What should a company do when an employee is alleged to have sexually harassed a woman at one of his previous jobs?
In the past six weeks, several companies have had to face this dilemma in the wake of India’s #MeToo movement. Nearly 50 men from the media, entertainment, advertising and other industries have been publicly called out for alleged sexual harassment. Many of these cases date back several years, and some are from before the accused men joined their current workplaces. Now, their employers must make tricky decisions. Should they respond to allegations of harassment that did not take place on their watch? Do ethical standards require them to investigate the allegations even if the law does not? What kind of action can they take?
In the absence of clear guidelines, organisations have had a variety of responses.
Last week, India Today media group said it could not investigate journalist Vidya Krishnan’s allegations of sexual harassment against Gaurav Sawant, executive editor of its flagship TV channel, because the alleged incident took place in 2003, when he was at a different company. In a statement to NDTV, India Today acknowledged that Krishnan’s claims were distressing: Sawant allegedly groped her in a car and molested her in a hotel room during a work trip when she was a 20-year-old intern and he was a senior reporter at The Pioneer newspaper. However, apart from asking Sawant to “provide an explanation”, India Today has not taken any action to address the allegations, and has not responded to Scroll.in’s questions about it.
Some companies, though, have taken cognisance of accusations from the past against their employees by launching investigations. One high-profile case involves the Board of Control for Cricket in India, whose chief executive officer, Rahul Johri, is accused of assaulting a woman in 2016, when he was the general manager for South Asia at the Discovery Network Asia Pacific. In response, the BCCI’s Committee of Administrators has issued a show cause notice to Johri and formed an external inquiry committee to investigate the matter. The committee – comprising a retired High Court judge, a lawyer and a former chairperson of the Delhi Commission for Women – has already heard depositions by two women complainants, Johri as well as some top officials of the BCCI. Johri has been sent on leave until the inquiry is over.
The Wire news website has similarly set up a five-member external committee to inquire into sexual harassment allegations against consulting editor Vinod Dua, a veteran journalist.
Other news organisations such as The Hindustan Times and News 18, have entrusted the task of examining sexual harassment allegations against their employees that date from their previous jobs to the internal complaints committees that Indian companies are required to set up by the Sexual Harassment of Women at Workplace Act of 2013.
When faced with old complaints against their employees, experts says, it’s in a company’s interest to take some action, rather than none at all.
A matter of ethics
According to the Sexual Harassment of Women at Workplace Act, women facing sexual harassment at work must file their complaint to the company’s internal committee within 90 days of the last instance of harassment. Even if the complaint is filed after the stipulated period, the committee has the discretion to admit the case if it finds the delay was justified.
The law doesn’t lay out a course of action specifically for dealing with complaints from previous workplaces. But if a complaint is made after the 90-day period, the company is not required by law to initiate an investigation.
“Strictly speaking, a company is under no obligation under the Sexual Harassment Act of 2013 to do anything in a case where neither the woman nor the man was its employee when the harassment happened and also if the alleged harassment did not take place in the Act’s extended definition of workplace,” said Vasudevan Srinivasan, director of CETC, a company that conducts workshops on the prevention of sexual harassment at workplaces. “Whether or not to act is down to each company’s judgement call.”
However, he added, “Purely from the perspective of propriety, the company could choose to investigate the allegations, in order to make it clear that such behaviour will not be tolerated in the organisation. This would only enhance the company’s credibility. If there is an allegation, it would be wise for the company to address it in a way it deems appropriate to fail-safe its reputation, and to create a safe work culture.”
It is about taking an ethical decision, which is always subjective, the lawyer Nandita Saikia noted. “But ideally, companies that have been talking endlessly about sexual harassment should look into such complaints,” she said.
What action should be taken?
Once a company has taken cognisance of a past complaint against an employee, how should it determine what action to take?
In a Facebook post on October 14, the filmmaker Nishtha Jain accused Dua of making lewd jokes during a job interview, stalking her and trying to grab her in 1989. Dua has denied the allegations.
The Wire set up an external inquiry panel to look into the complaint, explaining in a statement why it chose this course of action: since the alleged harassment took place before Dua joined the company, its internal complaints committee had no jurisdiction. Moreover, it wanted the proceedings to be conducted by “persons of unimpeachable integrity and impartiality”, the company said, and so invited a panel of former judges and legal experts to investigate the matter.
At Hindustan Times and News 18, the internal committees are looking into allegations of past sexual harassment against their employees.
Hindustan Times political editor Prashant Jha stepped down from his role last month after a former reporter at the daily accused him, on Twitter, of sending inappropriate messages. The newspaper then announced its internal complaints committee will investigation the allegation.
Subsequently, Scroll.in has learnt, another woman journalist who is a former colleague of Jha from a previous workplace submitted a statement directly to Hindustan Times detailing sexual harassment allegations against him. Jha did not respond to Scroll.in’s request for comment. However, in an email, Hindustan Times confirmed its internal complaints committee was investigating the matter. “Pending investigation, Mr Jha has been taken off his managerial roles in the organisation,” a spokesperson for the newspaper said.
Another journalist who has faced an internal inquiry over allegations from a previous workplace is Anurag Verma, now at News 18. He was accused of sending lewd messages to women while at Huffington Post. A spokesperson for Network 18, of which News 18 is a part, said, “The actions attributed to Anurag did not pertain to our workplace and were therefore outside the ambit of the company’s PoSH Policy. Nevertheless, we have investigated and dealt with the matter under our code of conduct rules and taken suitable action as per our policy.”
Whether a company chooses an internal or external committee to inquire into old allegations may depend on the severity of the complaint or even its resources. However, a committee does not necessarily need to conduct a formal investigation.
“Committees can also give women the option of mediation or conciliation,” said Elsa D’Silva, chief executive officer of SafeCity, which conducts training for corporates on sexual harassment. What is important, D’Silva added, is for companies to show some solidarity with #MeToo, given how difficult it is for women to publicly share stories of sexual harassment. “The climate is such that if a woman posts her story on social media, companies should encourage her to file a formal complaint,” she explained. “And committees should hear the woman out and give her the option of mediation.”
Another question that companies have to address is whether they should suspend or even fire an employee accused of sexual misconduct at a previous job. Most companies suspend the accused employee so that the investigation can be carried out smoothly. Companies may also need to factor in the safety of other employees in the presence of an alleged perpetrator.
In the statement about its proceedings against Dua, The Wire listed a range of considerations that led it to suspend his video show. But since Dua did not supervise any other employees and there had been no other complaints against him, there was no question of suspending him. The Wire had drawn public criticism for allowing Dua to air his show in the week after he was accused of harassment. In response, the company claimed that it could suspend him on the grounds of preventing any prejudice to the outcome of the investigation only after the external committee had been formed, which happened over a week after the allegations were levelled. Now, depending on the outcome of the investigation, the company will decide on whether to terminate Dua’s services.
With additional reporting by Nayantara Narayanan.