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Sexual harassment and consensual flirting: The Firm video review


This week's The Firm asks whether we are doing too little too late about sexual harassment as the Protection Against Sexual Harassment of Women Bill still awaits enactment long after the government promised to put sexual harassment laws on the books 13 years ago.

It seems wherever you look these days headlines abound with reports of cheating politicians and disgraced businessmen. Over the past few months we have witnessed the resignation and firing of top management following sexual harassment allegations; most recently publishing wiz David Davidar of Penguin, Mark Hurd of HP and possibly Pradeep Shrivastava of Idea Cellular, as The Firm reports. In this environment it is easy to forget that sexual harassment in the workplace is a very real problem.

With little legal protection, a victim's recourse is often limited to employer policy and procedure. In the Vishaka judgment the Supreme Court of India (SAT) encouraged this by mandating a sexual harassment committee for each company. Some companies have headed SATs request.

Currently, there is no law against sexual harassment in India. Victims can bring suit using provisions in tort law, the Indian Penal Code and labour law. But as Firstsource India president-HR and country manager Aashu Calapa points out: "Considering the social taboos still associated with sexual harassment and the long pendency in courts, these provisions have never been successfully invoked."

In fact, the Supreme Court's 1997 decision in the Vishaka judgment is the only real case law on sexual harassment, which acknowledged for the first time that sexual harassment was a violation of human rights.

According to company HR heads, companies must handle sexual harassment complaints on a case-by-case basis.
<div style="float: right;"><strong>The Firm, 27 August 2010 video (6 parts, ~40 minutes):</strong>
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Infosys director and head-of HR TV Mohandas Pai advised: "It is not a checklist of 1, 2, 3, 4, 5. You do have a checklist but there are broader issues to be taken into account. That's why we have an independent body which investigates, an independent body which adjudicates and then an appeals process so that all issues are captured".

Companies face challenges in establishing and enforcing sexual harassment policies. In the case of Infosys, even with a sexual harassment policy, changes in management structure to ensure a direct line of responsibility has to be implemented.

Another issue brought up during the interviews: Should senior management be held to a higher standard than junior employees?

Asha Bajpai, who is the chairperson at the Centre for Sociolegal Studies & Human Rights Tata Institute of Social Sciences, thought so, noting: "Sexual harassment is a power game in many situations. Not all, but many of the harassers are people in positions of power and authority. And when we look into issues of sexual harassment, we look into the totality of circumstances."

Problems may even arise in the case of consensual relationships between senior management and their junior colleagues. As Calapa warned: "If a supervisor is having a consensual relationship with someone in his team, he is treading on dangerous ground. It could be a consensual relationship but its something which is typically not done in most companies."

Some companies are taking a hard line when it comes to sexual harassment and no one is immune. As the show pointed out, even though HP's global CEO Mark Hurd was well recognized for substantially improving HP's profitability, the board still asked him to step down when accused of sexual harassment by another employee.

Companies need to seriously enforce internal sexual harassment policies and the ability to earn a livelihood free from sexual harassment is a fundamental right. In many foreign jurisdictions existing laws on sexual harassment are strict and subject offenders and employers alike to severe penalties. In the United States in 2009 alone, the Equal Employment Opportunity Commission generated a total of USD $51.5m in compensation in over 12,000 sexual harassment cases.

In India, however, the government has yet to enact official sexual harassment legislation. The Protection Against Sexual Harassment of Women Bill was introduced in 2005. As The Firm pointed out this week, it was then amended in 2007 and apparently again in 2010, though most experts are unable to state exactly when the latest amendment was made.

With an ever-increasing number of women entering the workforce each year we must question when, if ever, the Indian government will respond. How long will the burden lie with varying and sometimes inconsistent corporate policies? It is up to us in the legal community to push for the enactment of these laws and the protection of all our citizens' human rights.

Meanwhile, Legally India wonders what, if anything,  the firms themselves have been doing to clean their own backyard?

Click here for a full transcript of the show, which was first aired on Friday 27 August 2010.

In the second and unrelated part of the last episode of The Firm, Linklaters India head Sandeep Katwala talks about what the new Takeover Regulations might mean for foreign acquirors and whether warrants deserve their own regulation.

This is part of a new Legally India series that will review and condense the latest episodes of CNBC-TV18's The Firm.

Legally India is not affilliated with CNBC-TV18 or The Firm.

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