TOPIC: ROLE OF MANAGERS (COURSE OF ACTION) WITH RESPECT TO TEHELKA, SEXUAL HARASSMENT CASE

INTRODUCTION

Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours. In most modern legal contexts, sexual harassment is illegal. As defined by the US EEOC, "It is unlawful to harass a person (an applicant or employee) because of that persons sex." Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favours, and other verbal or physical harassment of a sexual nature. Where laws surrounding sexual harassment exist, they generally do not prohibit simple teasing, offhand comments, or minor isolated incidents. In the workplace, harassment may be considered illegal when it is frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted, or when the victim decides to quit the job). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer and harassers or victims can be either male or female. It includes a range of actions from mild transgressions to sexual abuse or sexual assault. Sexual harassment is a form of illegal employment discrimination in many countries, and is a form of abuse (sexual and psychological) and bullying. For many businesses and other organizations, preventing sexual harassment, and defending employees from sexual harassment charges, has become key goals of legal decision-making.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The introductory text of the Act is:

An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;

AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;

AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace. According to the Press Information Bureau of the Government of India: The Act will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan (1997). Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan established that actions resulting in a violation of ones rights to Gender Equality and Life and Liberty are in fact a violation of the victims fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman's rights in the workplace and is thus not just a matter of personal injury. Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees. The legislative progress of the Act has been a lengthy one. The Bill was first introduced by women and child development minister Krishna Tirath in 2007 and approved by the Union Cabinet in January 2010. It was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The committee's

report was published on 30 November 2011. In May 2012, the Union Cabinet approved an amendment to include domestic workers. The amended Bill was finally passed by the Lok Sabha on 3 September 2012. The Bill was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. It has come into force and has been published in the Gazette of India, Extraordinary, Part-II, Section-1, dated the 23rd April 2013 as Act No. 14 of 2013.

THE TEHELKA CASE ON SEXUAL HARASSMENT

AS THE CASE UNFOLDED: Bangalore, November 26: The news of sexual assault levied on Tehelka founder-editor Tarun Tejpal, didnt just shake the entire media fraternity but also had the NCW and other activist up in arms. Heres a detailed report of the events that unfoldedNovember 7, 2013: Tehelka founder, Tarun Tejpal allegedly assaults a co-worker during the Think festival in Goa. November 8, 2013: According to the victims complaint, Tejpal sexually assaults her in an elevator. November 18, 2013: The victim, writes to Shoma Chaudhary, Managing Editor, Tehelka about the sexual assault. The journalist demands an enquiry into the incident and also an apology from Tejpal. November 20, 2013: Tarun Tejpal writes to Shoma Chaudhary, admits having a bad lapse of judgement. He also resigns from the magazine for 6 months as an act of penance for his misconduct. Chaudhary, adds a short note to the mail and forwards the mail to all Tehelka employees. In the note she refers to the incident as an untoward incident and says that they had responded with the right thought and action. November 21, 2013: Goa CM, Manohar Parrikar says that an enquiry will be conducted into the incident by the police officials. November 22, 2013: The Delhi police is already at Tejpals house in New Delhi while a team from the Goa police arrives later to question Shoma and Tejpal at the Tehelka office. Along with this the police also question three Tehelka employees and demand for laptops, cell phones, and data from hard disks. The journalist issues a statement saying that her family was being pressurized. November 25, 2013: Complainant submits her resignation and says that she was deeply traumatized be the lack of support from Tehelka. Tejpal moves Delhi High court for transit anticipatory bail.

November 26, 2013: Goa police records victims statement. Delhi High Court rejects TEjpals bail plea. Goa police issues an alert across the state against TEjpal, saying that he may leave the country. He went on to say that the "alleged complaint is clearly motivated, false and an afterthought with oblique motive". November 28, 2013: Goa Police, which has taken suo motu cognisance of media reports, summoned Tejpal to appear at the Dona Paula police station on November 28, while the state's Chief Minister Manohar Parrikar, closely monitoring the investigation, denied that his special interest was politically motivated. November 29, 2013: Tejpal's statement, as one-time friend Arundhati Roy pointed out, implies that the journalist he had chosen to hire is now "not just a loose woman but an agent of fascists". His anticipatory bail plea order was reserved till November 29 but Tejpal withdrew the application a day before. November 30, 2013: Tejpal wrote to Goa Police requesting if he could come to them on November 30, which was turned down and a non-bailable warrant for his arrest issued. Like every other scandal, this one too, has triggered a political war. BJP leaders are using the Tehelka issue to blunt the Congress attack on Narendra Modi in the aftermath of Snoopgate. The battle-lines have been drawn on Tejpal since before Tehelka's 2001 Operation West End, partly due to his lavish praise of the "luminous" Gandhi family. Tejpal has been booked for rape (IPC Section 376), rape by a person in a position of control or dominance (IPC Section 376(2)(k), and outraging the modesty of a woman (IPC Section 354). The conviction for rape by a person in authority carries a minimum punishment of 10 years in jail. The much-talked about Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, passed by Parliament in February and given the nod by the President on April 23, remains only on paper because the Ministry of Women and Child Development has failed to get the rules framed due to a delay in the drafting process. In the beginning, as the emails from the woman leaked, Chaudhury and Tejpal became the most dissected items on TV and in social media. It was apparent that the Tehelka team was more emotional, even amateurish, rather than professional in its responses. The team indulged in lyrical prose, using language to impress rather than express. In contrast, the woman's letters had the clarity of one clinically collecting evidence.

Excerpts from the informal email Tejpal purportedly sent the woman on November 19, 2013 a day after the victim formally complained to Shoma Chaudhury of the sexual assault The context that ill-fated evening, of our conversation, as you will recall, was heavily loaded. We were playfully and flirtatiously talking about desire, sex; you were telling me the Bob

Geldof story in graphic detail, and about XXX (her male friend), and the near-impossibility of fidelity... (You were telling me) of the aftermath of meeting me one stormy evening in my office when I was sitting watching the thunderclouds. I also want to clarify that yes, you did say at one point that I was your boss, and I did reply "that makes it simpler" but in the very same breath and sentence I said to you "I withdraw that straight away - no relationship of mine has anything at all, ever, to do with that". It was in this frivolous, laughing mood that the encounter took place. I had no idea that you were upset, or felt I had been even remotely non-consensual, until XXX (his daughter) came and spoke to me the next night. I was shocked and devastated at the time. Both because you felt I had imposed on you (which had neither been my reading or intention), and because I felt I had been totally irresponsible and foolish to have anything furtive to do with my daughter's intimate friend. At that very moment I was filled with shame, and still am. You have made it clear that I read it all wrong, and I will not dispute it, nor underplay your anger and hurt. This is easily the worst moment of my life - something ostensibly playful gone so horribly wrong, damaging of all that I hold dear in life, from people to principles. I ask you to forgive and forget it. I will meet your mom and apologise to her too - and (the male friend) if you so wish.

Full text of the email written by Shoma Chaudhary to employees soon after Tejpal decided to"recuse" himself from editorship for six months. It was carried by media organisations on November 21 Dear All, This may come as a rude surprise to many of you. There is a letter from Tarun appended to this mail. There has been an untoward incident, and though he has extended an unconditional apology to the colleague involved, Tarun will be recusing himself as the editor of Tehelka for the next six months. Tehelka is an institution he has built, and which many journalists both current and former, have contributed to in the most profound ways. Throughout our 13-year career, we have proudly articulated and tried to live by the highest standards. We have also believed that when there is a mistake or lapse of any kind, one can only respond with right thought and action. In keeping with this stated principle, and the collective values we live by, Tarun will be stepping down for the period mentioned. This is a hard time for all of us, and I hope all of you will stand by the institution.

Best, shoma

Full text of the email written by Tejpal to Shoma Chaudhary My dear Shoma, The last few days have been most testing, and I squarely take the blame for this. A bad lapse of judgment, an awful misreading of the situation, has led to an unfortunate incident that rails against all we believe in and fight for. I have already unconditionally apologised for my misconduct to the concerned journalist, but I feel impelled to atone further. Tehelka has been born and built, day on day, with my blood, toil, tears and sweat, and that of many others, against near-insurmountable odds. It has lived for and fought the big battles of our time, always on the side of the oppressed and the wronged, always on the side of equity and justice. Its voice has travelled the world and changed policy and perceptions. It has been a beacon for those who would do the right thing. Through bad, and worse, times I have protected Tehelka and its journalists from the inevitable demands of power and corporations. I have always allowed every journalist's sense of the right to flower and express itself. No one has ever been asked to do what they don't believe in. I have always held that Tehelka the institution, and its work, has always been infinitely more important than any of us individuals. It is tragic, therefore, that in a lapse of judgment I have hurt our own high principles. Because it involves Tehelka, and a sterling shared legacy, I feel atonement cannot be just words. I must do the penance that lacerates me. I am therefore offering to recuse myself from the editorship of Tehelka, and from the Tehelka office, for the next six months. You have always been stellar, Shoma, and even as I apologise to you and all my other colleagues, for this unfortunate incident, I leave Tehelka in your more than capable and safe hands. In apology, Tarun

On November 21, Shoma Chaudhury put out this statement announcing that Tehelka has now constituted a formal complaints committee

In furtherance to Tehelka's acceptance of Tarun Tejpal's recusal from editorship of Tehelka on November 20th, which followed the official unconditional apology he had mailed to the journalist concerned on November 19th, Tehelka has now constituted a formal complaints committee, in accordance to Vishaka guidelines, to be presided over by Urvashi Butalia, eminent feminist and publisher, to investigate the matter. The other members of the committee will be announced shortly. In addition to this, Tehelka will ensure setting up a formal complaints committee, according to section 4 of the Sexual Harassment of Women (Prevention, Prohibition and Redressal Act, 2013), an institutional mechanism that was sorely missing in. Shoma Chaudhury, Managing Editor, Tehelka

WAYS TO DEAL WITH SEXUAL HARASSMENT CASES

Talk to the Person Directly: When the initial sexual harassment incident takes place, ask the person harassing you to stop. If your harasser continues displaying the same behaviour, inform your harasser that you plan to file a report if the behaviour continues. Some people discontinue their behaviour once you threaten to report them. If the harasser fails to stop, you can take further action. Find Other Victims and Witnesses: Search for other victims of sexual harassment by your harasser. You may find that some other victims have filed complaints in the past. Secure the testimony of any witnesses of your incidents in writing. This helps support your claim. Inform Your Supervisor: If talking to your harasser did not stop the harassing behaviour, report all incidents to your immediate supervisor. Write a formal letter to your supervisor detailing the events that took place. Ask your supervisor for a meeting to explain the situation in person. Contact HR Manager: Even if you inform your supervisor, you should also contact your human resources manager. Human resources can inform you of the action you need to take concerning the sexual harassment incidents. The human resources manager should possess expert knowledge concerning sexual harassment and discrimination, and should be willing and able give you impartial advice. Contact any Committee dealing with sexual harassment cases: If your complaint does not result in your supervisor or senior manager taking action, you can file a charge with the Committee which investigates sexual harassment incidents in the workplace. Inform the Committee of your employer's name, the name of the offender and the details surrounding the incidents. File a Lawsuit: After you file a complaint with the Committee, you can possibly file a lawsuit. You can seek monetary damages, or try to get your job back if your employer fired you due to the incidents. If you plan to file a lawsuit, you should seek legal representation from an attorney who handles sexual harassment cases.

WHY IS A SEXUAL HARASSMENT POLICY NECESSARY?

The key to preventing sexual harassment is for employers and management to make it clear to every employee and workplace participant that sexual harassment is unacceptable in the workplace. Employers should ensure that they have in place a clear sexual harassment policy, which is effectively communicated to each workplace participant and is understood. In addition, it is important that appropriate behaviour be modelled by management throughout the workplace. A written policy on its own is not enough. A policy that is not implemented through communication, education and enforcement will be of little or no use in avoiding liability.

WHAT ARE THE ESSENTIAL ELEMENTS OF A SEXUAL HARASSMENT POLICY?

A sexual harassment policy should include the following: a strong opening statement on the organisations stance on sexual harassment an outline of the organisations objectives regarding sexual harassment a clearly worded definition of sexual harassment specific examples of sexual harassment that may be relevant to the particular working environment 5. a statement of what is not sexual harassment 6. a statement that sexual harassment is against the law 7. examples of places and times where unlawful sexual harassment may happen e.g. in the office, work conferences, work field trips etc. 8. the consequences for employees if the policy is breached 9. responsibilities of management and staff 10. information on where individuals can get help, advice or make a complaint 11. a brief summary of the options available for dealing with sexual harassment 1. 2. 3. 4.

TIPS FOR EMPLOYERS: GETTING YOUR EMPLOYEES TO UNDERSTAND YOOUR SEXUAL HARASSMENT POLICY

1. Officially launch the sexual harassment policy at a full staff meeting. 2. The chief executive officer or a senior management representative should endorse the policy and emphasise the fact that all staff are required to comply with it. 3. Email copies of the policy to employees, put a copy on the intranet and place an automatic shortcut on employee desktops. 4. Provide the policy to new staff as a standard part of induction. 5. Display the policy on notice boards and include it in induction manuals. 6. Ask employees to sign a copy of the policy acknowledging they have received and understood it. 7. Assign responsibility for the circulation and review of the policy to a specific position or area to ensure that it is widely promoted and regularly updated.

HRs ROLE IN HANDLING SEXUAL HARASSMENT CASES

Create a written policy on sexual harassment. Immediately emphasize in the policy that the company will have zero tolerance for sexual harassment in the workplace. Also state that if a complaint is lodged, it will be thoroughly and quickly investigated.

Clearly define sexual harassment so no one can claim that he/she did not know that the behaviour was inappropriate. The U.S. Equal Employment Opportunity Commission defines this behaviour as unwelcome sexual advances, request for sexual favours, and other verbal or physical conduct of a sexual nature ...when submission to or rejection of this conduct explicitly or implicitly affects an individuals employment, unreasonably interferes with an individuals work performance or creates an intimidating, hostile or offensive work environment. Include the two categories of sexual harassment which are quid pro quo and hostile work environment. Quid pro quo occurs when a supervisor conditions an economic benefit upon receipt of sexual favours and the employees rights are tangibly and adversely harmed by refusing the favours. Hostile work environment happens when a supervisor subjects an employee to unwelcome, sexually oriented conduct that poisons the work environment and/or affects performance.

Give examples of both categories of harassment and state the companys liability under both types. The company is strictly liable for quid pro quo conduct by a supervisor. It is also strictly liable for a supervisors actions under hostile work environment unless the company establishes measures to prevent the behaviour and quickly corrects this action if it does occur. It must also prove that the victim unreasonably failed to take advantage of the complaint procedures that the company did have in place. If the harasser is not a supervisor but another employee or outside vendor, the company is only liable for negligence, i.e., it knew or it should have known of the behaviour and failed to stop it.

The policy should next identify the individuals to whom a complaint can be made. It is usually the director of human resources or some other high ranking management official. It is

wise to name at least two people to contact since one may be the harasser, and the company will need a neutral party to investigate.

When beginning the investigation, question the complainant first and then the alleged harasser. Ask open- ended questions and try not to be judgmental. Give the same attention and respect to both parties.

Do not guarantee absolute confidentiality to either party but do try to keep the investigation as confidential as possible.

After interviewing the parties involved, speak to any witnesses whose names have arisen in the investigation, and reiterate that they should also maintain confidentiality to prevent hurt feelings and further damage to the workforce.

Evaluate all the evidence from every source. If the investigation is inconclusive, notify both parties that the investigation did not support the allegations and no corrective actions will therefore be taken. If the evidence, however, substantiates the complaint, take immediate steps to discipline the harasser. This may be a severe reprimand, suspension, or termination depending on the seriousness of the behaviour and the disciplinary steps required to be followed in the companys policy. Warn the harasser if he/she is not discharged that any future sexual harassment or retaliation can result in possible termination. Tell the victim of HRs decision, apologize, and promise to stop any future sexual harassment or retaliation that may occur. Do not engage in any action towards the victim that may be interpreted as punishment for coming forward.

Write a thorough report on all the findings. Summarize the allegations, responses and conclusions made. Allow both parties to read the report but do not give them copies so that confidentiality may be maintained.

Continue to monitor both parties for up to one year to assure that sexual harassment has stopped and has not reoccurred.

CONCLUSION

As a manager you have a legal responsibility to ensure your workplace is free from sexual harassment. Generally speaking, a manager can be vicariously liable for certain acts of sexual harassment, or alternatively liable for sex discrimination by not dealing with sexual harassment. The productivity and efficiency of your company will also be enhanced when your workplaces are free from harassment. If harassment is allowed to go unchecked, the employer has failed to adequately regulate what happens on the job by directing the management or shop floor supervisors or foremen to ensure that appropriate standards of behaviour are encouraged. Unchecked sexual harassment can lead to

Lower productivity and poor quality work due to the fact that employees minds aren't on the job Low staff morale and increased absenteeism An unnecessary increase in stress levels of staff Accidents due to distractions Resignations Expensive and lengthy legal proceedings As a manager you can take positive steps to prevent sexual harassment at your workplace. You will need to inform your employees what harassment is, and establish processes by which complaints are received, investigated and resolved.