10 instances of biases which may impact ICCs while investigating complaints under POSH Act, 2013
While legislation mandates that one external member must be a part of the Internal Complaints Committee, the rest of the Committee members are from the workplace in context. While there are advantages to this, there is a corresponding pitfall, as the members of the committee may not have the level of detachment required to decide upon the complaint fairly. One of the benefits to having employees in the ICC is that it protects the interests of the company as well as the employees concerned. An internal dispute redressal mechanism prevents any harm to the repute of the company, and allows the aggrieved employee an opportunity to seek action internally without facing the danger of prejudice at the workplace or social stigma. Sexual harassment cases are often influenced by individual’s perception of the behaviour or actions they faced. Such incidents can become deeply subjective matters when the gravity of an offence is to be determined with regard to the unique contingencies and minute problems that can arise in such matters. Thus, while the fact that the members of the committee have a familiarity with the workplace environment and know the employees may be beneficial in terms of the speed and effectivity of the solution arrived at, it can also become a worrisome hurdle in the way of impartial justice.
In any organisation, it is quite likely that both the complainant and the respondent may be known to the members of the ICC or even be close to them. Further, employees at the same workplace may entertain notions about each other, through observation, rumor or structure of their work relations that may be wholly unsupported by fact. Clearly, this poses a very real challenge to the objective of the ICC’s and thus, it becomes all the more important for the ICC to avoid any biases that may subconsciously arise or affect the outcome of the proceedings they undertake.
Outlined below are some of the instances wherein prejudices may unduly influence justice, and care must be taken that ICC members are trained to consciously avoid these as far as possible.
Personally favourable impression prejudicing the inquiry
If members of the ICC personally have a favourable view of either of the party’s it can lead to favouring of the version of events given by them, be it the complainant or respondent. For instance, they may refuse to believe the respondent’s guilt because they themselves have never experienced negative behaviour or unprofessional conduct by the respondent, or correspondingly, believe the complainant’s version simply because they think they know the person well and hence, assume the truth of the allegation.
Allowing the history of past relationships or rumours about the complainant influence the committee’s assessment of the truth of the allegation.
The ICC must consciously endeavor to not let any such notions unfavourably tilt the inquiry.
Construing manner of dressing, or conversation as evidence of the complainant’s nature and using this to decide that the complaint is false
Or assuming that the complainant may have been consenting at the time.
Assumption that the male is guilty
It is quite common for the ICC to take into account the fact that women may be at a disadvantage because of the social structure of gender relations within which we operate. There is a tendency to give the benefit of doubt to the woman, rationalising it by mentioning the difficulties a woman faces and the courage she requires to speak up. However, this often leads to dangerous assumptions wherein the ICC believes the truth of complaints against male respondents without the level of scrutiny required, which leads to exploitation of the redressal mechanism. It is important to recognise that with changing contexts, and as female employees join the workplace on increasingly equal terms-the presupposition of being in a weaker position may not stand true and the ICC must avoid this presumption. Not making such assumptions is good for both males and females as it acknowledges that many female employees are empowered and do feel free to speak up without any unnecessary victimisation and protect men from being adjudged guilty without evidence.
Characterization on the basis of gender as excuses
Often, a pattern of behavior traditionally attributed to the gender of the complainant or the respondent may be used to justify arbitrary conclusions, or to explain their otherwise unacceptable behavior. For instance:
- Normalising the notion that men are often loud and may use abusive language in fits of anger,and that this doesn’t constitute harassment.
- Saying that it’s well known that men often drink and can’t handle their alcohol, and the female employees must make an effort to stay out of their way to avoid untoward incidents.
- Assuming that men or women with families and children are less likely to be perpetrators of sexual harassment or make false complaints.
Insensitivity to the diversity of the workplace
It is vital to keep in mind the fact that each workplace consists of employees from different genders and socio-economic backgrounds, in addition to generational divide. Further, the hierarchy of workplace relations also creates differences within the workforce. Differences in cultural standards therefore, need to be taken into account by the ICC when deciding whether harassment has occurred.
Making hierarchy of workplace relations relevant in deciding the complaint.
As most members may be senior employees at the workplace, there could arise an affinity to trust the account of the person with whom they have interacted with more, be it the complainant or the respondent- resulting in justice being available more readily to those in higher or managerial positions. Further, the complaints mechanism may be completely out of reach for employees at the lowest grade of employment, such as service staff in a corporate office, although they are equally susceptible to workplace sexual harassment. Even when they manage to approach the committee, there may be a bias against them out of mutual alienation and lack of understanding of the different workplace dynamics that these sort of employees experience. Essentially, the ICC cannot let power dynamics influence their investigation of a complaint.
Trivializing the harassment
There may be a tendency to view harassment as legitimate or serious only if it is physical; and to ignore complaints of non-verbal harassment. There may also be attempts to counsel the complainant to withdraw the complaint in light of how minor the grievance is. This is something the ICC actively needs to avoid. It must acknowledge the discomfort or hurt caused to the employees and give due consideration to all allegations that come before it regardless of the relative seriousness.
Assuming consent on the basis of circumstances
In sexual harassment cases, it becomes of ultimate importance to decide whether or not there was consent, and what the nature of the relationship consented to was. Often, when circumstances or the account of those somewhat familiar with the matter make the matter of consent dubious, the ICC must take care to not assume that there had been consent simply on face value. The nature of the relationship between the employees must be taken into account and the question of consent must be contextualized.
Disregarding generational divide
Increasingly, new entrants to the workforce have very different perceptions of ideal work ethic or professional conduct to the older generations of employees. The shift in workplace culture to more informal and relaxed, throws up new challenges for the ICC in determining sexual harassment allegations. The changing workplace dynamics mean that it is harder to differentiate harmless informal interactions from sexual harassment; and the differing standards by which different generations of employee judge conduct mean that the ICC must actively attempt to take these differences into account.
Companies and Internal Complaints Committees today are mandated to ensure that their employees recognize subconscious gender bias and prejudice, which will eventually help to eliminate the inequality of power relations and lack of understanding that lead to incidents of harassment. It is admirable that companies and ICCs are taking initiative, for this is the primary way to ensure harmony in workplace relations; but sensitization can only go half the mile in achieving this. Another vital factor that will influence the way employees behave, is the mannerisms and ethics displayed by senior management and the members of the ICC themselves. Every member of the ICC, once appointed, therefore has to take special care in presenting the best version of themselves and ensuring that their own conduct is professional and appropriate to the workplace. The only way the ICC can inspire the trust of employees is by representing an ideal standard of work ethics and by seeming approachable, sympathetic,and likely to seriously and fairly consider a complaint.
Author: This post has been submitted by Ishrita Bagchi, as part of her assignment with Ungender Insights. Ishrita Bagchi is currently a student of National Law University, Jodhpur.