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“He said, she said.” It’s a phrase that often gets thrown around in the context of sexual harassment complaints under the POSH Act, 2013. These situations where there are no witnesses and both parties present conflicting versions are often seen as the toughest to handle. But they don’t have to be. As a POSH Subject Matter Expert, I’ve trained Internal Committees (ICs) across industries, and here’s what I want every IC member and employer to know:
A lack of witnesses does not mean a lack of evidence.
Understanding the Challenge
In many sexual harassment cases, especially those involving subtle, verbal, or non-physical misconduct, complaints often boil down to conflicting personal narratives. These are commonly referred to as “he said, she said” situations not to imply gender but to highlight the binary conflict. The challenge for the IC is clear:
- How do you ensure natural justice, procedural fairness, and a bias-free process when both parties sound credible?
Shift the Focus from “Proof” to “Preponderance of Probability”
POSH investigations are not criminal trials. The standard is not beyond reasonable doubt, but preponderance of probability a civil law principle that asks, “What is more likely than not?”While you go through the investigation, ask yourself:
- Does the complainant’s story stay consistent?
- Is the respondent’s version reactive or defensive?
- Are there circumstantial indicators? (text messages, emails, change in behavior, sudden shift in reporting structure)
Even in the absence of witnesses, supporting evidence and behavioral patterns can tilt the scale of probability.
Don’t Undermine Emotional Evidence
Discomfort, distress, withdrawal, sudden absenteeism these are forms of emotional evidence. While harder to quantify, they are important signals.ICs should take a trauma-informed approach, especially when questioning complainants. Statements like:
- “I felt unsafe every time he came near me.”
- “I didn’t know who to talk to.”
- “I was afraid of retaliation.”
may not be hard proof, but they offer psychological context that supports the complaint narrative.
Documentation is Your Best Friend
- In the absence of witnesses, the credibility of your investigation relies heavily on meticulous documentation.
- Record every meeting, every line of questioning, every piece of submitted evidence.
- Log non-verbal cues, demeanor shifts, or signs of discomfort.
- Maintain a timeline of events and responses from both parties.
This not only strengthens the IC’s defence if challenged later but also reassures both parties of due diligence and fairness.
Technology and Digital Footprints
Workplace harassment isn’t limited to physical spaces. ICs should check:
- Emails / Slack conversation
- Screenshots of inappropriate messages
- Calendar entries, CCTV access logs, office swipe-ins
Digital trails often provide context or timelines that support (or contradict) the oral versions of events.
Be Aware of Internal Bias
“He said, she said” cases often test the unconscious biases of IC members. Common biases to watch for:
- “She waited too long to complain, so it must not be serious.”
- “He’s a top performer, this doesn’t sound like him.”
- “There’s no witness how can we believe her?”
These biases can derail objectivity. Use structured questioning and standardized templates for interviews to keep assessments evidence-based, not assumption-based.
Conclusion
It’s essential that ICs treat all complaints with the same rigor, whether it’s a “he said, she said,” “she said, she said,” or “they said” situation.
The guiding principle? Respect, empathy, and impartiality.
Complaints without supporting evidence may be complex but they are not unresolvable. With the right training, unbiased investigation, and a commitment to fairness, ICs can uphold the spirit of the POSH Act while ensuring workplace safety for all.
Organizations have a responsibility to provide training to their IC, not just in compliance, but in competence. Because workplace safety isn’t about ticking a legal checkbox it’s about building a culture of trust.
