Article written by Akangsha Majumdar. Edited by Sugandha Nagariya.
After ages of struggle, a lot of women, based on their skills and abilities, have stepped into the world of today. Crashing all boundaries, they’ve started to mark their place and rightfully demand what they deserve.
However, the discriminations and violations of women’s rights have not come to an end with this.
With the women entering the mainstream workforce, sexual harassment at workplace achieved greater dimensions. Such action pull down the progress level of women, restricts the development of their working arena, harms their mental health, affects their social and economic growth and also puts them through physical and emotional suffering.
In the year 2013, laws were being amended to criminalise offences like sexual harassment. And the ministry of Women and Child Development enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, also known as the POSH Act.
Now, women have not only being the sole victims of sexual harassment. Men are victimised as well. Even though, sadly, the violations of men’s right in respect of sexual harassment had not received appropriate attention in the past, the issue is being looked into now.
Men’s rights against sexual harassment are as important as that of any women and thus are now, being given adequate response. The POSH Act does not, however deals with the issues of men in this regard. The Indian Penal Code (IPC) deals with the issues of both men and women’s sexual harassment.
Even after the implementation of laws preventing sexual harassment, many are not fully aware of the criminal consequences of sexual harassment. Inappropriate jokes and comments or eve teasing are normalised and thus, ignored.
Victims of such acts become hesitant to report and initiate actions against such acts in the fear of being misunderstood or disbelieved.
Not dealing with these issues at its initial stage can be a huge mistake for your business and can even destroy your business environment as well as communication among the employees, especially in the virtual work-environment wherein employees often are unable to disconnect from work.
Plus, these forms of erratic behaviour can be a strong reason causing for lack of safety in the workplace.
VISHAKHA V.S. STATE OF RAJASTHAN
The landmark Vishakha judgement was the very first time when the supreme court of India laid down the guidelines and issued directions to the Union of India to enact appropriate laws to prevent sexual harassment.
Until a specific law was framed and enacted, the Vishakha Guidelines, which were issued under article 32 of the Indian constitution, was to be followed as a mechanism to redress grievances.
The Vishakha judgement described Sexual Harassment to be inclusive of unwelcoming sexually determined behaviour (whether directly or by implications), like physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcoming physical, verbal or non verbal conduct of sexual nature.
There were many more cases that were reported and judgements were given by taking the Vishakha judgement as a precedent.
The Apparel Export Promotion Council vs A.K. Chopra case upheld the dismissal of a superior officer of the Delhi based entity Apparel Export Promotion Council. He was accused of sexually harassing a female co worker and was found guilty.
In the judgement, the Supreme Court, enlarging the definition of sexual harassment, stated that sexual harassment is not only unwanted physical advances but also any request for sexual favours, other inappropriate conduct with sexual overtones, directly or indirectly, and if the rejection of any such sexual favours affects the employees work performance or in any way creates a hostile working environment.
In the B. Medha Kotwal Lele & Ors. vs. Union of India & Ors case, a letter highlighting the improper implementation of the Vishakha guidelines was circulated which resulted in the government converting the letter into a writ petition and directing state governments to initiate appropriate steps and implement the Vishakha guidelines.
THE POSH ACT
Under the POSH Act, sexual harassment is defined in line with the SC’s Vishakha judgement. Sexual harassment includes unwelcoming sexually determined behaviour (whether directly or by implications), like physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcoming physical, verbal or non verbal conduct of sexual nature, under the POSH Act.
Under the POSH Act, an ‘Employee’ is defined as any individual engaged on a daily wage basis, either temporary or permanent, directly or indirectly, trainees and apprentices, probationers, co-workers, whether for remuneration or not, working on a voluntary basis or non voluntary, with the terms of employment being expressed or implied.
‘Workplace’ is also defined by the POSH Act, recognising that sexual harassment may not only be limited to the primary place of employment but beyond that as well. And thus, the concept of ‘extended workplace’ was introduced. According to the act a workplace includes any place which is being visited by an employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
INTERNAL COMMITTEE (IC)
The act suggests the setting up of an Internal Committee (IC), at each office to hear and redress grievances pertaining to sexual harassment.
It can be suggested that the IC should be comprised of members who are well versed with the POSH Act and its rules and with their responsibilities.
A minimum of 10 members are required to form an IC. The members should be approachable, accessible and understanding and at the same time should have good credibility and technical competency to handle grievance procedures.
The members of the IC should be unbiased in order to deliver a just decision. Being biased would lead to non reliability on the IC and thus, compromising with the entire motive of setting up an IC.
New methods and safety features shall be installed for the prevention of sexual harassment in work premises. Regular meetings and discussions should be held for and by the IC for better communication and suggestions by the employees and members of the IC.
The POSH Act grants the IC, the same powers as that of a civil court under the Civil Code of Procedures, while inquiring into any complaint of sexual harassment in workplace or regarding the enforcement of the attendance of any person and examining him on oath, the production of documents or any other matter which may be prescribed.
There shall be well built Complaint Mechanism in every workplace. A complaint should always be addressed to the IC and not to any other employee.
A complaint should include the exact date and time of the incident with witnesses being mentioned and in an understandable language and document that is relevant is to be provided. The necessary detail of the one who is accused is also to be provided accurately.
Conciliation is an arbitrary method to resolve the issue after a complaint is being filed by the victim, on his/her request. Before the inquiry begins, and the matter is taken up formally, an option of conciliation is to be provided for the settlement of the issue.
Monetary settlement shall not always be a basis of settlement. Once the conciliation is done, the IC has the responsibility to record it and provide each of the parties’ i.e., the accused and the victim, with copies of it.
THE REDRESSAL PROCESS
The redressal process is basically the summing up of all the processes we have covered up to now. It begins with the occurrence of the incident of sexual harassment at workplace.
The act of sexual harassment is to be notified to the IC, i.e. the Internal Committee, which is a must, in every work place under the POSH Act. The complaint which is being registered to the IC shall contain all valid information about the incident, like the date and time, along with the accurate details of the accused provided with relevant documents, if any.
The IC is to initiate an arbitrary dispute resolution method, also known as conciliation, on the request of the victim. The conciliation should not always be monetary based.
The IC is required to record the conciliation, if any, and provide each of the party with relevant copies of it.
Now, if there wasn’t any conciliation the IC is supposed to take things up formally and make a report of inquiry. The IC has the powers of the civil court with regards to the attendance of any person related to the complaint and examining him/her and demanding required documents as per the complaint necessitates.
If the IC, in its inquiry, finds any misconduct, or that no action by employer is taken or a false complaint was being lodged, can appeal to the court.
The workplace employee may provide the aggrieved with interim measures such as;
- Granting the aggrieved with a leave of a reasonable time.
- Preventing the accused from any further accessing of the aggrieved person’s working space.
- Transfer of the aggrieved shall be provided, at the option of the aggrieved.
PUNISHMENT AND COMPENSATION
According to the POSH Act, the punishment of sexual harassment at workplace shall be;
- Any punishment under the service rule of the organisation.
- Warning, written apology, withholding of promotions or increments, or termination of service, whichever may deem fit.
- The compensation that is to be paid to the aggrieved shall be deducted from his/her salary.
The compensation that is to be paid to the aggrieved shall be determined on the basis of-
- The mental and emotional trauma, pain and suffering caused to the aggrieved.
- Medical expenses incurred by the aggrieved.
- The income and status of the alleged perpetrator.
- Feasibility of such payments
- The loss in career opportunity due to the sexual harassment of the aggrieved.
To ensure that the POSH Act rules and provisions are not misused and no false or malicious complaints are lodged, a separate statute is been provided that states that if any complaint is found to be false or malicious and is proven to have misleading information, then disciplinary actions as per the service rules are to be taken against the complainant.
And, in the absence of the company’s service rules, disciplinary actions such as written apology, withholding of promotions or increments, or termination of service, warning, undergoing counselling, whichever may be deemed fit.
The issue of sexual harassment is very sensitive and thus, recognising this, the POSH Act ensures that the details of the complaint lodged and other related information is kept confidential.
Also the Act specifically stipulates that information regarding sexual harassment at workplace shall not be subject to the Right to Information Act, 2005. The Act prohibits the dissemination of the identity of the complainant, his/her address, witnesses or any other information and vice versa for the accused.
Where any breach of this is caused by any person obligated to maintain confidentiality, or is entrusted to make inquiries and handle the complaint, he/she would be punishable under the service rules or in the absence of service rules is liable to pay a fine of Rs. 5000.
If any employer fails to set up an IC in their workplace or the necessary requirements prescribed as under the POSH Act, they would be liable to pay a monetary compensation of up to 50,000 Rs.
And if any such offence is being repeated, the punishment would be doubled and may result in the cancellation of registration of the organisation or the revocation of business licences. All offences under the POSH Act are non cognizable.
THE DUTIES AND OBLIGATIONS OF THE EMPLOYER
- The employer has a duty to set up an IC in their workplace as under the POSH Act, and provide with the other necessary needs as under the act.
- Creating awareness of the facilities provided by the entity with regard to sexual harassment amongst the employees.
- Removing every factor that may prove to be a reason behind the creation of a hostile working environment in the workplace.
- Ensuring a safe working environment for every employee.
- Conveying the consequences of being involved in any act that may constitute sexual harassment in workplace.
- Spread about the IC and all the members of it along with their details.
- Organising workshops and meetings to sensitize the employees on the issues and implications of sexual harassment at workplace.
- Providing the IC with necessary equipments to lodge complaints and take necessary steps.
- Amending the service rules stating sexual harassment as misconduct and also mentioning adequate punishment or compensation.
- Preparing annual reports with the details of the number of cases and how the issue was resolved and submit it to the District Officer.
- To take relevant actions under the Indian Penal Code, 1860(IPC), or any other law applicable against the accused or howsoever the aggrieved desires, appropriately.
- The concept of ‘Extended workplace’ shall be explained.
- Let the employees being aware of the complaint mechanism.
- Inform about the acceptance of the conciliation method, in case, the aggrieved wishes not to let the issue being taken up formally by the IC.
OTHER LAWS AVAILABLE FOR SEXUAL HARASSMENT AT WORKPLACE
- Industrial Employment (standing orders) Act, 1946.
It is a central enactment that states the requirement of the employer of an entity to define and publish uniform conditions of employment. The Model Standing Orders of the Industrial Employment Act prescribes a list of act constituting misconduct and specifically includes sexual harassment.
- Indian Penal Code, 1860 (IPC)
Any conduct that may be constituted as sexual harassment not only violates the Prevention of Workplace Sexual Harassment Act, but also constitutes an offence under IPC. The charges are under section 354, section 354-A, 354-B, 354-C, 354-D, and 509.
WHAT AMOUNTS TO SEXUAL HARASSMENT
The following is a list of conduct that amounts to sexual harassment:
- Unwanted sexual advances
- Unwelcoming sexual gestures
- Offering employment benefits in exchange of sexual favours.
- Display of sexually suggestive objects.
- Usage of derogatory comments or jokes.
- Being exposed to other’s private parts in an unwanted manner.
- Threatening to retaliate after a negative response to sexual advances.
- Unwanted physical conduct or assault or any other inappropriate movements.
- Taunting regarding the physical appearance of a person.
- Sexist remarks
- Implying the rejection of promotion or personal development if a negative response to sexual favours are received.
- Sexually slanted or obscene jokes likely to cause embarrassment.
- Physical confinement against one’s will.
- Violation of privacy
- Suggesting promotion, recruitment in exchange of sexual favours.
- Display of pornographic or other derogatory material.
VICTIMS OF SEXUAL HARASSMENT AT WORKPLACE
Both men and women can be the victims of sexual harassment. The POSH Act, however deals with only the protection of women and safety measures available for women at workplace. Discrimination or sexual violence against men have also been age old but have recently surfaced on the front and the Indian Penal Code (IPC) deals with it.
TIME LIMIT FOR FILING A COMPLAINT OF SEXUAL HARASSMENT
A sexual harassment complaint needs to be filed within a time limit of 3 months from the date of the incident.
In case, there is a series of incidents of sexual harassment then a complaint is to be filed within a time limit of three months from the date of occurrence of the last incident.
Wrapping It Up
Sexual harassment is a legally recognised form of sexual discrimination. The steps taken to prevent sexual harassment in workplace may vary considerably in every entity.
Therefore the reviewing of their prevention policies by the employers is a must.
The persistent nature of sexual harassment in workplace, despite 20 years of legislation making such conduct unlawful, requires constant monitoring and vigilance in order to reduce its incidence.
There are new measures being taken up like the ‘SHE box’ which stands for Sexual Harassment Electronic Box. This is an online platform for female employees to raise complaints and issues regarding sexual harassment at workplaces.
The sexual harassment against men is still ignored in a huge number even today.
Even though the IPC deals with the issues of men’s sexual harassment, awareness about this is a must. Although there is no specific provision relating to that, businesses may incorporate that too in their dealings on sexual harassment.
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Author Bio: Akangsha Majumdar is a B.A,LLB(H) student from Presidency University, Bangalore and an intern at WinSavvy. Connect with her on LinkedIn.
Editor Bio: Sugandha Nagariya is a law student at GLC, Mumbai and is an intern at WinSavvy.com. Connect with her on LinkedIn.