Context
- Over the last several days, a number of women in India have called out influential men including actors, standup comics, senior journalists, for alleged sexual harassment.
- Some of these allegations relate to actions of then colleagues of the women. Here’s a look at the guidelines for recognising sexual harassment, and the action employers are to take:
Law that covers sexual harassment at the workplace
- 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.
- Vishaka guidelines were laid down by the Supreme Court in a judgment in 1997.
- Legally binding, these guidlines 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.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- 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 who can be a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment.
- This means that the rights of all women working or visiting any workplace, in any capacity, are protected under the Act.
- 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
- Defining 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
Handbook on Sexual Harassment of Women at Workplace
- 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:
- 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.
- An unwelcome behaviour is one which is illegal, demeaning, invading, one-sided and power based.
Time-frame to make the complaint
- 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 and 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.
The inquiry
- The ICC may forward the complaint to the police or 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 Act states that the identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken, should not be made public.
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.
- It also recommends that the company deduct from the salary of the person found guilty. 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
- The feasibility of such payment
- After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days.
