Company equally responsible for sexual harassment: Expert

The company is as responsible as the accused in a case of sexual harassment, says Sajai Singh, employment law attorney and partner J Sagar Associates. "It is the primary responsibility of the employer to provide safe working environment to the employees."

Also Read: iGATE CEO Phaneesh Murthy fired on sexual harassment claim
Speaking to CNBC-TV18, Sajai Singh adds that the Equal Employment Opportunities Commission in the US has set the parameters according to which an investigation into the complaint of sexual harassment against Phaneesh Murthy will be conducted. Below is the edited transcript of the interview on CNBC-TV18 Q: At the outset, only Phaneesh Murthy’s side of the story is known because the complainant has not spoken. It is not known what charges have been levied Phaneesh Murthy. iGate conducted an external investigation which found that the sexual harassment charges against Murthy don’t hold water. But under California State Law and Federal Law, what would constitute as sexual harassment?
A: I am not a California lawyer. I am an Indian lawyer who represents a lot of California-based companies in India. But I have had a fair amount of exposure to California law. Any kind of unwanted sexual conduct is considered sexual harassment in California and it is basically been divided into two categories — one is a quid pro quo sort of a situation, which includes consensual sex or consensual sexual harassment, which is probably something that comes up very often and it is very confusing to the Indian mind. Second, is the creation of a hostile environment, which may not be sexual in nature, but it is a display of gender-based gender prejudice that.
So, it is both scenarios that create what maybe called a sexual harassment environment. In the first scenario, there is an implicit understanding that giving into sexual demands will ensure the victim retains the job or is promoted. That’s the way that the Federal and state law have tried to define sexual harassment. There is also a  Fair Employment and Housing Act which lays down the parameters. But what will repeatedly come up is if there was proof of existence of a consensual relationship. Q: Phaneesh Murthy, in his conference call with the media, complained of not being given fair representation. Is that a fair, legal argument because as per iGate’s policy apparently Phaneesh Murthy ought to have reported the fact that he was in a relationship with the victim, but he reported it only once the relationship had ended? Do you believe that Phaneesh Murthy has a case when he says he was not given a chance to represent his side before he was sacked?
A: The conduct of investigation for unwanted, sexual harassment, or any kind of harassment is conducted by the Equal Employment Opportunity Commission which has laid down guidelines for conduct of an investigation. One of the parameters calls for an impartial and fair inquiry of all parties concerned — the accused, the victim and coworkers.
If the company acted promptly, conducted an investigation and then found the accused guilty, it should have followed a due process as prescribed by the Equal Employment Opportunity Commission. Q: Where does this leave iGate? Do you believe that if the case were to go to court it is likely that iGate will be made a party in this case as well?
A: It is the responsibility of the employer to provide a safe and secure environment to every employee. And if the employer cannot provide such as environment to every employee, it has defaulted in its responsibility towards the employee. Therefore the first claim for any kind of sexual harassment is against the employer for failing to provide an environment where an employee likes to go to work rather than wants to run away.
So, whatever the accused may face, it is primarily the responsibility of the employer invariably the claim is always made against the employer.