Exploring sexual harassment at the workplace, Act 2013


Safe working environment for women is an often discussed topic. The article is an overview of the law relating to sexual harassment at the workplace in India, in the light of the Act in this regard, enacted in 2013. It also provides the legislative history of the Act, that includes the Vishakha Guidelines drafted by the Supreme Court in 1997 and a few loopholes in the current Act.

Introduction

Sexual Harassment is a form of sexual discrimination. Our country is rooted in patriarchal beliefs where women are placed at an inferior position and expected to be submissive. Women shattering glass ceilings have not gone down well with all men who believe this to be an invasion in their territory. Sexual harassment is often looked at as "harmless flirtation" or "natural male behavior" that women enjoy.

However, sexual harassment, when all its ingredients are known in entirety, is a serious offence and it becomes imperative as more and more women join workplaces that a sound understanding of the basic laws is there for women to know when and how to take actions.

Sexual harassment is a violation of a women's right to equality under Article 14 and prohibition of discrimination on grounds of race, religion, caste, sex, or place of birth under Article 15 and also her right to personal liberty and to exist with dignity under Article 21 of the Constitution of India.

Article 19(1) (g) of the Constitution provides the right to "practice any profession, or to carry on any occupation, trade or business" granted to all citizens of India. Sexual harassment also violates this fundamental right of the woman concerned.

It also violates universally recognized human rights conventions and goes against the Convention on the Elimination of All Forms of Discrimination against Women, 1979, popularly known as CEDAW, which was ratified by the Government of India in 1993.

The Background

In the year 1997, the Indian Judiciary framed certain guidelines regarding the sexual harassment of women at the workplace. The genesis of the law of sexual harassment was the famous case of Vishakha and Others v. State of Rajasthan and Others, 1997.

The guidelines were framed keeping in mind the fact that coming up of a specific legislation may take a considerable amount of time and the fact that the civil and penal laws in India, back then, did not adequately provide for specific protection of women from sexual harassment in work places.

In 1992, a rural social worker, Bhanwari Devi was raped by some men in a particular community when she stopped the marriage of a one-year old in that community. Subsequent to this heinous act, Vishakha and a few other women's rights groups filed a Public Interest Litigation (PIL) against the State of Rajasthan and the Union of India for law against sexual harassment faced by women at the workplace.

In conformity with international principles, the Supreme Court framed the legally binding guidelines in the absence of any specific legislation.

The Vishakha Guidelines were extremely relevant. It included a definition of sexual harassment. It also shifted accountability from individuals to institutions, prioritized prevention and introduced innovative redress mechanism. It held that sexual harassment is not just a matter of personal injury alone. It imposed three obligations on institutions: prevention, prohibition and redress.

Sexual Harassment at the workplace (Prevention, Prohibition and Redressal) Act, 2013

The Vishakha guidelines were followed for several years till the Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act, 2013; an Act consistent with the Vishakha guidelines came into effect on 9th of December, 2013. The Bill of this Act was introduced in 2007 by Krishna Tirath, the then Minister of Women and Child Development.

The Government has also notified rules under the Prevention of Workplace Sexual Harassment Act.
The definition of sexual harassment has been kept the same as that of the Vishakha Guidelines and includes such unwelcome sexually determined behavior (whether directly or by implication) as: physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The act can be impliedly/explicitly sexual in nature. Acts like staring, leering, obscene gestures, howling, kissing, smacking lips, blocking, using force, asking about one's sexual fantasies, interests etc, constitutes sexual harassment.

The Act recognizes the right of every woman to a safe and secure workplace environment irrespective of her age or employment/work status. Hence, the right of all women working or visiting any workplace whether in the capacity of regular, temporary, ad hoc, or daily wages basis is protected under the Act.

A workplace is defined as "any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey." The Act introduced the concept of "extended workplace."

The Act extends to government bodies, private and public sector organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and a dwelling place or a house. Thus, even the houses where domestic servants work come under the ambit of workplace.

It is to be noted that power dynamic form the core essence of sexual harassment as this occurs usually in a matrix of power. Moreover, it is the impact of the act and not the intent that holds relevance. Sexual harassment is a subjective experience and thus each case must be examined separately. The impact of such unwelcome behavior is negative and hampers the woman concerned, both physically, psychologically that eventually affects her productivity.

By being deprived of a safe and secure environment, she is unable to perform to her fullest abilities and thus losses promotional opportunities.

The Supreme Court in Dr. Punita K. Sodhi v. Union of India & Ors. W.P., 2009, explained the fact that sexual harassment is a subjective experience and each case requires that the same must be analyzed from the complainant's perspective. The man's idea of what is objectionable and what is within limits may differ from that of the women. Hence, it becomes imperative to take a wide view of this issue on a case-by-case basis.

Forms of sexual harassment

Sexual Harassment can be done in two ways; firstly, through the mechanism of quid pro quo and secondly by creating a hostile working environment.

The former essentially implies that should the woman refuse her predator's advances, her promotion is denied and if only she responds affirmatively, she is given a favorable treatment. Basically, any good/detrimental behavior meted to her is dependent on her response to the unwelcome/inappropriate behavior made by the person in the position of power.

The latter implies that when the woman refuses the sexual requests/advances made to her, she becomes compelled to work in a hostile/offensive/intimidating environment created by the predator that induces fear in her.

Preventive measures

Under the 2013 Act, mandate has been cast upon the employer of the particular workplace to ensure that no incident of sexual harassment occurs and should any such unfortunate event happen, it is his responsibility to ensure that due procedure as per the 2013 Act is followed.

He has to take effective steps in generating awareness and ensure that his workplace has an internal policy in this regard and the same is widely disseminated amongst his employees. He can also organize sensitization programmes at regular intervals so that later, no employee can claim ignorance. He must extend all possible assistance to the Committees (mentioned below) to facilitate their functioning and also the woman concerned. He is also required to prepare an annual report with details on the number of cases filed and their disposal and submit the same to the District Officer.

Complaints mechanism

The Act provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints Committees must have 50 per cent representation of women.

It is mandatory that any workplace having more than ten employees should have an ICC. The ICC must consist of a chairperson and minimum of two members having legal knowledge/experience in the field of social work or matters pertaining to women and one member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

As for the LCC, The District Officer will constitute such a commission in every district so as to enable women in the unorganized sector or small establishments to work in an environment free of sexual harassment.

ICC is required to be set up at every branch/ office of the company wherein at least 10 employees are employed.

Powers of the ICC/LCC

The aggrieved woman is required to lodge a complaint within 3 months of the unfortunate incident or in a series of incidents, the last date of such incident, to the ICC or the LCC. The ICC/LCC is vested with the powers of a civil court under The Code of Civil Procedure, 1908. They can summon and enforce the attendance of any person and examine him under oath. They can also ask for discovery and the production of documents.

The woman lodging the complaint is required to submit sex copies of the written complaint. If due to reasons like physical incapacity, mental incapacity or death of the aggrieved woman, the Act provides for friends, relatives, co-workers, psychologist, psychiatrists, etc. to file the complaint.

On the filing of a complaint of sexual harassment, an inquiry must be conducted and the same must be completed within a period of 90 days.

Punishment provisions

The guilty can be punished under the service rules of the organization or in the absence of the same, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counseling session, or carrying out community service are other punishments prescribed.

The statute also envisages payment of compensation to the aggrieved woman on grounds of mental trauma, loss in career opportunity, medical expenses incurred by the victim due to physical/psychological treatment etc.

Conclusion

Every Act is fraught with some difficulties or the other.

The Act mandates that at least half the members of the ICC should be women and it should be headed by a senior-level woman employee of that workplace. In case a senior-level woman employee is not available for a particular workplace then such a person can be nominated from another workplace of the establishment.

The Act completely overlooks the fact that a particular workplace (department or branch office) may have no senior-level woman employee, or the requisite number woman employees to constitute the ICC. Many establishments are facing practical difficulties in constituting a committee.

The Act provides that no monetary settlement can be effected between the two parties. However, employers who wish to preserve the brand image of their company/organization may in some form or the other, coerce the complainant to "settle" the matter between her and the accused person. The problem with conciliation is that the Act does not provide any time limit to either conduct or complete the conciliation proceedings. Also, no appeal can be made against an order of settlement arrived at through conciliation.

The Act does not cover agricultural workers and also women working at the armed forces which are essentially male-dominated.

The Act has also received considerable criticism for not being gender-neutral and not envisaging men as victims.

Nevertheless, it can be thus stated that the Act of 2013 is very comprehensive and has provisions that have been formulated keeping in mind a lot of relevant factors.

The element of confidentiality ensures that the complaint and connected information are not privy to The Right to Information Act, 2005. The complainant's identity remains protected. Breach of confidentiality also entails fine of Rs.5000 upon the person entrusted with this task This aspect encourages women to come forward to take necessary action against the act of sexual harassment without fear of being victimized or looked down upon. She can continue working in a safe and secure environment, devoid of any unnecessary attention toward her that might affect her work performance.

Moreover, the Act also provides for "frivolous complaints" wherein a person lodges a false or malicious or the complaint has been made knowing it to be untrue or forged or misleading information has been provided during the inquiry, disciplinary action in accordance with the service rules of the organization can be taken against such complainant. This is done to keep a check on the misuse of this women-friendly legislation to ensure that no woman lodges any frivolous complaint against someone for any reason whatsoever.

Despite such well-formulated provisions, the downside is that, as per a FICCI-EY November 2015 Report: 36% of Indian companies and 25% of multi-national corporations are not compliant with the Act.


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Comments

Author: Kailash Kumar02 Sep 2016 Member Level: Platinum   Points : 2

Yet another dimension of the issues concerned was addressed in a report which looked into the aspects of the development of 'closeness' among employees of opposite genders after working for long hours together over a period of time. In few cases, such 'closeness' culminates in romantic relationships which affect the working environment and impact the productivity also on turning sour. The report observes that such relationships are like a ticking time bomb which may lead to sexual harassment cases despite such relationships being consensual in nature initially.
When the supervisors and subordinates get romantically involved with the subordinates of opposite gender issues like perceived favouritism by other employees, a diminished credibility of the supervisor in the eyes of the team members, privacy and violations of company policy etc. arises.
Thus it appears that the law - Sexual Harassment at the workplace (Prevention, Prohibition and Redressal) Act, 2013 has no teeth to effectively deal with consensual romanticism at workplaces.



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