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Companies reopening old cases, seek legal opinion fearing #MeToo blow

The Economic Times |

11 October 2018

The #MeToo movement has got companies worried that they may not have been meticulous enough in their investigations of sexual harassment complaints — so they are opening up old cases to check. 

The most concerned are those that may not have taken such allegations seriously enough and buried them, lawyers and investigators said. One of the cases being reopened is said to be that of a multinational bank’s CFO who got a clean chit from an internal complaints committee in 2013. The bank is now taking another look at the allegations made by a former employee. 

A letter written by the employee had said that the chief financial officer used to harass her and nine other employees in the department. The bank has decided to get lawyers and forensic investigators to look into the issue. 

“We are now interviewing all women in the department, and are required to opine on whether the CFO’s conduct could be tantamount to sexual harassment,” said a senior lawyer with direct knowledge of the matter. 

India’s #MeToo campaign, which was sparked by Tanushree Dutta accusing actor Nana Patekar of harassing her, encouraged others to name men in the media and entertainment industry, bringing to light decades of such behaviour escalating to rape. The momentum that the campaign has attained could see men in other fields also being accused publicly of sexual harassment and hence the scramble among companies to get their house in order, experts said. 

A few kilometres from the headquarters of the multinational bank in Mumbai, one of the country’s top 10 listed companies has brought in a forensic investigator to look into allegations that a woman employee made a few months back over which no action was taken. 

“What we discovered however is that at least 10 such complaints were filed at different points in time by women against the senior executive,” said a person advising the company. “It appears the company wants a neutral opinion on this case as they fear that the ongoing campaign could mean this case comes back to bite them.” 

Under Scanner 
Apart from multinational banks, those looking to scrutinise ongoing cases and past allegations against senior executives include top companies in infrastructure, hospitality and advertising, said the people cited above. 

Forensic investigators are checking up on the allegations while lawyers are being asked to determine whether sexual harassment took place. The companies and banks also want forensic investigators to see if they “missed out on anything” and lawyers to tell them how best to react if some of the survivors were to tweet about these instances, one of the persons told ET. 

Companies and senior executives have previously “settled” allegations by entering into contracts or agreements with complainants. Experts point out that in most such instances no legal opinion was taken. 

“As per the law, there cannot be any contract or agreement that can be made to keep a survivor quiet, and she can come out at any point of time,” said Zulfiquar Memon, managing partner of law firm MZM Legal, who is advising several companies and banks on the issue. 

“Many companies want to revisit the cases so that they can scrutinise the situation closer and take preemptive action.” 

Role of Internal Complaints Committee 
Investigators pointed out that sexual harassment committees have been risk averse and have asked complainants to “adjust with the situation,” thus protecting harassers, said one of them. The rules dictate that internal complaints committees (ICCs) are required to understand, evaluate and take action when sexual harassment has occurred. 

“In many of the cases, there is a need for establishing the question of facts and question of law, wherein both forensic auditors and lawyers are roped in respectively,” said Kartik Radia, head, business advisory services, BDO India. 

“For establishing the question of facts, forensic auditors are roped in to investigate and independently report on facts and for establishing the question of law. Lawyers are engaged to ascertain whether it is the case of harassment / sexual harassment, in the light of the facts that are established.” 

The campaign could also shine a light on the role of senior managers who protected harassers or didn’t do enough to ensure a safe workplace. 

For instance, in 2015, a south Indian infrastructure company employee alleged that a vice-president had molested her at an office party. When the ICC didn’t take any action, the person resigned, accusing the chairman of protecting the V-P. 

“The promoters now fear that if the employee or anyone related to her were to merely tweet about this, it could cause a lot of trouble,” said a New Delhi-based lawyer advising the company. The law firm is preparing the company’s defence in the event of such an occurrence.