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CONFIDENTIALITY AND RETALIATION PROTECTIONS FOR HARASSMENT VICTIMS

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ABSTRACT

Sexual harassment at work may be both humiliating and traumatic for an individual. The victims may be anxious and disturbed, but they may also be afraid. They may wish to report sexual harassment but are terrified of retaliation. What if everyone becomes aware of it? What are people going to think? These uncertainties and fears prevent people from speaking up. Assuring confidentiality offers the victim of sexual harassment assurance that what they say will not spread like wildfire.

INTRODUCTION

Maintaining secrecy in the workplace when dealing with sexual harassment can be difficult. Employers are legally required to take all complaints of sexual harassment with extreme seriousness and conduct extensive investigations. If you have been subjected to workplace sexual harassment, you may be afraid about retaliation and want to file an anonymous report. Unfortunately, this is not frequently an option because a formal complaint often requires both your name and the person you are accusing.

While communications with your employer or Human Resources should be kept confidential, perfect privacy is difficult to obtain. Interviewing witnesses and identifying the parties involved may be part of the investigation. However, everyone’s privacy should be protected at all times during the process.

CONFIDENTIALITY

Sexual harassment is a highly delicate problem that has serious consequences for both the offender and the victim. Maintaining confidentiality in sexual harassment reporting procedures is critical for protecting the privacy and dignity of the individuals concerned. By maintaining confidentiality, we may foster a climate in which victims feel empowered to come forward, seek justice, and avoid the harmful consequences of their claims.

Clients occasionally ask us how confidentiality works when all of the complainant’s and complaint’s information are shared with the respondent. According to Section 16 of the PoSH statute, confidentiality must be maintained about the victim’s identity and incident facts with regards to the media and the public. In this context, we define “public” as any third parties who are not stakeholders in the complaint, including other employees. Respondents have the right to receive all of the details of the complaint in order to reply properly. Otherwise, it may contradict the concept of natural justice, which provides that “no man shall be condemned unheard.” If someone is not given a enough opportunity to react to a complaint properly, they will go unnoticed or denied a fair hearing.

It is unfortunate, but true, that the victim of sexual harassment fears more than the perpetrator because the victim believes that reporting the perpetrator, even under the PoSH Act, will cost them their job, force them to answer uncomfortable questions from their colleagues, and face judgmental eyes while walking through the corridors.

 However, to address these concerns, the PoSH Act includes confidentiality measures to ensure that no victim of sexual harassment compromises their privacy in order to achieve justice under the PoSH Act. Confidentiality implies that the informer provided information in full trust and is seeking protection under the PoSH Act.

Section 16 of the PoSH Act prohibits the publication or disclosure of complaint contents and inquiry proceedings. It states that, notwithstanding the RTI Act, the details of complaints, identities, and addresses of involved parties, and any information related to proceedings and actions taken under the PoSH Act, shall not be made public, communicated, or shared with the media. An exception allows dissemination of justice related information without revealing the identity of the victim or witnesses.

In Vk Bhosale vs. The National Bank for Agriculture and Rural Development, the court upheld confidentiality under the PoSH Act. The case involved an RTI request for documents related to a sexual harassment inquiry by the internal women’s committee. The CPIO denied the request under Section 8(1)(j) of the RTI Act and Section 16 of the PoSH Act. The court observed that the information sought was exempt from disclosure and that sharing such sensitive information would violate confidentiality under the PoSH Act. The judicial bench upheld the CPIO’s decision, rejecting the appeal.

Stakeholders of this information are limited. The PoSH Act explicitly prohibits sharing sensitive information with anyone except the Internal Committee members responsible for addressing the complaint. This ensures that no individual, including top management, receives details of the sexual harassment case or the victim’s information.

Section 17 of the PoSH Act outlines penalties for breaching confidentiality. If anyone entrusted with handling a sexual harassment complaint violates Section 16, they face penalties as per service rules, including a Rs. 5,000 fine for breaching the confidentiality contract.

An exception allows sharing information about the justice obtained without revealing personal data. This was affirmed in Praveen Bhatt vs. Union of India and Others, where the court emphasized Section 16’s exceptions. The court stated that sensitive information, including identities and inquiry details, should not be disclosed to the public or media. However, the PoSH Act does not prevent judicial consideration of such material when necessary.

Thus, the PoSH Act prevents the media from publicizing details of ongoing sexual harassment cases but allows judicial review when required.

Ensuring Fair and Impartial Investigations

Confidentiality is crucial for fair and impartial investigations into sexual harassment allegations. By maintaining strict confidentiality, cases can be examined thoroughly without undue influence, preserving the integrity of the investigation. This allows investigators to objectively analyze evidence, gather witness testimonies, and reach unbiased conclusions.

Preserving Professionalism and Dignity in the Workplace

Confidentiality breaches can occur if complainants, witnesses, or respondents disclose case details. Such breaches can undermine the inquiry and compromise justice. The law imposes a fine of Rs. 5,000 for unauthorized disclosures. Revealing the identities of the complainant and respondent can create discomfort and hostility in the workplace, negatively affecting relationships, productivity, and overall wellbeing. Upholding confidentiality ensures that all parties can work with dignity, free from unnecessary scrutiny or judgment.

RETALIATION

Sexual harassment retaliation occurs when employees face adverse actions from their employer or colleagues after reporting or resisting sexual harassment in the workplace. These actions can range from demotion, salary reduction, and exclusion from projects to more subtle forms like social ostracization and increased scrutiny. This pervasive issue spans various industries. For example, employees at a California foods company encountered a hostile work environment where complaints about sexual harassment were met with further harassment or even termination. Similarly, a team member at a fastfood franchise operated by North Georgia Foods Inc. in North Carolina faced sexual harassment and experienced retaliation, including pregnancy discrimination, when she sought help. These cases highlight the urgent need for awareness and action to combat workplace retaliation.

Retaliation often extends beyond overt actions, manifesting in subtle yet deeply impactful ways. Victims may experience social ostracization or increased scrutiny, creating a toxic and stifling work environment. Recognizing these subtle forms of retaliation is crucial for addressing and preventing further incidents.

Victims of sexual harassment retaliation face numerous challenges in their professional and personal lives, with farreaching repercussions affecting mental health and overall wellbeing. The Law Offices of Jeremy Pasternak have handled numerous retaliation cases and offer free consultations for victims seeking help.

Recognizing sexual harassment retaliation is vital. It can manifest in various forms, both overt and subtle, disrupting victims’ professional trajectories and exerting a significant psychological toll. Recognizing these patterns early can help victims cope and safeguard their mental wellbeing and career prospects.

Common Forms of Retaliation

  1. Demotion or Job Reassignment: Involves being moved to a less desirable position or location with reduced responsibilities as punishment for reporting harassment.
  2. Salary Reduction: An unexplained decrease in salary might indicate retaliation.
  3. Exclusion from Meetings or Projects: Deliberately leaving individuals out of important meetings or projects to marginalize them.

 Subtle Forms of Retaliation

  1. Social Ostracization: Isolating individuals from group activities or conversations, creating a hostile work environment.
  2. Increased Scrutiny: Subjecting individuals to unusual amounts of scrutiny or criticism regarding their work performance.
  3. Denial of Training or Promotion Opportunities: Preventing career advancement by denying training or promotions.

 Psychological Aspects of Experiencing Sexual Harassment Retaliation

 Emotional Toll

  1. Stress, Anxiety, and Depression: Increased levels of stress, anxiety, and depression can result from retaliation, necessitating early recognition and appropriate help.
  2. Impact on self esteem and Confidence: Retaliation can undermine selfworth and confidence, making it difficult to perform effectively at work. Social isolation can exacerbate feelings of loneliness.

 Coping Mechanisms

  1. Seeking Therapy or Counseling: Therapy or counseling can help navigate the emotional toll of experiencing retaliation.
  2. Building a Support Network: Creating a network of supportive individuals within and outside the workplace can buffer against the negative impacts of retaliation.

Recognizing and addressing sexual harassment retaliation is essential to create a safe and supportive work environment. By identifying common and subtle forms of retaliation and understanding the psychological impacts, victims can take proactive steps to protect their wellbeing and careers.

REPORTING SEXUAL HARASSMENT

Individuals who experience sexual harassment can report it internally to a manager, HR practitioner, or externally. External bodies include:

Reports can also be made to WorkSafe or through internal safety reporting, as sexual harassment can be occupational violence. Claims may fall under the Fair Work Act 2009 or as negligence/personal injury claims. Reports can be made to Victoria Police if the harassment is criminal, such as sexual assault or stalking, although interstate incidents may require contacting local police. 

Responding to Sexual Harassment

The initial response to a report is critical. Those reporting should be supported with respect and concern to avoid trivializing their experiences or victim blaming. Offering access to employee support services, such as an Employee Assistance Program, is essential. 

Employees might fear severe consequences for the respondent, deterring them from reporting. Organizations should inform them that reporting doesn’t always lead to a formal investigation, and their wishes will be considered. Disciplinary outcomes vary under the Victorian Public Service Enterprise Agreement, which may encourage reporting.

A checklist for managers and HR practitioners ensures appropriate and consistent responses to sexual harassment reports, regardless of who receives the report.

Workplace Retaliation: Recognition and Prevention

Workplace retaliation occurs when an employee faces adverse actions or treatment as a result of reporting or confronting sexual harassment. This can manifest in various forms, such as demotion, isolation, unwarranted criticism, or even termination. Recognizing these behaviors is crucial for fostering a safe and respectful work environment.

A common form of retaliation is the isolation of the victim, where colleagues and superiors distance themselves, fostering exclusion and alienation. This isolation can extend to professional opportunities, with victims finding their career advancement hindered. Other subtle forms include microaggressions, changes in workload, or exclusion from key meetings. The fear of retaliation can be a powerful deterrent, forcing victims into silence and perpetuating a culture of abuse. The psychological toll of such tactics is significant, as victims grapple with both the original harassment and subsequent retaliation, creating a hostile work environment.

The Importance of Reporting Sexual Harassment

Reporting sexual harassment is a courageous act that contributes to a harassment-free workplace. However, fear of retaliation often discourages victims. It is imperative for organizations to establish clear reporting mechanisms and assure employees they will be protected from retaliation.

Anonymous Reporting Channels

Implement anonymous reporting channels to provide a secure space for employees to report harassment without revealing their identity, mitigating the fear of retaliation.

Timely and Transparent Investigations

Ensure all reports of sexual harassment are promptly and thoroughly investigated. Transparent communication about the investigation process and outcomes builds trust and discourages retaliation. 

Support for Victims

Offer support services such as counseling, legal assistance, or employee assistance programs to individuals who report harassment, demonstrating the organization’s commitment to employee well-being.

Legal Framework in India

In India, workplace retaliation is addressed through various labor laws. The Industrial Employment (Standing Orders) Act, 1946, outlines terms of employment, including provisions against unfair treatment or retaliation by employers. The Code on Social Security, 2020, includes protections against retaliation as part of employee welfare.

Addressing retaliation requires legislative measures, organizational commitment, and cultural shifts. By actively combating retaliation, workplaces can evolve into environments where individuals work without fear of reprisal. A collective effort from employees and employers is essential to create a safe and inclusive work environment, dismantling the culture of fear and ensuring psychological safety for everyone.

CONCLUSION

Addressing sexual harassment and preventing retaliation in the workplace are critical for fostering a safe, respectful, and inclusive environment. Ensuring confidentiality throughout the investigation process is essential to protect the privacy and dignity of all parties involved, as mandated by Section 16 of the PoSH Act. This confidentiality encourages victims to come forward without fear of undue exposure or backlash, while also upholding principles of natural justice for the respondent.

Organizations must establish robust anti-retaliation policies, educate employees and management on the importance of these measures, and provide anonymous reporting channels. These steps help create a supportive atmosphere where employees can report misconduct without fear of reprisal. Prompt, transparent investigations and comprehensive support services, such as counseling and legal assistance, further demonstrate the organization’s commitment to employee well-being.

Legal frameworks, including the Industrial Employment (Standing Orders) Act, 1946, and the Code on Social Security, 2020, in India, play a pivotal role in addressing and mitigating workplace retaliation. These laws outline the rights and protections available to employees, ensuring fair treatment and recourse in cases of harassment and retaliation.

Recognizing and addressing both overt and subtle forms of retaliation is crucial. Retaliation can manifest as demotion, salary reduction, exclusion from projects, or more insidious actions like social ostracization and increased scrutiny. The psychological impact of such retaliation is profound, affecting victims’ mental health and professional lives.

Ultimately, combating workplace retaliation requires a multi-faceted approach involving legislative action, organizational policies, and a cultural shift towards greater transparency and respect. By breaking the silence around harassment and retaliation, workplaces can evolve into environments where all individuals can thrive without fear of retaliation, ensuring psychological safety and fostering a culture of trust and respect.

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