Sexual Harassment at Workplace

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Sexual harassment at workplace is a contentious and important subject with the rise in the share of women workforce in India. All big establishments are now under statutory obligation to handle the complaints of sexual harassment through the mechanism stipulated under the law. In the Vishakha Judgment, the Supreme Court observed as under:

The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

The government of India finally legislated upon the subject and after due deliberations, the legislation on the subject has come. The Act has been named as Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. It was passed by both the Houses of the Parliament and finally, the President of India has given the assent on 22nd April 2013.

With the advent of modern civilization and new lifestyles, the number of women in the workforce has been rising. It is noticed that there is little or no change in attitudes towards women in the mindset of the community. This is leading to incidents of sexual harassment at the workplace. There have been several instances of sexual harassment at the workplace in India with the increase in the share of the employment of the women in jobs. Statically women constitute about one-half of the global population, but at the workplace, they are placed at various disadvantageous positions due to gender difference and bias which lead to sexual harassment at the workplace.

Keeping in view tradition-bound society, our Constitution has made a number of safeguards for protecting the right and status of women from sexual harassment at workplace and one of such step in this direction is the enactment of the Act prohibiting sexual harassment at workplace. If we look towards the legal and Constitutional provisions, we can safely say that the Right to life means life with dignity. Gender equality includes protection from sexual harassment at workplace and right to work with dignity. A working woman is exposed to various hazardous situations which may lead to any kind of depravity due to sexual harassment at the workplace.

Thus sexual harassment at workplace leads to violation of her fundamental rights under Articles 14, 15, 19 and 21 of Constitution of India. The sexual harassment at the workplace can take place due to the vulnerable position of the women in the male-dominated world who control the process of recruitment and employment opportunities to a large extent.

The policies formulated in the employment of women in the services of the state have also been siding with the male domination but with the change of time, it has now been modified and amended to suit the requirements of the women employees in particular. The issue of sexual harassment at workplace has been taken up and redressed by the government now to tackle the menace of sexual harassment at workplace.

Section 3 of the Sexual Harassment of Women (Prevention, Prohibition, and Redressal) Act, 2013, contemplate that no woman shall be subjected to sexual harassment at any workplace. Some of the illustrative circumstances which may amount to sexual harassment can be as under:
(i) an implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interferes with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.

Sexual harassment at workplace also includes unwelcome sexually determined behavior such as:

• physical contact
• a demand or request for sexual favors
• sexually colored remarks
• showing pornography
• any other unwelcome physical, verbal or nonverbal conduct of a sexual nature.

An analysis of the above definition, shows that sexual harassment at workplace is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favor and other verbal or physical conduct with sexual overtones whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.

The circumstances described are not exhaustive and there can be several other situations leading to sexual harassment at the workplace which depends upon the facts of the cases independently. It’s intends to curb the menace of sexual harassment at workplace and exploiting the vulnerable position of the women in employment by the male dominating employment environment.

Duties of the employer to prevent sexual harassment at the workplace

Every employer shall
(a) provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;

(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting, the Internal Committee under sub-section (1) of section 4 of the Act providing that every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the Internal Complaints Committee?: Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices;

(c) organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act and orientation programs for the members of the Internal Committee in the manner as may be prescribed;

(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;

(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;

(f) make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;

(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offense under the Indian Penal Code or any other law for the time being in force;

(h) cause to initiate action, under the Indian Penal Code, 1860 or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

(i) treat sexual harassment as misconduct under the service rules and initiate action for such misconduct;

(j) monitor the timely submission of reports by the Internal Committee.

MECHANISM FOR SAFEGUARDING AND DEALING WITH SEXUAL HARASSMENT MATTER

An obligation has been cast upon the employer to constitute an Internal Complaint Committee at a workplace by an order in writing. However, where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices to curb the sexual harassment at workplace.

THE INTERNAL COMMITTEE TO DEAL WITH THE COMPLAINTS OF SEXUAL HARASSMENT:

The Internal Committee to handle the complaints of sexual harassment at the workplace shall consist of the following members to be nominated by the employer, namely:

(a) a Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees
Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section (1):
Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization;

(b) not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;

(c) 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:

Provided that at least one-half of the total Members so nominated shall be women.

The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.

The Member appointed from among the non-governmental organizations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed.

Where the Presiding Officer or any Member of the Internal Committee,

(a) contravenes the provisions of section 16; or
(b) has been convicted of an offense or an inquiry into an offense under any law for the time being in force is pending against him; or
(c) he has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest,
Such Presiding Officer or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by the fresh nomination in accordance with the provisions of this section.
In addition to above, it has also been provided that the appropriate Government may notify a District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as a District Officer for every District to exercise powers or discharge functions under this Act.

THE LOCAL COMPLAINTS COMMITTEE TO HANDLE COMPLAINTS RELATING TO SEXUAL HARASSMENT AT WORKPLACE:

It is also pertinent to state that the Local Complaints Committee to handle the complaints relating to sexual harassment at the workplace shall consist of the following members to be nominated by the District Officer, namely:

(a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;

(b) one Member to be nominated from amongst the women working in a block, taluka or tehsil or ward or municipality in the district;

(c) two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed:

Provided that at least one of the nominees should, preferably, have a background in law or legal knowledge:

Provided further that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;

(d) the concerned officer dealing with the social welfare of women and child development in the district shall be a member ex officio;
The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, from the date of their appointment as may be specified by the District Officer

Where the Chairperson or any Member of the Local Complaints Committee
(a) contravenes the provisions of section 16 of the Act pertaining to Prohibition of Publications or making known contents of complaint and inquiry proceedings; or
(b) has been convicted of an offense or an inquiry into an offense under any law for the time being in force is pending against him; or
(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest
such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by a fresh nomination in accordant with the provisions of this section.
The Chairperson and Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed.
Powers of the Committees to handle complaints of sexual harassment at the workplace
The internal committee or the local committee, as the case may be, shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) when trying a suit in respect of the following matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents; and
(c) any other matter which may be prescribed.
The internal committee or the local committee, as the case may be recommended to the employer to –
(a) transfer the aggrieved woman or the respondent to any other workplace; or
(b) grant leave to the aggrieved woman up to a period of three months; or
(c) grant such other relief to the aggrieved woman as may be prescribed.
The leave granted to the aggrieved woman under this section shall be in addition to the leave she would be otherwise entitled.
On the recommendation of the Internal Committee or the Local Committee, as the case may be, under sub-section (1), the employer shall implement the recommendations made under sub-section (1) and send the report of such implementation to the Internal Committee or the Local Committee, as the case may be.

Mechanism of complaint of sexual harassment at the workplace
The Act provides that any woman aggrieved by sexual harassment at the workplace may make, in writing, a complaint of sexual harassment at the workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of the last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for the reasons to be recorded in writing, extend the time limit not exceeding three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.

Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.

The internal committee or the local committee may before initiating an inquiry into the complaint by the aggrieved woman takes steps to settle the matter between her and the respondent through conciliation but such conciliation will not be by way of monitory settlement.

Penalties under the Act to prevent Sexual harassment at the workplace
Where the employer fails to
(a) constitute an Internal Committee under sub-section (1) of section 4;
(b) take action under sections 13, 14 and 22 i.e. inquiry report, punishment for false or malicious complaint or false evidence or including information in the annual report by the employee; and
(c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made thereunder,
he shall be punishable with fine which may extend to fifty thousand rupees.
If any employer, after having been previously convicted of an offense punishable under this Act subsequently commits and is convicted of the same offense, he shall be liable to
(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offense
Provided that in case a higher punishment is prescribed by any other law for the time being in force, for the offense for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;
(ii) cancellation, of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity
Sexual harassment at the workplace of female employees depicts the perversion of mind, feudal mentality, debility of thinking and downright mischief. It must be dealt either by psychiatric treatment or exemplary punishment or even both.

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