Law Of Sexual Harassment At Workplace: An Overview

Sexual harassment is antithetical to gender equality. It results in violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and the right to practice any profession or to carry on any occupation, trade or business under Article 19(1)(g) which includes a right to have a safe environment free from sexual harassment.

Meaning of Sexual Harassment

In India, the issue of sexual harassment at workplace came to the forefront in the year 1997 in a matter titled Vishaka v. State of Rajasthan [(1997) 6 SCC 241] before the Supreme Court of India. The Supreme Court defined sexual harassment as such unwelcome sexually determined behaviour (whether directly or by implication) as:

1. physical contact and advances;
2. a demand or request for sexual favours;
3. sexually coloured remarks;
4. showing pornography;
5. any other unwelcome physical verbal or non-verbal conduct of sexual nature.

In the absence of a legislation/statute on this issue, the Supreme Court laid down the following guidelines to eradicate the social evil of sexual harassment of working women at all workplaces:

• It shall be the duty of the employer to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of such acts by taking all steps required, such as:

1. Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways;
2. The rules/regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender;
3. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946;
4. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

• Criminal proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
• Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
• Complaints Committee: A Complaints Committee should be created in the employer’s organization for redress of the complaint made by the victim. It should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Supreme Court directed that the aforesaid guidelines would be binding and enforceable in law until suitable legislation is enacted by the government to govern the field.

Advent of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The foregoing guidelines formulated by the Supreme Court governed the field from August 13, 1997 until December 9, 2013 when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘Act’) came into effect. The definition of ‘Sexual Harassment’ in the Act is similar to the one framed by the Supreme Court in its aforementioned guidelines. ‘Workplace’ has been defined as any government or private sector organisation or establishment and includes a hospital/nursing home, any sports institute/stadium, any place visited by the employee during the course of employment including transportation by the employer for undertaking such journey and a dwelling place / house.

The Act prescribes that no woman shall be subjected to sexual harassment at any workplace. The Act makes it mandatory for every organisation / an employer of a workplace with more than 10 employees to constitute an Internal Complaints Committee (“Committee”) to adjudicate complaints of sexual harassment. The Committee shall consist of the following members to be nominated by the employer, namely:

1. a Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees;
2. at least two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge;
3. one member from amongst non-governmental organisations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
4. It is essential that at least half of the total members of the Committee shall be women. The Presiding Officer and every Member of the Committee shall hold office for a maximum period of three years.

Duties of the employer

The Act obliges every employer to:

1. provide a safe working environment at the workplace;
2. display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting an Internal Complaints Committee;
3. organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Committee;
4. provide necessary facilities to the Committee for dealing with complaints and conducting inquiries;
5. assist in securing the attendance of respondent and witnesses before the Committee;
6. make available such information to the Committee as it may require having regard to a complaint;
7. provide assistance to the woman, if she so chooses to file a complaint in relation to an offence under the Indian Penal Code or any other law;
8. cause to initiate action, under the Indian Penal Code or any other law against the perpetrator, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
9. treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
10. monitor the timely submission of reports by the Committee;
11. include in the annual report of the organisation, the number of cases filed and their disposal under the Act or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer to be notified by the appropriate government under the Act.

Penalty for non-compliance with provisions of the Act

An employer who fails toconstitute a Committee ortake action on a sexual harassment complaint or violates other provisions of the Act or any rules made thereunder, shall be punishable with fine which may extend to fifty thousand rupees.

If any employer, after having been previously convicted of an offence punishable under the Act subsequently commits and is convicted of the same offence, he shall be liable to:

• twice the punishment, which might have been imposed on a first conviction;
• cancellation of licence or withdrawal / non-renewal / cancellation of the registration of his business by the Government.

To conclude

Sexual harassment at workplace can be humiliating and lead to health and safety issues. It is appalling and discriminatory when a woman has reasonable grounds to believe that her objection to reprehensible conduct would disadvantage her in connection with her employment, including recruitment or promotion opportunities, or when it creates a hostile working environment. Therefore, it is imperative for all workplaces employing more than ten employees, to have in place a policy on sexual harassment which sensitises all employees on this critical issue, thereby ensuring a healthy and safe workplace culture. It shall also facilitate in building of confidence and respect for potential partners/vendors/clients of the organisation.