Author Name:   naina kapur

I am often asked what difference, if any, have the Supreme Court directions in Vishaka made to workplace sexual harassment. Difference is something that happens only because those who are receptive make it happen...

Paving the Way - Judging Workplace Sexual Harassment

I am often asked what difference, if any, have the Supreme Court directions in Vishaka made to workplace sexual harassment. Difference is something that happens only because those who are receptive make it happen. One such instance is a 2010 judgment of the High Court of Delhi which should have drawn much more attention in the direction it paves for other courts and complaints committees in understanding sexual harassment at work.

Dr. Punita Sodhi, a highly qualified eye specialist, worked as Assistant Professor in Ophthalmology at Lady Harding Medical College (LMC) under the Ministry of Health & Family Welfare (MHFW).

Upon qualifying she joined the Council for Scientific & Industrial Research at Safdarjung Hospital where she eventually came to work under Dr. K.P.S. Malik (HOD).

That is where her troubles and her case began. Dr. Malik was aware that  Dr. Sodhi’s husband was on an outstation job. According to her, on one pretext or another Dr. Malik looked for opportunities to get close to her, which included calling her to assist in surgeries when it wasn’t required. In her words, the atmosphere at Safdurjung became “vitiated” by Dr. Maliks behaviour. Like many women, Dr. Sodhi opted for a position elsewhere (in this case, Rothak). But the long distances, a husband who was permanently posted out and two small children to raise, forced Sodhi back to Safdarjung. Her troubles intensified.

In his ongoing attempt to make her life uncomfortable, Dr. Malik adopted several ways to harass Dr. Sodhi. He issued false memos about her work, sought her termination, gave wide circulation of his views to senior staff members and even accused her of negligence in the case of a patient whom she had in fact cured. In 2007, Dr. Malik clearly crossed the line and Dr. Sodhi filed a complaint of sexual harassment to the Medical Superintendent.

What makes Dr. Sodhi’s case unusual is that she took charge of it from the outset. She requested the transfer of Dr. Malik citing his ongoing presence as a “health and safety problem” and one which was disadvantageous to her ongoing employment. All of which were consistent with the law. A counter-complaint promptly followed. Dr. Malik chose to accuse Dr. Sodhi of academic fraud and of misrepresenting herself in her publications as Head of Department.

Closing ranks, the MHFW order that Dr. Sodhi, and not Dr. Malik be deployed elsewhere. In their ongoing indifference to the law which required a sexual harassment complaints committee be headed by a woman, have 50% women members and engage a 3rd party expert, MHFW instead constituted a Committee of three doctors. Its mandate? To examine both the complaint and counter-complaint together. Protesting the insensitivity of such a move, Dr. Sodhi invoked the National Commission of Women (NCW) who shot off a letter to LHC and the MHFW insisting on an inquiry compliant with the Vishaka law.

A committee was reconstituted
This time it was made up of persons junior to Dr. Malik. That despite a 1999 office memo of the Dept of Personnel & Training which had clarified that committee members must be senior in rank to an accused person. Over the next one year, the NCW sent three additional letters for an appropriate inquiry committee to be set up. Turning a blind eye to the law, the MHFW actions were exactly opposite -
• The same committee continued to hear the complaint in Dr. Sodhi’s absence, knowing full well it was a defective committee.
• Dr. Sodhi was chastised both for questioning the validity of the committee and for threatening legal action.
• Of the 47 instances of sexual harassment cited by Dr. Sodhi, the Committee responded only to one– an inappropriate physical gesture in the operation theatre. An occurrence which the Committee dismissed outright.

Adding insult to injury, the MHFW then issued Dr. Sodhi a show cause notice as to why she shouldn’t be disciplined for “false accusations”. Meanwhile, after hearing the counter allegations brought by Dr. Malik, the same committee, without batting an eye, admitted his complaint.

Every attempt was made to suppress Dr. Sodhi’s concerns. All because she objected to a senior doctor for inappropriate behaviour on 47 occasions and then, complained about it. Fortunately for her, when it all came before the court of Justice Muralidhar (Delhi High Court) , he found in favour of Dr. Sodhi on at two key counts- that the MHFW persisted with a Committee it knew was defective and, more seriously, that the approach of the Committee in conducting a comprehensive enquiry in the sexual harassment complaint was fundamentally flawed. More than the conclusions, the reasoning is what merits our attention.

Defective Committees
Vishaka requires all workplaces to set up committees which are chaired by a woman, have 50% women members and include a third party expert on the issue. The stubborn frequency with which this simple yet critical legal requirement is discreetly abandoned by workplaces has often reduced the most harmful conduct to a farce. In Dr. Sodhi’s case, the MHFW sidelined its legal obligation with the claim that its committee members were sufficiently “senior and experienced doctors who had no axe to grind against Petitioner.”

Doctors experienced in the wellness of their patient are certainly not on par with responding to rights violations of women employees- even though both are concerned with health related issues. It’s like asking a mechanical engineer to do a software engineers job. It’s a non-starter. Nor does “not having an axe to grind” figure as a defining criterion for an effective committee. Indeed Committees must be perceived to be fair in their conduct which is why Vishaka specifically provided for a third party or Ngo well versed with the issue and who would transcend both pressure and bias.

Sabotage of the complaints mechanism requirement is not an uncommon practice. And the result is inevitably biased, as was evident from the adverse inference drawn by the Committee against Dr. Sodhi because she rightfully refused to appear before a defective committee. Why is that?

In part it stems from a widely held belief that an ‘employer’ can get away with it. Mostly it rests on a realistic perception that many women still lack the courage to complain. Both reasons fail to appreciate the innovative trust Vishaka assigned to workplaces. Shifting the onus of responsibility from the criminal justice system to employers and others in positions of trust to meet workplace human rights concerns required a huge leap of faith. One that counted on employers to own responsibility for cleaning up the workplace.

When organisations subvert that responsibility, its a breach of trust. And to what end? Having dragged out its subversion over three years, what purpose did the MHFW actually achieve? None. The subsequent vigilance case against Dr. Sodhi failed. Persistent to the bitter end, the MHFW still attempted to discharge her. A discharge which the Central Administrative Tribunal eventually discredited as bad in law. Justice Muralidhar then compelled the MHFW to direct re-constitution of the Committee. When subversion surfaces it comes at a cost. It taints an organisations reputation, demoralises its workforce, hampers performance and often destroys the mental and professional well-being of the person who was already harmed. Even where none of this matters to an employer, and to some it doesn’t, then it compels us face a fundamental workplace ethic– one where discriminatory practices defer to a culture of pain over healing.

That type of culture invests time and energy in the counter-claim strategy to which an accused will resort to deflect sexual harassment complaints. Highlighting this tendency, Justice Muralidhar cites examples. In one instance, a woman working as a junior assistant in the Fire Department complained of sexual harassment by certain officers. A counter claim filed by the two officers alleged that the woman was insulting the Divisional Fire Office and that “she compelled the office Superintendent and the Assistant to take her to the cinema...” In response, the Department imposed a punishment on the woman, postponing her increment dues for 3 years. As observed by the Madras High Court in that case- “it is a classic case where the complainant has become the accused and the accused became the complainants.” A fresh inquiry committee was directed and the punishment nullified.

Counter-allegations serve to taint a complainant’s credibility, deflect the real issues at stake, exploit power, and allow an orgnisations reputation to be used as a shield against any finding of misconduct. A pattern which characterises most sexual harassment complaints in Government departments where a senior level officer is the accused. Dr. Malik had widely circulated his allegations against Dr. Sodhi in academic circles damaging her reputation. The judge admonished the Committee for failing to make any effort to ascertain the factual truth of his claim. Taking the Committee’s neglect to its logical conclusion, Justice Muralidhar paved the way for Dr. Sodhi to seek additional remedies including damages for having to “needlessly face the trauma of having her reputation tarnished.”

A Social Context Approach
Questioning the over-all approach of the Complaints Committee, the judgment offers a well- informed analysis of the nuances of sexual harassment. Sexual harassment is a form of sex discrimination. It is often projected through unwelcome sexual advances, requests for sexual favours and other verbal, physical or non-verbal conduct of a sexual nature. This definition is well established in Vishaka as well as in International law. To illustrate the seriousness of the point, Justice Muralidhar draws upon the European Parliament, the Equality Act of the UK, the Equal Employment Opportunity Commission of the U.S., the Supreme Court of Canada and the U.S. Court of Appeals. Interestingly, all are expansive in their treatment and understanding of sexual harassment. Each lays emphasis on the purpose or effect of the offensive conduct on another’s dignity. Impact not intention is what counts. In other words, it’s not enough to say “Oops. I didn’t mean it.”

When we shift our sights from criminal law to human rights, our emphasis also shifts. Decisions no longer rest on linear assessments of ‘proof’ rather; they look to the social context in which such violations occur. That sexual harassment often occurs in a relationship of unequal power becomes central to assessing a complaint. Responsibility too, is no longer confined to an individual perpetrator but is to be borne by the institution or other person in a position of responsibility. Employers naturally need to take reasonable steps to prevent sexual harassment at the workplace or otherwise act to terminate ongoing harassment. If they don’t, then that lapse can be detrimental to a work environment leading to negative job related consequences for which employers/institutions can then be held to account.
Relying on this wide canvas of information including CEDAW (the Convention on the Elimination of Discrimination Against Women) which recognises various forms of sex based harassment, the Court found that the language in memos and letters issued by Dr. Malik which questioned the integrity and competence of the Dr. Sodhi were clearly “abusive.” Yet none of these instances were even considered by the Committee. According to the Judge, the Committee could not be “limited to the complaint ...that Dr. Malik attempted to touch her at wrong places while in the operation theatre... Incidents of sexual harassment ought not to be viewed in isolation. The other parts of the complaint are as relevant in determining whether there was any persistent conduct of the perpetrator....” As expressed by the Supreme Court of Canada, - “discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or, the employment opportunities available to, employees on the basis of a characteristic related to gender.”

Justice Muralidhar further raises the bar for workplace discrimination and sexual harassment cases by modifying long held patterns which discriminate against women who complain of workplace sexual harassment. He introduces a standard little explored in Indian law- one which prioritizes the complainant’s perspective over a stereotyped idea of sexual harassment. “If we only examined whether a reasonable person would engage in allegedly harassment conduct, we would run the risk of reinforcing the prevailing level of discrimination....” the Judge reminds us. In a rare yet poignant judicial grasp of gender and the relevance of life experience, he adds-
“We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires...an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a `great figure' or `nice legs.' The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement. ... Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”

Through refreshing insight and a modern understanding, Justice Muralidhar does not hesitate to hold-

“..a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.”

In the end the judgment calls upon complaint committees who deal with sexual harassment to understand the multi dimensions of sex based discrimination at work and “not narrowly focus only on certain acts that may have been the trigger for a series of acts constituting sex based harassment or discrimination.” Taking a lead from the US courts, Justice Muralidhar imposes a requirement on committees to focus on the perspective of a complainant. On this basis he found the report of the Committee was both “limited and narrow” and had failed to consider the context of the complaint. For that reason the Court dismissed the report and directed a fresh inquiry.

When courts inform themselves beyond the four corners of a law to the social context of an issue, their decisions pave the way for others. They become mature platforms from which stereotypes and prejudices can be challenged rather than reinforced and perpetuated. A contextual perspective on sexual harassment simply reminds us of Vishaka’s original purpose as expressed in an earlier High Court judgment- “The aim of Vishaka was to ensure a fair, secure and comfortable work environment, and completely eliminate possibilities where the protector could abuse his trust and turn predator, or the protector-employee would insensitively turn a blind eye.”
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# Vishaka & Ors. V. St. Of Rajasthan & Ors. (1997) 6 SCC 24; for a detailed background on the Vishaka case, see http://www.nainakapur.blogspot.in/2009/03/aspirations-of-law_03.html
# Dr. Punita K. Sodhi v. Union of India & Ors. , W.P. (C) 367/2009 & CMS 828, 11426/2009
# For more information on the innovative way in which Vishaka drew upon domestic application of International law, in particular the Convention on the Elimination of Discrimination Against Women (CEDAW), , refer to an analysis by Avani Mehta Sood at http://reproductiverights.org/sites/default/files/documents/media_bo_India1215.pdf at Chapter 6, pp.59-65, 2006.
# U.S. Verma, Principal, DPS v. National Commission for Women 163 (2009) DLT 557

The  author can be reached at: naina.kapur@legalserviceindia.com

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