Lawyer Sonal Mattoo On #Metoo Movement
ECONOMICS TIMES
Looking Beyond the Law
INDIATODAY
#MeToo and Indian workplaces: Advocate Sonal Mattoo on the movement's lessons for organisations
FIRSTPOST
Sonal Mattoo, Lawyer, on practicing as an independent litigator and dedicating her career for women’s welfare
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Lawyer Sonal Mattoo On #Metoo Movement
Wherever managers have had the window of discretion, we have seen it being misused either in the way you assign work or give feedback.
The Me Too movement has again brought our attention to sexual harassment, this time in India. In the wake of a series of allegations against journalists, actors, directors and admen, companies are scrambling to increase awareness among employees of what constitutes sexual harassment and how to prevent it. Sonal Mattoo, a lawyer and director of Helping Hands, an NGO that helps companies implement policies against sexual harassment, speaks to G Seetharaman about ssome common misconceptions related to harassment. (Mattoo is on the ICC of several organisations, including Bennett Coleman and Co Ltd, the publisher of The Times of India and ET).
What are the most common kinds of sexual harassment?
The most common would be non-verbal: how people are looking, standing too close, making others uncomfortable. But a lot of people are not conscious of their body language. That would be closely followed by inappropriate jokes and doublemeaning words and things like that. And then, of course, you have quid pro quo, which is misuse of power and position. But the majority would be non-verbal.
So that would mean unintentional harassment?
A lot of people are not conscious about how they make people uncomfortable. You have to counsel them and tell them they have to be careful, professional and not stare at people and make them uncomfortable. Tell them, ‘Make eye contact, don’t look at their bodies’.
What are the misconceptions about sexual harassment?
When we conduct an enquiry, very often the person against whom the complaint is made says, ‘Oh, it was a joke and I didn’t mean it. I didn’t know she felt bad. Why didn’t she tell me? If she had, I wouldn’t have done it. Why is she making a big deal out of it?’ I keep saying it’s not about intention, it’s about perception and how it impacts the person who is the recipient of that behaviour. For instance, let us say there is a WhatsApp group of colleagues, both men and women. You post a joke there which you got as a forward. And some people are not comfortable with it. The person turns around and says, ‘I didn’t mean to sexually harass anybody. I received it as a forward and I’m only sharing it on the group. I didn’t write it’. Or, ‘Sorry I meant to send it to somebody else. It landed here by mistake’. Your intent is immaterial if the content is inappropriate and lands in my phone, whether or not you are the author of it or whether or not you sent it to me by mistake.
What if the person lodging the complaint wants to go to the police?
In terms of what action is available to an organisation, it is linked to employment: warning letters, withholding of benefits, demoting or termination of services. However, if the woman requests the organisation and says she needs their support in filing a police complaint, then the organisation has to help her. It does make a big difference. That process (of filing a police complaint) can be very daunting to navigate. You can have a lady from HR accompany her along with someone from the security and admin team, to make sure the lady is not intimidated. Sometimes, we recommend to women who are not aware of their reports, ‘This is your legal right, do you want to lodge a police complaint?’ But it happens very rarely that they go to the police.
What happens when one of the parties involved has never worked with the company concerned?
The legality is all cases that we (the ICC) take up have to be related to the workplace, but not limited to employees internally. It includes anyone you might come in contact with as a consequence of your work. Something happens to you at a retreat or offsite. Your organisation has put you up at a hotel. All these venues are covered as workplaces. The dilemma we have is if there is nothing related to work, we don’t have the jurisdiction to look into it. But there are circumstances when the company needs to take a call — if there is an established .. incident and it is leading to a potential reputation loss to the organisation, or there are other people expressing their discomfort to say there is enough to show that someone has engaged in inappropriate conduct, or something like that. If I come to an organisation for an interview and I have not got selected, but the experience during the interview was uncomfortable because of the behaviour or the kinds of question I was asked, it gives me the right to raise a complaint internally.
Is it true that there is a high number of sexual harassment complaints around appraisal time?
It’s my personal experience. A person has been pushing back and saying to her manager, ‘Stop it, I’m uncomfortable with this behaviour’. She calls it out and verbalises it, but does not raise a complaint. The retaliation for the manager is to get her out; give her an appraisal that she is so bad that she is moved out of his team. Wherever managers have had the window of discretion, .. we have seen it being misused either in the way you assign work or give feedback. Suddenly, the person is excluded from meetings — the meeting invite will go to everyone but that person. I do see an escalation in cases at the time of appraisal. Yes, we also see some false complaints. But don’t dismiss a complaint coming from a poor performer assuming it’s false.
How long does it take an internal complaints committee to clear a case?
According to law, you have 90 days to conduct the enquiry, 10 days to write the report and the management has to take action in 60 days. So it’s 160 days. Barring just a few cases, we are normally able to, very effectively and without compromising on the quality of the enquiry, conclude the enquiry in 30-45 days.
What happens if it is a false case?
For a committee to decide there is no case essentially means it’s a false or fabricated complaint. The evidence you require to come to that conclusion should be beyond reasonable doubt. Lack of evidence doesn’t make it a false case. You need evidence to prove it’s a false case. The committee’s personal opinions shouldn’t reflect on the report at all. It should be on the basis of what you have heard and what others have shared with you
Looking Beyond the Law
How to encourage sexual harassment victims at the workplace to speak out without fear.You walk into the manager’s room after returning from your honeymoon and he greets you with, “marriage suits you, you have filled up in all the right places”. You walk up to the human resource in disbelief and share what’s happened. You are asked for proof, reprimanded because you extended your leave without intimation, and informed that the human resource department has never received a complaint against the manager.
Burden of proof
It’s not always easy to produce evidence in cases of sexual harassment. However, lack of evidence does not make the complaint false and mala fide. A well trained and sensitised Internal Committee (IC) will be able to effectively resolve such cases. That’s the reason why companies should invest in training and sensitisation. It’s a necessity. Don’t only look at it as a ‘tick in the box’ to comply with statutory provisions. Much has been spoken and written about prevention of sexual harassment yet the complaints keep coming; many genuine and some false.
Time for change
While most companies have policies and ICs set up, cases are handled poorly. If companies want to do right by their employees, they need to go beyond the letter of the law. The only way to make this work is to look at the spirit of the law and not just the letter.
- The law mandates putting up posters in conspicuous places. Try putting posters in washrooms. Complainants are most comfortable noting down the IC contact details in privacy, without the fear of someone looking into their systems as they search for information. Put up posters in regional languages for the benefit of support staff such as housekeeping, security, pantry staff and drivers.
- Pick up the phone and call the complainant immediately. Don’t get bogged down with email protocol. Documentation is important, reassurance even more.
- Schedule meetings outside the office and be sensitive to the comfort and reputation of both parties.
- Share all details with the respondent as she has the right to know the exact allegations. Offer to mask names of witnesses if they fear retaliation, but do share evidence, statements and findings with both parties. Be transparent and uphold principles of natural justice.
- Protect the complainant during an inquiry. Retaliation and breach of confidentiality are the primary reasons people hesitate in complaining.
- Empower your IC and give them independence to do their job. Protect them against wrongful suits and police complaints.
- Separate behaviour from performance and evaluate each separately. A poor performer can be a genuine victim of sexually inappropriate behaviour.
- Caution employees against misuse of the law.
- Go beyond the law. Make your policy gender neutral. Sexual harassment is not limited to women alone.
- Help and support. Don’t create technical hurdles such as asking for six copies of the complaint.
- Several complaints of sexual harassment and inappropriate behaviour escalate during company offsites. Educate employees about responsible drinking during company sponsored social events.
- Watch what you share on a team Whataspp group. Inappropriate pictures will get you into trouble as will risque jokes.
- Speak up, don’t stay silent. Ignoring is often misconstrued as consent. Save messages and email snapshots of chats if you wish to delete the messages on your phone.
- Be careful with your language. The law is based on perception of the complainant, not intention of the respondent.
- Don’t share details of an internal inquiry as part of the background verification process.
- Asking potential candidates personal and inappropriate questions during an interview is not acceptable.
- Support women complainants. It takes guts and courage to speak up.
- If you wouldn’t do this with your child, don’t do it at work. It will get you into trouble.
- The law is based on respect for your co-workers and common sense. No matter how fancy your policy, if the above two qualities are missing, a policy will be ineffective.
- Don’t be judgemental while conducting an inquiry. Opinion is an assumption, Observation is a fact. Rely on the latter, keep the former aside. People’s careers are in your hand. Wear your responsibility with humility.
#MeToo and Indian workplaces: Advocate Sonal Mattoo on the movement’s lessons for organisations
As #MeToo allegations — many of them detailing harassment that occurred in professional situations — continue to tumble out on social media, what is the mandate for Indian workplaces? Advocate Sonal Mattoo, the founder of Helping Hands (which helps organisations implement policies against sexual harassment, become more gender sensitive, tackle other forms of harassment and discrimination at the workplace, and investigate complaints), spoke with Firstpost’s correspondent about the way ahead.
While the #MeToo allegations that have emerged on social media recently do refer to harassment in the sphere of personal/private life, many are concerned with the workplace. As a professional observing these stories, what are your views?
Among the #MeToo allegations that concern the workplace, the trend we’ve seen is that these accounts are mostly against people who are/have been in a managerial capacity, someone whom others report to.
That’s perhaps one of the reasons women are not comfortable speaking out about harassment when they are part of the organisation.
But when they have chosen to speak up, I think — wherever an organisation has the ability to take up these cases — even if it means taking suo motu cognisance of the matter, they should.
What to you have been the most striking features of this wave of #MeToo allegations concerning the workplace?
In instances where I support an organisation and we’ve been looking into these cases, we’ve found merit in the concerns. We’ve seen multiple people speak out about one individual’s behaviour. So the theory of sexual harassment being a pattern of behaviour is emerging very clearly.
What are some of the issues these #MeToo stories have flagged that workplaces and employers will now need to be more conscious of?
In many of these cases, the women are speaking up for the first time; this had not been brought to the organisation’s notice earlier. Now that it has been brought to their attention, organisations are looking into it in whatever capacity they can.
Another issue that’s coming up is that some women had spoken about their experiences to certain people, and these people, in turn, made excuses for the behaviour flagged, saying things like “just deal with it”. This is where irresponsible behaviour has been displayed.
With organisations, the rule of thumb now should be — whenever you hear of it, irrespective of whether the woman gives it to you in writing or verbally — if somebody is expressing their discomfort, take it up; don’t wait for the formalities of a written complaint.
Do you think these stories are going to change the modern workplace or working relationships in any way? Will the change — in your opinion — be for the better or worse?
#MeToo has definitely unsettled a lot of people. I think this is a positive development because people will now understand that they cannot get away with that kind of behaviour.
I do hope #MeToo will not make organisations wary of hiring women — that would be immature, and sad. That’s not the interpretation we should be placing on these events. If organisations stop hiring men, that would be equally ridiculous.
Instead, create forums and channels via which women can complain without fear of retaliation.
The bar will be raised, and there will be greater awareness. There will be clear standards for what is acceptable behaviour and what is not.
Legally, what does the #MeToo movement mean for the Indian workplace?
I’ve been fortunate in partnering with organisations that have taken this very seriously. In my two decades’ of practice in this area, every organisation — barring that 0.1 percent — I’ve partnered with, whether to raise awareness or conduct an inquiry, has taken it very seriously.
Right from awareness sessions to training for the IC (internal committee), I can hold the organisations I work with to standards of exemplary behaviour, with very strong cognisance of these matters.
Going forward, organisations are going to take this very seriously: If someone steps forward with a complaint, it will not be dismissed on the grounds of seniority or lack thereof, or “that’s just how Person X is”.
I think organisations also need to commit to ensuring that these provisions are not misused. If we follow due process, protocol and spread awareness, it is going to be a win-win situation.
How/where do you think modern workplaces have failed their female employees? Where have they succeeded?
Where we’ve succeeded is organisations that take sexual harassment very seriously have gone beyond treating compliance (with the laws) as a mere tick in a box.
We may say, “Okay, we are compliant, we have an IC and we have policies” — but no one knows who the committee members are, or are scared of approaching them, or when they do approach the committee, they are not heard or are dismissed.
The organisations that go above and beyond are the ones that say, “Let’s make this a gender-neutral policy” or “let’s make people safe and comfortable”. An example is, when complaints come in against someone very senior, you take the same strong action as you would for someone at the lower rung — if not stronger. You don’t get dismissive because the complaint is against a great performer or a senior. These are the organisations that have done well.
The organisations that have failed are the ones that don’t understand the seriousness of the issue, or lack the sensitivity to take it forward. They do it as a tick-in-the-box exercise, instead of investing sufficient time, energy and resources.
I think it is really a question of intent: If the company wants to do it, you don’t need the law to support you. If your intentions are good and you promise to provide a safe environment, you don’t need the law — you will go beyond the law. The entire thing boils down to the intent and will of the organisation.
The ones with strong value systems will take this forward.
What is the moral responsibility of employers in cases like these?
Morality is very individual; what I may consider moral may not be the same as others.
So I’ll step away from morality and talk about the ‘spirit’ of the law instead: You have the ‘letter of the law’, which says take six copies of your complaint to the IC. And then there’s the ‘spirit of the law’ — where, when somebody comes to you and raises a concern, will you tell them “go get me six copies and only then will I take cognisance of your complaint”?
If companies really want to do the right thing, I would say do what the ‘spirit’ of the law requires. Of course, you will fulfil the ‘letter’ of the law — but don’t make it uncomfortable for people who come to you in emotionally difficult moments of their lives and career.
From a moral standpoint, I will stand up for what is right. If you look at somebody going through harassment, you might not be the affected party but you are seeing it, so step up and support them. Don’t take a back seat thinking ‘why should I make a big deal out of it?’. If you are in a position of power and authority, you don’t have to be the affected person. Voice counts; so use your voice for something good.
Many of these stories of workplace harassment go back decades… how much have workplaces evolved — in terms of legal recourse and such options — to tackle instances of harassment?
Post-2013, statutory guidelines have come in place. We have a proper statute and acts and things have become much better. But the Supreme Court and Vishaka Guidelines have been in existence since 1997, so companies should have woken up 21 years ago and started working on those guidelines! Many of them have.
I think what has changed is the number of women in leadership roles. When you have more representation on the board and in leadership, it’s easier for women working in the organiation. Because the policies being made then are by women, for women. There’s a lot more sensitivity.
I do believe that having more women as decision-makers is what has changed the scenario at a lot of companies.
What is the way forward for Indian workplaces and employers (legally) — in the immediate future and in the years to come?
To take these issues seriously.
I am not saying it in light of #MeToo or because we have to be in damage control mode. But take it forward: a conducive work environment fosters productivity and benefits the organisation. So, raise awareness, have support groups where those who have faced untoward behaviour can come forward and complain.
Legally, you should be filing returns at the end of the year detailing the number of cases you had, the number of awareness sessions you have conducted, the outcome of the cases — what actions you have taken within the stipulated time frame. All of this now needs to go into the annual report of the organisation. This transparency makes people sit up and do the right thing. There are monetary fines for non-compliance.
Let women know that they can speak out without any fear of retaliation. That is one huge step forward as a lot of women worry about the consequences on their careers of reporting incidents like these, or what if their parents find out, or if they will be blamed for ‘contributing’ to this behaviour.
An organisation needs to educate its employees on what constitutes sexual harassment. Because the law against sexual harassment at the workplace is such a progressive and empowering one, I think people should also be educated on how not to misuse the policy. Please don’t bring complaints that are not sexual harassment to this forum; if it’s workplace harassment, take that to HR. It takes away credibility from genuine complains when people misuse forums like these. So a combination of reassuring employees while also speaking about what constitutes misuse — I think makes for a good environment.
How can they use legal provisions to make the workplace safer for all employees?
If you are an employer, there are guidelines to ensure that your employees are treated in a respectful manner.
It is common sense, more than the law: You come in to work; you want to be in a safe environment where you can work freely without somebody being disrespectful to you, without somebody treating you badly, without somebody being abusive towards you, and without somebody touching you or feeling you up just because they are in a position of authority.
Companies must ensure that all employees adhere to their code of conduct; the code of conduct details all these concerns very clearly. It ensures a very strong disciplinary matrix, saying that if there are violations, there will be consequences to your behaviour and action will be taken accordingly.
Apart from this, if a complainant is concerned about her safety and security outside the workplace, or if she wants to file a police complaint about an incident that occurred while she was employed, the organisation shouldn’t shy away from supporting her. All the woman would have to do is, write to the ICC saying ‘I require support in filing a police case’ and somebody from the organisation should accompany her because many people aren’t familiar with how to lodge a police complaint.
Sonal Mattoo, Lawyer, on practicing as an independent litigator and dedicating her career for women’s welfare
Sonal Mattoo graduated from National Law School of India University (NLSIU) in 1996.
Since then, she has been practicing as a Criminal Litigator. She founded Helping Hands, in 1996, which helps implement policies against Sexual Harassment/ gender sensitization and other forms of harassment and discrimination at the workplace, besides carrying out training and investigation on complaints filed with the organization.
She is also a founder and principal consultant of Mantran Consultants, a firm specializing in CSR activities, Counselling, Diversity policies, and workshops.
She supports various clients as an independent Ombudsperson, handling employee complaints.
Sonal is a Non-Executive Independent Director of Ashiana Housing Limited (a listed company) where she is the Chairperson of Investors Grievance Committee and a member of the Audit Committee and Remuneration Committee of the directors. Sonal is also a Non-Executive Independent Director of Vatika Marketing Limited and V-Mart.
Sonal’s initiatives in these areas and notably on sexual harassment workshops have been covered twice by ‘Femina’, ‘Around Town’ and ‘again twice’ by Cosmopolitan and Readers Digest ‘Joy’. She has also been invited by E-TV to develop and present 12 TV episodes on ‘Legal and General Issues Specific to Women’ for their program, `Nari’.
A keen reader, Sonal has written articles on Sexual Harassment for Human Capital (India’s premier journal on HR), newspapers, seminars, and contributed a chapter on `Sexual Harassment’ for `Empowerment of Women in India, 2003,’ published by Law Publishers, Allahabad.
In this interview she talks about:
- Choosing law as a career and her experience at NLSIU, Bangalore
- Her experience as a founder director of “Helping Hands”, Its motive and the activities it indulges in
- Sexual Harassment at a workplace
- Choosing to become an Ombudsman and her programme “Nari”
What prompted you to think of law as a career? If not law, what other options would you have considered for your career?
I always wanted to be part of a justice process. I didn’t have a plan B, so had to make my plan A work.Describe your experience at National Law School of India University as an undergraduate student.
I was initially intimidated with the level of intellectual competency every student and faculty member possessed. The curriculum was designed to make you think, work hard, understand rather than memorize. An awesome 5 years, difficult to describe, but left a mark on everyone, NLSIU contributed to my personal and professional growth more than any other experience. There was outstanding, dedicated faculty and friends for life were the added bonus.How did you become a founder director at “Helping Hands”? What were the challenges that you faced?
As a litigating lawyer, I found most people completely unaware of their basic legal rights and options. Moreover, 20 years ago the parallel Redressal mechanism was not as refined as it is now. We saw a gap in these two areas and set up Helping Hands to primarily support and educate people about their legal rights and provide a platform for counseling/conciliation/settlement of disputes.
Helping Hands is a self-funded NGO. Funding was a challenge, so I decided to dedicate a portion of my earnings towards funding the NGO.What are the activities Helping Hands indulges in?
At a corporate level:
Redressal, inquiry into complaints of workplace harassment,
Awareness sessions, training of ICC members and employees,
Support organizations as an ombudsman.
At a non-corporate level:
Counseling
Education and awareness on legal rights and options
Resolving and negotiating family disputes.
Supporting senior citizens with preparing wills etc.What were the initial missions of the organization and what kept you motivated?
The initial years were focused on supporting women and children who were victims of domestic violence, sexual abuse. The missions also included creating education and awareness around sexual harassment at the workplace.What do you think about the current situation of sexual harassment at a workplace? How do you think the situation can be improved?
I’m fortunate to support organizations that have a zero tolerance policy and go beyond the letter and spirit of the law to ensure they are fair and provide a safe and conducive work environment to all employees.
However, from the many independent clients, I advise the lack of sensitivity towards victims, corporate failure to take these matters seriously, protecting star performers and senior management, retaliation towards the Complainant are grim realities.
Mandatory education and awareness are the only way out.If I want to become a founder director of an NGO how should I go about it?
Find like-minded people to join your cause. Passion and commitment are the only requirements. Leave the rest, like registration, etc. to your lawyer and CA!How did you become an ombudsman? Is an ombudsman same as a mediator?
As a member of the ICC, my email address and contact details was often circulated to the employees. Several would write requesting for help to resolve workplace issues, not necessarily related to sexual harassment. They were more comfortable speaking with a neutral third party. Hence, I started to support various clients as an independent Ombudsperson. While the primary effort is to resolve the concerns raised and mediate, often concerns raised call for an inquiry and stringent action basis on findings.Why should the leader(s) of an organization listen to an Ombudsman?
The Office of the Ombudsperson is independent and works in the best interest of the parties involved. A third person’s perspective is always valuable and brings another dimension into the conversation.Describe your experience as an independent director of Ashiana Housing Ltd, Vatika Marketing Ltd, and V-Mart.
Being the only woman on both boards, it’s driven home the point that both sexes must be represented in decision-making processes. The learning has been great for me. My colleagues on the board are incredibly intelligent and competent individuals, we bring our unique experiences on board and learning and listening to them encourages you to strive harder. I have finally learned to read a balance sheet!What were the issues you covered in the programme “Nari”?
The programme covered legal issues pertaining to women, dowry, maintenance, legal rights as a victim, etc.How exactly would you define social entrepreneurship?
The intention to help and bring about a positive change in the lives of people if given a formal structure and direction can have a wider reach with greater impact. The ROI is making a difference in people’s life.Do you think having family members or mentors with a legal background help in this profession?
I’m sure it does, but it’s not a requirement. Anyone with passion, drive the ability to work hard and committed to the cause, irrespective of their support structures will be a success in the legal profession.What would be your advice to our readers?
Do what you love and enjoy, the long hours and hard work won’t tire or bore you.