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Sexual Harassment At Workplace

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The violation of any right of women in terms of equality and liberty and any form of gender discrimination which violates fundamental rights of women is considered as Sexual Harassment at workplace.

Any harassment at workplace not only creates an insecure environment for women but it also discourages them to participate in the work culture. This situation may lead to hamper the inclusive grow and can affect economic empowerment.

Harassment at workplace may leads to what?

Sexual harassment at workplace is a kind of discrimination on basis of gender, that violates right fundamental rights of a women guaranteed in the Constitution under various articles such as Articles 14, 15 and 21 of the Constitution of India. It not only impedes there financial growth but also social and economic growth.

Background?

The foundation to deal with issues of sexual harassment at workplace was first dealt and recognized by Hon’ble Supreme Court in its landmark judgment i.e;. “Vishaka v. State of Rajasthan”, wherein Hon’ble Court framed certain guidelines and issued certain directions to the government of India to come with an appropriate law to deal with issues related to workplace sexual harassment basis on the rights sanctioned in the Indian Constitution and also accorded by the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). That included below:

  • A definition of sexual harassment
  • Shifting accountability from individuals to institutions
  • Prioritizing prevention
  • Provision of an innovative redress mechanism

The Supreme Court described sexual harassment as any unwelcome, sexually determined physical, verbal, or non-verbal conduct, that includes, any sexually suggestive remarks about women, demands for sexual favours, and sexually offensive visuals in the workplace. That also includes situations where disadvantage has been givent to a woman due to threat etc. this lead to take it a prime responsibility of an employers to ensure security of women and stop any intimidation or victimization etc.

After 16 years of the judgment, India’s enacted its first legislation that specifically addressed the issue of sexual harassment at workplace in 2013 i.e. the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”). Subsequently the Government notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”). Apart from that there was promulgation of the Criminal Law (Amendment) Act, 2013 (“Criminal Law Amendment Act”) in 2013 itself which has criminalized offences such as sexual harassment, stalking and voyeurism. The POSH Act was enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment. While the statute aims at providing every woman (irrespective of her age or employment status) a safe, secure and dignified working environment, free from all forms of harassment, proper implementation of the provisions of the statute remains a challenge.

Important Definition Under Posh Act

“Sexual Harassment” includes any one or more of the following unwelcome acts or behavior whether direct or indirect namely:

  • Physical contact and advances
  • A demand or for sexual favours
  • Making sexually coloured remarks
  • Showing Pornography
  • Any other unwelcome physical, verbal, non-verbal conduct of sexual nature Workplace" includes

    Government organizations, including Government company, corporations and cooperative societies;

    Private sector organizations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment, industrial, health related or financial activities, including production, supply, sale, distribution or service;

    Hospitals/Nursing Homes;

    Sports Institutes/Facilities;

    Places visited by the employee (including while on travel) including transportation provided by employer;

    A dwelling place or house

In 2010, Hon’ble High Court of Delhi endorsed the view that sexual harassment is a subjective experience and for that reason held:

“A complete understanding of the complainant’s view requires... an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women... Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement.... Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”

Procedure Under Posh Act

A. Complaints Committee

1. Internal Complaints Committee (ICC)

The POSH Act requires an employer to set up an ‘internal committee’ (“IC”) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment.

Constitution of the IC

Presiding Officer

Woman employed at a senior level at the workplace from amongst the employees.

Members

Not less than 2 members from amongst employees

Preferably committed to the cause of women or who have had experience in social work or have legal knowledge

External member

From an NGO or association committed to the cause of women or person familiar with issues relating to sexual harassment

Not less than half of the IC Members shall be women The term of the IC Members shall not exceed 3 years A minimum of 3 Members of the IC including the Presiding Officer are to be present for conducting the inquiry.

2. Local Committee (LC)

Constitution of the LCC

Chairperson

An eminent woman in the field of social work and committed to the cause of women

Local Woman

One of the members to be nominated from amongst the women working in block, taluka, tehsil or ward or municipality in the district.

NGO members

Two members, out of which, atleast one shall be a woman to be nominated from a NGO or an association committed to the cause of women or a person familiar with issues pertaining to sexual harassment .

Atleast one of the members should have a background in law.

Atleast one of the members should be a woman belonging to the Scheduled Castes or Scheduled Tribes.

B. Complaint Mechanism

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 IC or LCC, 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 complaint should be addressed to the IC members and not the employer/HR representative. The complaint should be concise, i.e. it should be written in simple language which can be understood easily. Complaints that are well written and presented properly have greater credibility. Details of exact incident, date and time, witness etc. to be included. Circumstances preceding and following the incident to be recorded. Whether the complainant asked the respondent to desist from the unwelcome act(s). Append as many documents as possible in whatever format i.e. relevant e-mails, screenshots of SMS’s/whatsapp messages, call details, photographs, recordings etc. Details of the respondent including name, designation, reporting structure between complainant and respondent if any (whether subordinate, colleague or superior). Do not state any fact that is false or incorrect. The relief that is sought from the employer.

C. Conciliation

Before initiating action on a complaint, the IC on the request of the aggrieved woman, can make efforts to settle the matter between the parties through conciliation by bringing about an amicable settlement. Conciliation is basically an informal method of resolving complaints before the complaint escalates into a fully blown formal inquiry. Thus, after a complaint of sexual harassment has been lodged, the aggrieved woman may request the IC to resolve the matter by conciliating between the parties before commencement of the inquiry proceedings, although monetary settlement should not be made as a basis of conciliation. Once the settlement has been arrived at, the IC or the LCC (as the case maybe) shall record the settlement arrived at and thereafter provide copies of the settlement to the aggrieved woman as well as the respondent. Once a settlement has been arrived at, the IC shall proceed with an inquiry under the POSH Act.

D. Timelines

  • Written complaints (6 copies) along with supporting documents and names and addresses of witnesses have to be filed within 3 months of the date of the incident. Timeline extendable by another 3 months.
  • Upon receipt of the complaint, 1 copy of the complaint is to be sent to the respondent within 7 days.
  • Upon receipt of the copy of complaint, the respondent is required to reply to the complaint along with a list of supporting documents, and names and addresses of witnesses within 10 working days.
  • The Inquiry has to be completed within a total of 90 days from the receipt of the complaint.
  • The Inquiry report has to be issued within 10 days from the date of completion of inquiry.
  • The employer is required to act on the recommendations of the IC/LCC within 60 days of receipt of the Inquiry report.
  • Appeal against the decision of the committee is allowed within 90 days from the date of recommendations.

E. Interim Reliefs

At the request of the complainant, the IC or the LCC (as the case maybe) may recommend to the employer to provide interim measures such as:

  • transfer of the aggrieved woman or the respondent to any other workplace;
  • granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement;
  • restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, which duties may be transferred to other employees.

F. Punishment And Compensation

The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

  • punishment prescribed under the service rules of the organization;
  • if the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and
  • deduction of compensation payable to the aggrieved woman from the wages of the respondent.

The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:

  • the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
  • the loss in career opportunity due to the incident of sexual harassment;
  • medical expenses incurred by the victim for physical/ psychiatric treatment;
  • the income and status of the alleged perpetrator; and
  • feasibility of such payment in lump sum or in installments

In the event that the respondent fails to pay the aforesaid sum, IC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

G. Frivolous Complaints

In order to ensure that the protections envisaged under the POSH Act are not misused, provisions for action against “false or malicious” complainants have been included in the statute. As per the POSH Act, if the IC/ LCC concludes that the allegation made by the complainant is 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 organisation can be taken against such complainant. Where the organisation does not have service rules, the statute provides that disciplinary action such as 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 may be taken. The POSH Act further clarifies that the mere inability to substantiate a complaint or provide adequate proof need not mean that the complaint is false or malicious.

H. Consequences Of Non-Compliance

If an employer fails to constitute an IC or does not comply with the requirements prescribed under the POSH Act, a monetary penalty of up to INR 50,000 (approx. US$ 900) may be imposed. 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. It is however unclear as to which business licenses are being referred to in this case. It is also pertinent to note that all offences under POSH Act are non-cognizable.

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