Sexual harassment in the workplace is, unfortunately, more common than we can think. As an abstract concept, “sexual harassment at workplace” is hard to define. Bullying of a sexual nature or an inappropriate promise of rewards in exchange for favors of sexual nature are just a few of the many examples of sexual harassment at workplace.
India did not have any complete law to protect women against sexual harassment at workplace until 2013 when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Prevention of Workplace Sexual Harassment Act”) was enacted by the Parliament which came into force in December 2013.
Vishakha v. State of Rajasthan [(1997) 6 SCC 241]
The 2013 Act is broadly based on the Supreme Court guidelines issued in the case of Vishakha versus the State of Rajasthan in 1997. The above was the landmark judgement by the Supreme Court of India that led to the start of a conversation about sexual harassment at workplace in India.
The facts behind the case were that of the brutal gang rape of Bhanwari Devi in Rajasthan. Bhanwari Devi was a social worker who was gang raped as a reaction to her stopping a child marriage from taking place. The judgement is a landmark because the Supreme Court laid down guidelines for addressing sexual harassment of women at workplace, which is known as the “Vishakha Guidelines”, effectively filling a void in Law.
The Supreme Court also made an unprecedented observation that it is the duty of the judiciary to ensure that Indian laws need to be in sync with international obligations. The judgement stated that international conventions ensure the safety and dignity of women at workplace and it is on the legislature to ensure that such international frameworks are adopted in India to ensure that human rights and the dignity of women are preserved. Sexual harassment is a form of discrimination of women at the workplace and to ensure gender equality, it must be eliminated.
- It is the duty of the employer to prevent sexual harassment of women in the workplace.
- In case of occurrence of such sexual harassment, the employer must provide for proper dispute resolution and compensation.
- What is and what is not sexual harassment was defined by the guidelines, but left the scope of such definition open, so that the facts of each case may be applied. It also explicitly stated that physical contact is NOT necessary for an act to be classified as sexual harassment. The intent behind the act must be looked at.
Overview of important provisions of the Prevention of Workplace Sexual Harassment Act
- The Act is not gender neutral, as Section 2(a) lays down the definition of “aggrieved woman”.
- Section 2(f) gives a wide scope to the definition of “employee” and includes regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees etc. Further, the definition of “sexual harassment” is also wide in its scope as the definition in 2(n) “states any one or more of the following unwelcome acts or behaviour (whether directly or by implication)”.
- Section 2(o) lays down the definition of “workplace” as an extended workplace, covering any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
- The Act requires an employer to set up an ‘internal complaints committee’ (“ICC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment, as per Section 4 of the Act.
- Under Section 6 of the Act, an aggrieved woman who intends to file a complaint is required to submit six copies of the written complaint, along with supporting documents and names and addresses of the witnesses to the ICC, within 3 months from the date of the incident and in case of a series of incidents, within a period of 3 months from the date of the last incident. The ICC can extend the timeline for filing the complaint, for reasons to be recorded in writing, by a period of 3 months.
The law also makes provisions for friends, relatives, co-workers, psychologist, psychiatrists, etc. to file the complaint in situations where the aggrieved employee is unable to make the complaint on account of physical incapacity, mental incapacity or death.
- Section 10 allows the ICC to ask the aggrieved and the respondent to settle matters through conciliation prior to an inquiry under Section 11. This enquiry is initiated by the ICC or in case of a domestic worker, by the police, on a recommendation of the Local Committee.
- Under Section 12, during the pendency of the inquiry, on request of the aggrieved, the ICC may recommend employer to transfer the woman to another workplace, grant leaves up to 3 months or any other relief as may be prescribed.
- The members of the ICC are as follows: A woman employee as the presiding officer; no less than two employees as regular members; an external member from an NGO working for the benefit of women. Members must preferably be socially aware and have some legal knowledge.
Acts that constitute sexual harassment
It is imperative to remember that the determination of sexual harassment in the workplace is subjective in nature.
It is the impact of the incident and not the intent that matters. The perpetrator is usually in a position of power over the victim. Sexual harassment may be a single incident or may occur several times over a period of time.
Acts that may constitute sexual harassment are listed below:
- Unwanted physical advances
- Unwanted physical contact
- Requesting sexual favours and threatening consequences for not granting them
- Showing pornography
- Any unwanted sexual conduct, whether physical, verbal or non-verbal
Some duties of employer under Part VI of the Act
- Provide a safe working environment
- Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention, and redressal of sexual harassment at the workplace
- Display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the ICC
- Declare the names and contact details of all members of the ICC
- Provide necessary facilities to the ICC for dealing with the complaint and conducting an inquiry
- The employer is also required to monitor the timely submission of reports by the ICC
- If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and or de-registration of the entity or revocation of any statutory business licenses. This is provided in Section 26 of the Act.
Compliance checklist for a company under the Act
- Create an Anti-Sexual Harassment policy for the Company.
- Confirm that sexual harassment is specified as a form of misconduct under the employment contract or applicable service rules.
- Constitute an Internal Complaints Committee (ICC) for each branch or office which has 10 or more workers.
- The annual report must be sent by ICC to employer and district officer containing prescribed details of sexual harassment proceedings.
- Annual report of the business must include information about pending and resolved sexual harassment cases.
- Display notices at prominent places on the organization’s premises which inform employees about the organization’s consequences of engaging in conduct which amounts to sexual harassment, and information about the members of the ICC.
- Conduct periodic workshops and seminars to sensitize employees about their rights.
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