The possibility of abuse of the complaints committee mechanism under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 by unscrupulous employees is a worrisome issue for the members of the ICC. It is important for the ICC to understand what evidence should be taken into account while adjudging the complaints.

The Equal Employment Opportunity Commission in the USA has laid down a guideline on appreciating evidence of sexual harassment complaints. The Internal Complaints Committee may take reference of the same to come to a decision, especially when there is no prima facie evidence to prove or disprove the allegation. The ICC can take reference of the following points:

• Only unwelcome conduct of sexual harassment is covered under the law. The word unwelcome need to be construed “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”
• In case there is conflicting evidence with regard to the question of welcomeness, the ICC should look “at the record as a whole and at the totality of circumstances . . . .”
• In case the ICC has doubts on credibility of the parties or have sufficient indication that there is a possibility of some indication of welcomeness, the ICC should take into account whether the complainant made a contemporaneous complaint or protest.
• When a contemporaneous complaint or protest has been made, the claim of the complainant will be considerably strengthened and also provide persuasive evidence that the sexual harassment in fact occurred as alleged.
• During the inquiry, the ICC should take into account the detailed evidence of the circumstances and nature of any such complaints or protests. It will be relevant fact to take into account whether the complainant has reported the incident to the higher management, co-workers or others immediately after the incident.
• In case there was a prior consensual relationship between the parties or the accused may have some reasons to believe that the advances will be welcomed, it will be relevant to understand whether the complainant communicated to the accused that the conduct is unwelcome.
• In case there was a delay in filing the complaint or failure to file a complaint, the ICC should take into account, whether there was any reasonable ground for the delay and understand the reason behind it. The relevancy of such delay will depend upon “the nature of the sexual advances and the context in which the alleged incidents occurred.”
• When the ICC is handling a case where the question is on welcomeness of the incident, the ICC should take into account whether the victim’s conduct is consistent, or inconsistent, with her assertion that the sexual conduct is unwelcome.
• To identify whether the alleged conduct is of a sexual nature, the ICC should adopt the “reasonable person” standard.
• Mere submission of the complainant to voluntary sexual conduct will not defeat a claim of sexual harassment. The ICC in its inquiry should observe ” whether [the complainant] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” In case, the complainant has expressed her unwillingness, the ICC should carefully judge its relevance against other evidences.
• The ICC should take into account whether the complainant welcomed the sexual conduct by acting in a sexually aggressive manner, using sexually-oriented language, or soliciting the sexual conduct. However, mere wearing of provocative clothes by the complainant and publicly expressing sexual fantasies is not per se inadmissible as defense by the accused but the ICC need to carefully judge the issue to find out the truth.
• If the complainant often uses sexually explicit language, it won’t negate a claim for sexual harassment altogether. Though, such evidence might be helpful in proving certain acts, like sexual comments from others are welcome, but more extreme and persistent sexual conducts, including comments, sexual assaults or “quid pro quo” harassment are not considered to be “welcomeness” from the complainant, except when the same is proved otherwise.
• In proving “welcomness”, any past incident and conduct towards other persons are irrelevant, the “welcomeness” must relate to the alleged harasser.
• Mere usage of foul language or sexual innuendo in a consensual setting does not waive ‘her legal protections against unwelcome harassment.'” For example, the complainant might have consented to participate in a discussion about each other’s sexual life, does not mean she gave license to other’s in the group to make sexual advances on her.
• While conducting an enquiry, evidence regarding the complainant’s general character and past behavior towards others has limited, if any, probative value and ICC should not absolve from conducting a thorough examination of her behavior towards the alleged harasser.
• In case the complainant has voluntarily participated in a conduct of sexual nature but later stopped participating in such acts. Under such circumstances, if she claims that she is facing hostile environment due to continued sexual conduct, the complainant has the burden of proving that she has expressed her unwillingness to continue in such conduct, and such further conduct in unwelcome and constitute harassment at workplace. In case, such conduct persists, if the complainant fails to bring the matter to higher management or in the notice of the ICC, such behavior is evidence, though not conclusive, that such conduct is welcome or unrelated to work.
• As most of the cases of sexual harassment occur in private, in absence of any eye witness, a successful inquiry will depend on the credibility of the parties. The ICC should question both the complainant and the harasser in details, and try to identify the discrepancies, if any in their version. The ICC should look for corroborative evidences by questioning the co-workers, superiors, office staffs, doctors, counselors etc who have came into contact or observed the behavior of the complainant just after the alleged incident.
• A credible version should generally be sufficiently detailed and consistent to be accepted as reasonable, however, where there is lack of corroborative evidence, when such evidence should reasonably exist, may dilute the credibility of the complainant. Similarly, when such corroborative evidence exists, mere denial by the harasser without any sufficient evidence to disprove will be of little weight.
• The evidence that the accused has in past sexually harassed other employees, is a relevant fact.
• To determine whether the complainant was facing a “hostile environment” the ICC should take into account the following: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

The full text can be read here: http://www.eeoc.gov/policy/docs/currentissues.html

If you are an employer, compliance professional or an HR professional in need of a simple solution to implement the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 at your workplace, you can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences to train your workforce bettwe. You can also learn about implementation of sexual harassment laws by taking up this course.