By Anushka Gupta
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Workplace Harassment is not an unknown issue in our country. Women in the workplace have long been subjected to belittling and demeaning behaviour, all of which have contributed to making women feel violated, discouraged and even threatened. In this article, I will be talking about one of the worst forms of this harassment, Sexual Workplace Harassment and discussing the steps that have been taken by the Law to prevent this kind of Harassment at the Organisation/Company Level.
The discourse around the topic, although present for longer, came into the forefront in 1997 with Vishakha and Ors. V. State of Rajasthan, a landmark Supreme Court Judgement which formed the Vishakha Guidelines – a set of norms laid for corporations and workplaces to be followed related to Sexual Harassment. These guidelines were later converted into legislation, namely the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which recognized among other things, the women’s Right to Work with Dignity.
Under this law, Sexual Harassment is defined as any subjectively unwelcome behaviours (direct or indirect). In general, the act includes the following situations:
1.
Physical Contact and
Advances
2.
A demand or request for
sexual favours
3.
Making sexually
coloured remarks
4.
Showing Pornography
5.
Any other unwelcome
physical, verbal or non-verbal conduct of a Sexual Nature
The subjective element of these guidelines is particularly noteworthy as it doesn’t expect the women to match up to some characteristics of an ‘ideal victim’ and even things that men tend to sometimes view as unobjectionable and do not hold themselves accountable for (sexually coloured jokes, causal sexist remarks, unwelcome compliments) may come into the ambit of the guidelines.
The aim of the
guidelines is to give women an environment where they’d feel safe and can work
with dignity. The other important objective is to give women a mechanism to
have their problems addressed formally. The guidelines explicitly state that
the onus of providing all of this is upon employers and companies. This would
include arranging for logistics, fulfilling costs and taking all the necessary
steps to ensure that the victim is heard. The responsibilities mentioned by the
guidelines and the 2013 act are:
●
Taking
Preventive Steps
All employers are required to take the appropriate steps to prevent instances of sexual harassment from occurring. This would entail:
a)
Expressly prohibit any
sexual harassment in the workplace and make sure the same message is notified
and circulated to all workers along with the definition of Sexual Harassment.
b)
The Rules and
Regulations of the Government and PSU’s should include the rules regarding
Sexual Harassment and provide appropriate penalties in the same. Similarly, Private
Employers must also lay down the same as per the Industrial Employment
(Standing Orders) Act which is a Law that makes Private Industrial
Establishments define their conditions of employment.
c)
All measures must be
taken to prevent a hostile work environment towards women. A hostile work
environment refers to the existence of behaviour in the office which makes any
worker feel uncomfortable, intimidated or threatened and insecure about their
employment. This kind of environment puts women more at risk.
●
Having
a Complaints Mechanism
Irrespective of whether the act can be deemed misconduct prima facie, there must be an appropriate complaint mechanism that is created in order for the victim’s complaint to be heard. This mechanism should be established within the organisation. This Complaints Mechanism has to necessarily provide for a Complaints Committee within the organisation. It must be provided with all necessary facilities for dealing with the complaint and the inquiry into it. This Complaints Committee must:
a)
Be headed by a woman,
usually a senior-level woman from within the organisation
b)
Have at least half of
its members be women
c)
Have at least one
individual who is not part of the organisation (in order to prevent the
possibility of undue pressure from senior members) be a part of it. This member
is generally from an NGO or any other body which works with issues like this.
d)
No less than 2 people
should be employees who are committed to the cause of women and must have prior
experience with socio-legal work.
e)
Make an annual report to
the Government with the details of complaints and the action taken by them.
Along with this report, it is also required that a general report on compliance
with the guidelines is made.
●
Actions
against the offender
When the conduct amounts to any specific offence under the Indian Penal Code or any other law, the employer must take action and assist the victim in making a complaint (if that is a remedy that the victim wishes to opt for). This lowers the burden on the employee. In addition, the victim should have the option to seek their own transfer or the offender’s transfer (if possible).
Whenever
the conduct (regardless of whether it is a Criminal Offence) amounts to
misconduct as defined in the Company’s regulation, appropriate disciplinary
action must be taken. Additionally, the guidelines place the onus upon the
employers to make sure that no undue discrimination takes place against the
victim when this happens. Even when the act has been done by a Third Party, the
employer must take all necessary steps to assist the affected employee for
taking action.
●
Awareness
It
is the duty of the employer to make sure that the female employees are aware of
their rights relating to the matter by notifying them about the rights under
the legislation through notification or any other suitable manner. Employees,
if they wish, must be allowed to raise any issues about the same in workers’
forums and employee forums without any repercussions.
In the event that a woman wishes to file a complaint under Section 9 of the Prevention of Sexual Harassment Act, she may make it in writing and address it to the Complaints Committee that has been constituted. In the situation that she wishes to resolve the issue by means of Conciliation instead, the opportunity for the same must also be provided by the Complaints Committee. In both cases, an inquiry follows and in the situation the accused is found guilty, the steps as mentioned above under ‘Actions Against the Offender’ are taken. Throughout the process, confidentiality is maintained.
Last but not the least,
the Act also provides compensation for the woman which is determined by Section
15. While determining the sum, the Complaints Committee is made to keep in mind
inter alia, factors such as (a)
Mental Trauma, Pain and Emotional Distress (b) Any loss in a career opportunity
(c) Medical Expenses occurred for Physical or Psychiatric treatment.
In the next part of the article, we shall be looking at how the Act functions at the level of Higher Educational Institutions.
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Anushka Gupta is a 2nd year law student at National Law University, Delhi. Her interests lie in Psychology, Economics, Philosophy and any other subject that uncovers a hidden side of the world. On most days, you’d find her listening to a podcast or playing the Ukulele. While eager to explore all fields in law, her inclinations are towards Jurisprudence, Corporate Law and Criminal Law at the moment.
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