Updated: October 10, 2018 3:42:34 pm
Over the last several days, a number of women in India have called out influential men — actors, standup comics, senior journalists — for alleged sexual harassment. Some of these allegations relate to actions of then colleagues of the women. How does the law define sexual harassment at the workplace? A look at the guidelines for recognising sexual harassment, and the action employers are to take:
Under what law is sexual harassment at the workplace covered?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. It defines sexual harassment, lays down the procedures for a complaint and inquiry, and the action to be taken. It broadens the Vishaka guidelines, which were already in place.
What were the Vishaka guidelines?
These were laid down by the Supreme Court in a judgment in 1997. This was on a case filed by women’s rights groups, one of which was Vishaka. They had filed a public interest litigation over the alleged gang-rape of Bhanwari Devi, a social worker from Rajasthan. In 1992, she had prevented the marriage of a one-year-old girl, leading to the alleged gang-rape in an act of revenge.
What do these guidelines say?
Legally binding, these defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, redress. The Supreme Court directed that they establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.
How does the 2013 Act broaden these?
It mandates that every employer constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees. It lays down procedures and defines various aspects of sexual harassment, including aggrieved victim — a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”, which means the rights of all women working or visiting any workplace, in any capacity, are protected under the Act.
How does it define sexual harassment?
Sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:
* Physical contact and advances
* A demand or request for sexual favours
* Sexually coloured remarks
* Showing pornography
* Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Women & Child Development Ministry has published a Handbook on Sexual Harassment of Women at Workplace with more detailed instances of behaviour that constitutes sexual harassment at the workplace. These include, broadly:
* Sexually suggestive remarks or innuendos; serious or repeated offensive remarks; inappropriate questions or remarks about a person’s sex life
* Display of sexist or offensive pictures, posters, MMS, SMS, WhatsApp, or emails
* Intimidation, threats, blackmail around sexual favours; also, threats, intimidation or retaliation against an employee who speaks up about these
* Unwelcome social invitations with sexual overtones, commonly seen as flirting
* Unwelcome sexual advances.
The Handbook says “unwelcome behaviour” is experienced when the victim feels bad or powerless; it causes anger/sadness or negative self-esteem. It adds unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.
Additionally, the Act mentions five circumstances that amount to sexual harassment — implied or explicit promise of preferential treatment in her employment; implied or explicit threat of detrimental treatment; implied or explicit threat about her present or future employment status; interference with her work or creating an offensive or hostile work environment; humiliating treatment likely to affect her health or safety.
For the ICC to act, must the victim write a complaint?
Technically, this is not compulsory. The Act says the aggrieved victim “may” make, in writing, a complaint of sexual harassment. If she cannot, any member of the ICC “shall” render “all reasonable assistance” to her for making the complaint in writing. And if the woman is unable to make a complaint on account of her “physical or mental incapacity or death or otherwise”, her legal heir may do so.
Is there a time-frame within which the complaint has to be made?
The Act states the complaint of sexual harassment has to be made “within three months from the date of the incident”. For a series of incidents, it has to be made within three months from the date of the last incident. However, this is not rigid. The ICC can “extend the time limit” if “it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period”. The ICC is to record these reasons.
Does an inquiry follow immediately?
Section 10 of the Act deals with conciliation. The ICC “may”, before inquiry, and “at the request of the aggrieved woman, take steps to settle the matter between her and the respondent though conciliation” — provided that “no monetary settlement shall be made as a basis of conciliation”.
How does the inquiry take place?
The ICC may forward the complaint to the police under IPC Section 509 (word, gesture or act intended to insult the modesty of a woman; maximum punishment one year jail with fine). Otherwise, the ICC can start an inquiry that has to be completed within 90 days. ICC has similar powers to those of a civil court in respect of the following matters: summoning and examining any person on oath; requiring the discovery and production of documents. While the inquiry is on, if the woman makes a written request, the ICC “may” recommend her transfer, leave for three months, or any other relief to her as may be prescribed. When the inquiry is completed, the ICC is to provide a report of its findings to the employer within 10 days. The report is also made available to both parties.
The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, the Act states, should not be made public.
What happens after the ICC report?
If the allegations are proved, the ICC recommends that the employer take action for sexual harassment for misconduct “in accordance with the provisions of the service rules” of the company. These will obviously vary from company to company. It also recommends that the company deduct from the salary of the person found guilty, “as it may consider appropriate”. Compensation is determined based on five aspects: suffering and emotional distress caused to the woman; loss in career opportunity; her medical expenses; income and financial status of the respondent; and the feasibility of such payment.
After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days
What happens if a complaint is found to be false?
Section 14 of the Act deals with punishment for false or malicious complaint and false evidence. In such a case, the ICC “may recommend” to the employer that it take action against the woman, or the person who has made the complaint, in “accordance with the provisions of the service rules”. The Act, however, makes it clear, that action cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”.
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