India’s #MeToo and #TimesUp movements have begun, and how! Certain industries have been identified as virtual cesspools of harassing and abusive conduct. Even people in the know have been known to turn a blind eye towards this rampant evil. However, another problem which has come into the limelight is that most people are not even aware about the kind of conduct that is wrong and abusive, especially at the workplace. This could be because India did not have well-defined laws to prevent sexual harassment at places of employment before the 2013 legislation based on the Vishakha Guidelines. Even after coming into force of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, most workplaces still lack a structure, procedure and mindset to deal with such situations. More often than not, this lack of streamlining ends up worsening the situation for victims and survivors of harassment. Thus, today we have for you a simple FAQ to apprise you of the various facets of sexual harassment so that you can protect yourself from potential harassment and simultaneously ensure that your actions or those of people around you are not unwittingly causing harassment of your colleagues –
Q. What do you mean by a ‘workplace’?
A. As per the Act, a workplace comprises both organised and unorganised sectors including corporations, NGOs, Government organisations, residential houses (with respect to hired domestic help), educational and health institutions, service providers, cooperative societies, etc.
Workplace includes all such places where women either work or visit during the course of their employment. Thus, a hotel in which a female employee is attending a conference on behalf of her employer would also constitute a workplace.
Q. What conduct constitutes sexual harassment?
A. Briefly stated, sexual harassment is any unwelcome sexual gesture or behaviour. It can be direct or indirect. It can include, but is not limited to, the following –
- Sexually coloured remarks,
- Physical contact and advances,
- Showing pornography or obscene or sexist material,
- Demanding sexual favours in return for a promised promotion or better work profile (called Quid Pro Quo harassment), or
- Berating, demoting or giving poor performance reviews when someone rejects your advances (called Retaliatory harassment),
- Serious or repeated offensive remarks, such as teasing related to a person’s body or appearance;
- Offensive comments or jokes;
- Inappropriate questions, suggestions or remarks about a person’s sex life.
- Unwelcome social invitations, with sexual overtones commonly understood as flirting or Intimidation, threats and blackmail.
While this list may not be exhaustive, it provides a fair yardstick to assess workplace conduct against.
The above illustrations also portray how such harassment is usually perpetrated by an employer, senior, supervisor, etc., against a female employee. This skewed balance of power makes sexual harassment even more dangerous. Thus, any action of a senior which makes a subordinate employee feel uncomfortable or violated needs to be reviewed carefully. A clear distinction needs to be drawn between welcome and unwelcome conduct. Moreover, every person’s private space needs to be respected.
Q. What system is required to be put in place by employers to address instances of sexual harassment?
A. Firstly, every employer/organisation should ensure that they have a strictly implemented HR policy against harassment. This would prevent people from thinking they can get away with it without facing any consequences.
Secondly, the HR department should conduct annual anti-sexual harassment awareness and training programs which should be mandatory for all employees. This will enable employees to identify signs of harassment around them even if the victims are too scared to speak out.
Thirdly, every organisation having ten or more employees should constitute an Internal Complaints Committee to address instances of sexual harassment at the workplace in a timely manner.
Where an organisation has less than ten members, complaint against sexual harassment can be filed with the Local Complaints Committee (“LCC”) which is a government instituted body.
Q. What is an Internal Complaints Committee?
A. An Internal Complaints Committee (“ICC”) is supposed to be made up of at least four members in the following manner:
- A Presiding Officer who is a woman employed at a senior level at the workplace;
- At least two members from amongst other employees who should have experience in women’s issues or have some legal knowledge;
- At least one external member who can either be from an NGO or another organisation that works for women’s issues, or who has expertise in sexual harassment matters (like a lawyer).
It is important to ensure that at least half of this committee is made up of women.
Q. What is the complaint mechanism and process?
A. A female employee who has faced sexual harassment at her workplace can file a written complaint with the ICC within three months of its occurrence. If there are more than one instances, then she can file complaint within three months from the date of the last incident. In case she is unable to submit the complaint on her own, then the ICC can allow another person, conversant with the incident, to file the complaint on her behalf and with her prior permission.
The ICC is then obligated to conduct and complete its inquiry into the matter within 90 days of receipt of the complaint. After completion of inquiry, the Committee gets a further 10 days period to submit its report to the employer/organisation containing its conclusions, recommendations and proposed action to be taken.
The accused and the victim can appeal against such report within 30 days if they do not agree with or aggrieved with any part of it.
The employer/organisation needs to implement such recommended action within two months of receiving the ICC’s report.
Q. What measures/punishment can be taken against the offender?
A. Depending upon the nature of the harassment, various punishments can be meted out to the offender, such as, termination from service, undergoing a counseling session or carrying out community service. Deduction of compensation payable to the aggrieved woman from the wages of the respondent may also be inflicted as punishment. This compensation shall be based on the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; the loss of career opportunity due to the incident of sexual harassment; medical expenses incurred by the victim for physical/ psychiatric treatment.
Note: The Indian law against workplace sexual harassment only accounts for women as victims and men have been excluded from its ambit. Further, in order to take other legal measures against an offender, a separate criminal case would have to be filed against him.
This article has been authored by Varnika Jain from Team LawSkills.