Sexual harassment claims continue to be the hot topic of discussion in all the workplaces alike. In the wake of the #metoo campaigns, the discussion around effective management of workplace sexual harassment claims has gathered more momentum. A claim of workplace sexual harassment involves more than two parties: the complainant, the alleged harasser and the employer, each bringing different interests to the table. However, one common factor that all fear is the hideousness of these claims.
The standard recourse that most organizations provide for sexual harassment claims includes a formal investigation into the matter. Needless to say, such measures come with their own baggage. On one hand these investigations and consequent legal battles leave the organization financially drained, with a scar on their reputation and on the other hand, they subject the complainant and alleged harasser to stigmatization of the society. Studies also show that the complainants’ fear of retaliation and humiliation most often result in underreporting of the cases and may even lead to the complainant quitting their jobs. A comprehensive study conducted by the EEOC’s select task force in 2016 stated that up to 70% of the instances of sex-based harassment were never formally reported.
The list of shortcomings engendered in the formal redressal of sexual harassment cases is long and thus, begs us to consider some alternatives to redress these issues. Over the past few years, mediation has gained popularity as an alternative, informal mode to redress claims of sexual harassment at workplace. It is a common misconception that introducing mediation as a method to resolve sexual harassment cases would leave the complainant with no formal recourse. In fact, mediation aims to be an ally in this regard and not a substitute. It is a practice in several organizations that the complainant be asked to choose whether to address their claim via informal methods or file a formal complaint. At this point, it is imperative to clarify that choosing informal resolution does not mean that the formal option would no longer be available. Should the complainant opt for mediation early on and fail to reach a resolution, s/he can always file a formal complaint as per the company’s policies or other regulations in place.
Mediating sexual harassment cases can have some obvious advantages. Some of them are discussed here:
ADVANTAGES OF MEDIATING SEXUAL HARASSMENT CASES
THE INDIAN PERSPECTIVE
With the enactment of The Sexual Harassment of Women at Workplace Prevention, Prohibition, and Redressal Act of 2013 (the Act), all organizations having ten or more employees are mandated under the law to have an Internal Complaints Committee (ICC). The ICC’s primary role is to investigate and address complaints of workplace sexual harassment against women. The Act under its provisions (Section 11) explicitly recognizes the possibility of conciliation (in the Indian context, conciliation and mediation are used alternatively) and recommends that it be adopted as the first step.
In practice, the Act has shown little promise. The recourse provided under the Act via ICC is only limited to claims filed by women. The Act fails to recognize that men too (regardless of the extent of it) could experience sexual harassment at work. Further, studies suggest complainants’ dissatisfaction with the process. As high as 66% of the complainants said that the committees did not deal with the complaints fairly and up to 50% of women who experienced sexual harassment left their jobs or switched careers.
The positive aspects of mediating sexual harassment disputes are significant. Mediation has an untapped potential to change the way in which workplace sexual harassment cases are dealt. It could encourage reporting of cases, cause least disruption to the workplace and also, increase satisfaction among the parties to the process. The challenge, however, remains: to bust the myths about mediating such disputes and reinforce the informal system of conflict resolution across organizations.
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