaint. They may even resort to threats and power plays to have a favourable outcome to the redressal process.
While some of these may be unsavoury and not preferred, we need to remember that there is still a psychological impact that they may be experiencing and responding from a space of fear, entitlement, and not knowing a better way to respond.
Some people may also experience feelings of guilt, remorse and may not know how to process these emotions or take accountability for their behaviour given especially if the Respondent is male, as often the patriarchal social conditioning of gender roles may create challenges in experiencing and expressing certain emotions like guilt, remorse, sorrow, etc.
On meeting their colleagues and leaders as IC members:
The internal IC members are likely to be known to the Respondent either due to past or current working relationship or know of the IC members as part of the leadership. Having to face them for the inquiry process can not only be intimidating but also bring in a sense of being judged and colour their perception regardless of the outcome of the inquiry process. Often, the Respondents are concerned about the different stakeholders at work becoming aware of the complaint and the professional ramifications it may have. Consequently, we have seen Respondents making attempts to spotlight on their tenure and professional achievements in the context of inquiry.
During Conciliation and Inquiry:
While the idea that conciliation is not an admission of guilt is clear, it may not seem that way to the parties. Particularly if the terms of conciliation include aspects of apology for the discomfort caused, it may seem like an admission of guilt and an acceptance of the moniker of being a ‘perpetrator’ or ‘abuser’. These thoughts even during conciliation may have an adverse impact on the wellbeing of the Respondent.
The process of Inquiry in itself could be very traumatic to the Respondent, having to be questioned not only by the IC but also by family and friends during pendency of inquiry, especially if the interim reliefs have been granted in the form of change of location, work from home or suspension. Further, the cross examination meetings are precarious situations to be in as it seems as the last opportunity to present their innocence or defence. This may involve asking questions that can be hurtful to the other person, show them in poor light and being very damaging to their relationship. The constant dilemma to ask or not to ask questions can be a stressful experience. Moreover, during the witness statements, people known to be trusted or team members may give evidence against the Respondent, creating a sense of uncertainty and fear particularly regards a continuing working relationship with the witness, and a possible breach of confidentiality.
During the course of the inquiry, IC members’ inherent biases and judgments can be observed as well. Few examples of behaviours that we have noticed in our experience is adoption of hostile body language, constantly interrupting the respondent while they are presenting their narration of events, using accusatory tone. . This may lead to a person shutting down, or experiencing a sense of helplessness, or experiencing a certain despair, fear or uncertainty if the complaint will be handled objectively, that the opportunity to present one’s side of the story will be present or that the story is actually heard. It may feel like the process is a farce and a decision has already been reached along with the label of guilt being attached.
The biggest impact would be the impact of the label itself. The labels of “Perpetrator”, “Pervert” “Abuser” or “Harasser” can be extremely stigmatizing and may cause the perceptions & behaviour of those in the environment of the person to change. This can have long lasting impact to their relationships, future opportunities and consequently result in internalising the shame, guilt and label itself. This can have far reaching impact on one’s sense of self.
Often the communication of label or changed perception of the Respondent isn’t overt, but very subtle and covert. It may be communicated non-verbally through facial expressions, body language and tonality employed.
The recommendations can also cause very visible shifts in one’s professional journey, which may cause damage to self-worth and reputation and give rise to speculation amongst team and co-workers.
There may be an exacerbated impact to the Respondent when the complaint filed against them is malicious in nature. While malicious complaints are not the norm, they are not unheard of in this context.
🔰How does impact emerge during the process?
Signs of impact could include extreme stress, confusion, fear.
This stress could impact memory and recall, and show up during recording of statements as well.
This may also show up in terms of anger, open hostility, and power plays as well.
The important thing for IC to keep in mind, is to try and avoid making meaning of these behaviours to conclude on the certainty of guilt on the part of the Respondent.
🔰How do we respond?
It’s important to set out certain protocol and measure to keep the sanctity of the process in place and ensure a fair and just system is being followed.
These measures may look like:
– If impact is noticed during the process, it’s okay to check in with the Respondent, offer therapeutic support through referrals, and even take a pause in the process to take a moment to drink a glass of water or collect themselves
– Not condemning a person when the complaint comes in
– Ensuring neutrality and empathy is maintained through written, verbal and non-verbal communication
– Providing equal opportunity even in terms of access to counselling services or EAP systems
– Keeping bias in check as a group or individual IC members through dialogue, and feedback
– Keeping the discussions rooted in facts and objective data and not opinions and assumptions.
– Ensuring that confidentiality is maintained, and office gossip that bubbles up to the attention of the stakeholders are addressed swiftly and sensitively.
Bringing empathy into spaces of redressal of sexual harm and violence is challenging. And yet if we employ a lens of rehabilitation, restorative justice, and the belief that the person is not inherently the
problem, we may have space for true change to occur. Of course, all of these need to also provide space for the safety and empowerment of the complainant through redressal and counselling support.
In identifying the possible influences of existing social structures on inappropriate behaviour, it is important to assert that there is no justification for sexual harm and violence. It is absolutely not okay, and there is no space for excuses when talking about the same. However, contextualising the issue to be about the behaviour in question, and its motivations and influences is important as well for us as stakeholders.