Sexual Harrasement 68311a

MANAN CHHABRA SEXUAL HARASSMENT AT WORKPLACE FACULTY OF LAW, ICFAI, HYDERABAD 11FLUHH0102191

A REPORT ON

Sexual Harassment at Workplace- A case study

SUBMITTED BY: Manan Chhabra

A Summer Internship report submitted in the partial fulfillment of BBA.LLB Program of ICFAI, Hyderabad.

Submitted to: FACULTY GUIDE

PROJECT GUIDE

Dr. L.Laxmi

Mr. Poonam Das

IBS, Hyderabad

Bhasin and Bhasin

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ACKNOWLEDGEMENT

I hereby take this opportunity to thank Bhasin and Bhasin Associates for providing me an exposure in the field of Labour Law through the course of my summer internship. I would like to express my sincere gratitude towards my project guide Mrs. Poonam Das, for providing me great insights about Labour Law, Firm’s area of practice, for guiding me all throughout and for being a great . I would also like to thank Dr.L.Laxmi, my faculty guide for instructing me and giving me her valuable advice on my project.

Thanking You, Manan Chhabra

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Table of Contents Introduction 2 Glossary

3

Important with respect to sexual harassment 5 Legal Aspects of Sexual Harassment at workplace 7 Extent of Sexual Harassment at workplace 9 Salient Features of Sexual Harassment Act 10 Case Studies……………………………………………………………………………………… …….12 Cause of Concern…………………………………………………………………………………… ….20 Cost of Non Compliance………………………………………………………………………………..2 1 Recommendations and Suggestions…………………………………………………………………….22 Analysis/ Conclusion………………………………………………………………………………….. .24

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Introduction Sexual harassment at the workplace is not a new thing but centuries old-at least if we define sexual harassment as unwanted sexual relations imposed by superiors on the subordinates. Sixty per cent of working women have faced sexual harassment at some point of time in their working lives. For every woman who raises an outcry, there are hundreds of others who suffer in silence, quit their jobs or get transfers. For years, sexual harassment was considered an unavoidable part of a working woman's life. Now awareness is slowly rising that no woman (employee) should humbly accept sexual harassment as part of her/his lot. Women have faced coercion at the workplace since time immemorial to the extent of grave physical and mental injury. Most modern s of history of sexual harassment at the workplace agree that recognition of this problem gathered momentum from the early 20th Century. Sexual harassment has been recognized as most intimidating, most violating form of violence since long in countries like UK, USA and many countries have not only taken note of how degrading experiences of sexual harassment can be for women as well as employers but have adapted legislative measures to combat sexual harassment. Quid pro quo and hostile work environment are the two broad types of sexual harassment. Sexual harassment at workplace is generally classified into two distinct types. 'Quid pro quo', means seeking sexual favors or advances in exchange for work benefits and it occurs when consent to sexually explicit behavior or speech is made a condition for employment or refusal to comply with a 'request' is met with retaliatory action such as dismissal, demotion, difficult work conditions. 'Hostile working environment' is more pervasive form of sexual harassment involving work conditions or behavior that make the work environment 'hostile' for the woman to be in. Certain sexist remarks, display of pornography or sexist/obscene graffiti, physical /brushing against female employees are some examples of hostile work environment, which are not made conditions for employment.

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Glossary Workplace: The workplace is any area where the employee is required to represent, carry out, perform or implement any duties, obligations or services required. By this token, a home would be a workplace for a domestic maid. For a person engaged in a field job, the area that she/he covers in the course of her/his work represents her workplace. Sexual harassment: Sexual harassment is described as harassment in subtle ways, which may include sexual implications, inappropriate sexual gestures and propositions for dates or sexual favors. In more blatant forms, such harassment may include leering, pinching, grabbing, hugging, patting,

brushing

against

and

touching.

The Supreme Court's guidelines describe physical or advances; demand or request for sexual favors; sexually colored remarks and showing pornography as offensive conduct. Sexual harassment becomes even more serious when the granting of sexual favors is made a term or condition of the individual's employment, when it interferes with the individual's work performance or it creates an intimidating or hostile work environment. The offensive conduct could be exhibited by a superior, a colleague, a subordinate or a client

Guidelines governing Sexual Harassment at the workplace:

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Sexual harassment results in the violation of the fundamental right to "gender equality" and "the right to life and liberty" besides the right under Article 15 of the Constitution (which deals with the prohibition of discrimination on grounds of religion, race, caste, creed or sex). Keeping these rights in mind, the Supreme Court has ed twelve guidelines that have the force of law. They were taken by a division bench as there was "an absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at the workplace." These guidelines are to be observed until legislation is enacted (ACT of 2013). Some of these guidelines are: It shall be the duty of the employer or other able persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment. The employer should initiate action in accordance with the law by making a complaint with the appropriate authority. Victims should have an option to seek their own transfer or that of the perpetrator. A complaint mechanism should be created in the organization. This complaint mechanism should ensure time-bound treatment of complaints. The complaints committee should be headed by a woman and not less than half of its should be women. In order to prevent the possibility of undue pressure or influence from senior levels, a third party, especially an NGO familiar with sexual harassment, should be involved in the complaints committee. The committee must submit an annual report to the government. Employees must be allowed to raise the issue of sexual harassment at various group meetings. The guidelines also provide for the initiation of criminal proceedings where sexual harassment is proved beyond doubt. Employer's responsibility: The employer is responsible for creating appropriate working conditions for health, work, 4

leisure and hygiene. When the victim complains to the employer, the burden is on the employer to make apt investigations. If the employer does not pay attention to the complaint, he can be held responsible. The employer must set up a complaint mechanism in each department of the company. The Supreme Court's guidelines are binding on Central and State governments and the private and public sector.

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IMPORTANT WITH RESPECT TO SEXUAL HARASSMENT UNWELCOME BEHAVIOUR is the critical word. Unwelcome does not mean "involuntary." A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances. SEXISM is an attitude. It is an attitude of a person of one sex that he or she is superior to a person of the other sex. For example, a man thinks that women are too emotional. Or a woman thinks that men are chauvinists. SEX DISCRIMINATION is a behavior. It occurs when employment decisions are based on an employee’s sex or when an employee is treated differently because of his or her sex. For example, a female supervisor always asks the male employees, in a coed workplace, to move the boxes of computer paper. Or, a male supervisor always asks the female employees, in a coed workplace to plan office parties. SEXUAL HARASSMENT is a behavior. It is defined as unwelcome behavior of a sexual nature. For example, a man whistles at a woman when she walks by. Or a woman looks a man up and down when he walks towards her. SUBTLE SEXUAL HARASSMENT is a behavior but not a legal term. It is unwelcome behavior of a sexual nature that if allowed to continue could create a QUID PRO QUO and/or a Hostile Work Environment for the recipient. For example, unwelcome sexual comments, jokes, and innuendoes.

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QUID PRO QUO HARASSMENT is when employment and/or employment decisions for an employee are based on that employees’ acceptance or rejection of unwelcome sexual behavior. For example, a supervisor fires an employee because that employee will not go out with him or her. HOSTILE WORK ENVIRONMENT is a work environment created by unwelcome sexual behavior or behavior directed at an employee because of that employee's sex that is offensive, hostile and/or intimidating and that adversely affects that employee's ability to do his or her job. For example, pervasive unwelcome sexual comments or jokes that continue even though the recipient has indicated that those behaviors are unwelcome.

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LEGAL ASPECTS OF SEXUAL HARASSMENT AT WORKPLACE The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way of publication in the Gazette of India. As this issue of sexual harassment of women at workplace is now a globally recognized problem and the prohibition against it is almost universal in nature. India’s ratification of the convention on Elimination of All forms of Discrimination against Women at Workplace, (CEDAW) in 1993, which binds the state parties (countries who ratify the document) to prevent and prohibit Sexual Harassment of Women at Workplace. The Sexual Harassment Act has been enacted with the objective of providing women protection against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India ("Constitution") and her right to life and to live with dignity as per Article 21 of the Constitution. The statute has been enacted almost 16 years after the Supreme Court of India, in its landmark judgment in Vishaka and others v. State of Rajasthan ("Vishaka Judgement") , laid down guidelines making it obligatory for every employer to provide a mechanism to redress grievances relating to workplace sexual harassment and enforce the right to gender equality of working women ("Guidelines"). Codification of the requirements is a muchawaited development and is a significant step towards creating awareness on the issue of workplace sexual harassment and ensuring women a safe and healthy work environment. The Act has adopted the definition of 'sexual harassment' from Vishaka Judgment and the term sexual harassment includes any unwelcome acts or behavior (whether directly or by implication) such as physical and advances, demand or request for sexual favors, making sexually colored remarks, showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

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In, Apparel Export Promotion Council Vs. A.K. Chopra1, the Hon'ble Supreme Court while deciding an issue whether the act of a superior officer (wherein such superior officer tried to molest his junior woman employee) would amount to sexual harassment, the Court relied on the definition of the term 'sexual harassment' laid down by the Supreme Court in the Vishaka Judgment (which is similar to the definition of the Sexual Harassment provided in the Act) held that "the act of the respondent was unbecoming of good conduct and behavior expected from a superior officer and undoubtedly amounted to sexual harassment. Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace. This section further provides the circumstances which if present or connected with any act or behavior of sexual harassment may amount to sexual harassment such as implied or expressed promise to preferential treatment or implied or explicit threat of detrimental treatment in her employment, implied or explicit threat about her present or future employment, interference with work or creating an intimidating or offensive or hostile work environment, humiliating treatment likely to affect health or safety of a woman

1 1997 IIAD Delhi 12, 66 (1997) DLT 327 9

EXTENT OF SEXUAL HARASSMENT AT WORKPLACE-INDIAN CONTEXT Most of the researches tell that, in of who is most likely to be harassed in the Workplace are most likely women. Amongst all the twenty-two countries covered by the IPSOS – Reuters survey (2010), India recorded highest incidence of sexual harassment. Similarly Centre for Transforming India survey (2010) revealed that nearly 88 percent of women witnessed some form of workplace sexual harassment during the course of their work. Additionally, the survey found that there were poor awareness levels among female employees on workplace sexual harassment and therefore majority of them continued with their ordeal of suffering due to fear of professional victimization. Early 1990s had many countries enacting specific legislations on sexual harassment happening at workplaces. India saw enactment Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in April 2013. It is important to note even before the said law was enacted, the Supreme Court of India for the first time recognized the existence of sexual harassment at workplace, and the need for legal recourse for the same in its landmark decision i.e. Vishakha and Others vs. State of Rajasthan and Others (1997). The newly enacted Act in India on sexual harassment builds on the Supreme Court Vishakha guidelines. The Act recognizes that every woman has a right to work with dignity and sexual harassment as violation of fundamental rights of working women.

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SALIENT FEATURES OF THE SEXUAL HARASSMENT ACT, 2013  Scope: The ambit of the Sexual Harassment Act, 2013 is very wide and is applicable to the organized sector as well as the unorganized sector. In view of the wide definition of 'workplace', the statute, inter alia, applies to government bodies, private and public sector organizations, non-governmental organizations, organizations carrying on commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. As per the Sexual Harassment Act, a workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment – including transportation provided by the employer for the purpose of

commuting

to

and

from

the

place

of

employment.

The definition of 'employee' under the Sexual Harassment Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labor, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the of employment are express or implied.  Internal Complaints Committee and Local Complaints Committee: The Sexual Harassment Act requires an employer to set up an Internal Complaints Committee' (ICC) at each office or branch, of an organization employing at least 10 employees. The government is in turn required to set up a Local Complaints Committees (LCC) at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on of the establishment having less than 10 employees or if the complaint is against the employer. The Sexual Harassment Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.  Interim Reliefs: The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim 11

measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.  Process for Complaint and Inquiry: Please refer to the following flowchart which provides, in brief, the process to be followed by the aggrieved employee to make the complaint and by the employer to inquire into the complaint. The law allows female employees to request for conciliation in order to settle the matter although a monetary settlement should not be made as a basis of conciliation.  Action against Frivolous Complaints: So as to ensure that the protections contemplated under the Sexual Harassment Act do not get misused, provisions for action against "false or malicious" complainants have been made.

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CASE STUDY- VISHAKA VS. STATE OF RAJASTHAN2 The litigation resulted from a brutal gang rape of a publicly employed social worker in a village in Rajasthan during the course of her employment. The petitioners bringing the action were various social activists and non-governmental organizations. The primary basis of bringing such an action to the Supreme Court in India was to find suitable methods for the realization of the true concept of “gender equality” in the workplace for women. In turn, the prevention of sexual harassment of women would be addressed by applying the judicial process. Under Article 32 of the Indian Constitution, an action was filed in order to establish the enforcement of the fundamental rights relating to the women in the workplace. In particular it sought to establish the enforcement of Articles 14, 15, 19(1) (g) and 21 of the Constitution of India and Articles 11 and 24 of the Convention on the Elimination of All Forms of Discrimination against Women. Law Constitution of India • Article 14 (the right to equality) • Article 15 (the right to non-discrimination) • Article 19(1) (g) (the right to practice one’s profession) • Article 21 (the right to life) Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) • Article 11 ([State] takes all appropriate measures to eliminate discrimination against women in the field of employment) • Article 24 ([State shall] undertake to adopt all necessary measures at the national level aimed at achieving the full realization) Decision In disposing of the writ petition with directions, it was held that: “The fundamental right to carry on any occupation, trade or profession depends on the availability of a ‘safe’ working environment. The right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, belongs to the legislature and the 2 AIR 1997 SUPREME COURT 3011 13

executive. When, however, instances of sexual harassment resulting in violations of Arts 14, 19 and 21 are brought under Art 32, effective redress requires that some guidelines for the protection of these rights should be laid down to fill the legislative vacuum. In light of these deliberations, the Court outlined guidelines which were to be observed in order to enforce the rights of gender equality and to prevent discrimination for women in the workplace. These guidelines included the responsibility upon the employer to prevent or deter the commission of acts of sexual harassment and to apply the appropriate settlement and resolutions and a definition of sexual harassment which includes unwelcome sexually determined behavior (whether directly or by implication) such as: • physical and advances; • A demand or request for sexual favors; • Sexually-colored remarks; • showing pornography; • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Furthermore the guidelines set out that persons in charge of a workplace in the public or private sector would be responsible for taking the appropriate steps to prevent sexual harassment by taking the appropriate steps, including: • The prohibition of sexual harassment should be published in the appropriate ways and providing the appropriate penalties against the offender; • For private employees, the guidelines should be included in the relevant employment guidelines; • Apt working conditions in order to provide environments for women that are not hostile in order to establish reasonable grounds for discrimination; • The employer should ensure the protection of potential petitioners against victimization or discrimination during potential proceedings; • An appropriate complaints mechanism should be established in the workplace with the appropriate redress mechanism; • Where sexual harassment befalls as a result of an act or omission by any third party or outsider, the employer and person-in-charge will take all steps necessary and reasonable to assist the affected person in of and preventive action. 14

Finally, the court stated that the guidelines are to be treated as a declaration of law in accordance with Article 1413 of the Constitution until the enactment of appropriate legislation and that the guidelines do not prejudice any rights available under the Protection of Human Rights Act 1993. The Vishakha guidelines categorically state that: 4 It is the duty of the employer or other responsible persons in the workplace or institution to: 

Prevent sexual harassment



Provide mechanisms for the resolution of complaints

All women who draw a regular salary, receive an honorarium, or work in a voluntary capacity in the government, private sector or unorganized sector come under the purview of these guidelines. Complaints mechanism 

All workplaces should have an appropriate complaints mechanism with a complaints committee, special counsellor or other services.



A woman must head the complaints committee and no less than half its should be women.



The committee should include an NGO/individual familiar with the issue of sexual harassment.



The complaints procedure must be time-bound.



Confidentiality must be maintained.

3 Article 141: The law declared by the Supreme Court shall be binding on all courts within the territory of India. 4 A brief history of the battle against sexual harassment at the workplace; by Vibhuti patel (infochangeindia.org)

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

Complainants/witnesses should not experience victimization/discrimination during the process.

Preventive steps 

Sexual harassment should be affirmatively discussed at workers' meetings, employer-employee meetings, etc.



Guidelines should be prominently displayed to create awareness about the rights of female employees.



The employer should assist persons affected in cases of sexual harassment by outsiders.



Central and state governments must adopt measures, including legislation, to ensure that private employers also observe the guidelines.



Names and numbers of of the complaints committee must be prominently displayed.

Employers' responsibilities 

Recognize sexual harassment as a serious offence.



Recognize the responsibility of the company/ factory/workplace to prevent and deal with sexual harassment at the workplace.



Recognize the liability of the company, etc., for sexual harassment by the employees or management. Employers are not necessarily insulated from that liability because they were not aware of sexual harassment by staff.



Formulate an anti-sexual harassment policy. This should include:

* A clear statement of the employer's commitment to a workplace free of unlawful discrimination

and

harassment.

* Clear definition of sexual harassment (using examples), and prohibition of such 16

behavior

as

an

offence.

* Constitution of a complaints committee to investigate, mediate, counsel and resolve cases of sexual harassment. The Supreme Court guidelines envisage a proactive role for the complaints committee, and prevention of sexual harassment at work is a crucial role. It is thus imperative that the committee consist of persons who are sensitive and open to the issues

faced

by

women.

* A statement that anyone found guilty of harassment after investigation will be subject to disciplinary action. 

The range of penalties that the complaints committee can levy against the offender should include:

* Explicit protection of the confidentiality of the victim of harassment and of witnesses. * A guarantee that neither complainant nor witnesses will be subjected to retaliation. * Publishing the policy and making copies available at the workplace. Discussing the policy with all new recruits and existing employees. Third-party suppliers and clients should

also

be

aware

of

the

policy.

* Conducting periodic training for all employees, with active involvement of the complaints committee. Employers' duty Freedom from sexual harassment is a condition of work that an employee is entitled to expect. Women's rights at the workplace are human rights.

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CASE STUDY-MEDHA KOTWAL LELE VS UNION OF INDIA5 The case arises against a background of the long-running attempt to tackle the problem of sexual harassment of women at work in India, both through the courts and before the legislature. In 1997, in a landmark case before the Supreme Court of India stemming from the brutal gang rape of a publicly employed social worker at work (Vishaka and Others v. State of Rajasthan and Others (1997) 6 SCC 241), the Court stated that a woman’s Constitutional rights to life (with dignity), to equality and to practice any profession or carry out any occupation, demanded safeguards against sexual harassment in the workplace. In the absence of legislative safeguards, the Court, stated that an “affective alternative mechanism” was needed to prevent violations of these fundamental rights in the workplace. To that end, the Court established guidelines (“Vishaka Guidelines”) with regards to the prevention and redress of sexual harassment in the workplace. These set out a series of obligations on employers to prevent aor deter acts of sexual harassment and to remedy occasions where such acts take place. The Court stated that the Vishaka Guidelines were to be treated as a declaration of law and to apply until relevant protective legislation was enacted by the Parliament. Since then, the “Protection of Women against Sexual Harassment at Workplace Bill 2010”, which seeks to provide the requisite protection, has been ed by the Lok Sabha (the lower house of Parliament) in September 2012. It is currently pending in the Rajya Sabha (the upper house of Parliament) and so is not yet in force. The present case arose when Medha Kotwal Lele, coordinator of Aalochana, a center for documentation and research on women and other women’s rights groups, together with others, petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that the Vishaka Guidelines were not being effectively implemented. In particular, the petitioners argued that, despite the guidelines, women continued to be harassed in the workplace because the Vishaka Guidelines were being breached in both substance and spirit by state functionaries who harass women workers via legal and extra legal means, making them suffer and by insulting their dignity.

5 Application Number: 2012 STPL (Web) 616 SC Jurisdiction 18

The Court was specifically required to consider whether individual state governments had made the changes to procedure and policy required by the Vishaka Guidelines and a number of earlier orders of the Court. Law • Article 141 Constitution of India • The Vishaka Guidelines • Protection of Women against Sexual Harassment Bill 2010 (the Bill) – still pending. • Central Civil Service (conduct) Rules, 1964 (CCS Rules) • Industrial Employment (Standing Orders) Rules. Decision The Court stated that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It noted that the Vishaka Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. The Court held that a number of states were falling short in this regard. It referred back to its earlier findings on 17 January 2006, that the Vishaka Guidelines had not been properly implemented by various States and Departments in India and referred to the direction it provided on that occasion to help to achieve better coordination and implementation. The Court went on to note that some states appeared not to have implemented earlier Court decisions which had required them to make their legislation compliant with the Vishaka Guidelines. It noted that some states had only amended certain aspects of their legislations rather than carrying out all required amendments and others had taken even less action. Accordingly, it held that the Vishaka Guidelines should not remain just symbolic but rather shall provide direction until the legislative enactment of the Bill. Hence, holding that a number of states had not done everything required to comply with the Guidelines, the Court provided the following directions: • States governments must make the necessary amendments to their CCS Rules and Standing Orders within two months of the date of judgment. • States governments must ensure there is an adequate number of Complaint Committees within each state to hear complaints and that such Committees are headed up by a woman. • State functionaries must put in place sufficient mechanisms to ensure effective 19

Implementation of the Vishaka Guidelines. • The Bar Council of India shall ensure that all bar associations in the country and persons ed with the State Bar Councils follow the Vishaka Guidelines. Similarly, the Medical Council of India, Council of Architecture, Institute of Chartered ants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organizations, bodies, associations, institutions and persons ed/d with them follow the Vishaka Guidelines. Finally, the Court stated that, in the event of non-compliance to the Vishaka Guidelines, the Courts orders and/or directions above, aggrieved persons should approach the High Court of the state concerned.

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LOW AWARNESS AMONG EMPLOYEES-A CAUSE OF CONCERN Corporate workplaces have become increasingly informal over time and it is not uncommon for employees to socialize beyond work hours. Teams may gather for various recreational activities Global points of presence also lead to have employees traveling for meetings, events and conferences. In such scenarios, employers have to ensure that individuals maintain proper decorum around their co-workers. A stray remark here, a colorful comment there — and the aftermath could result in a volatile situation. The importance of training and awareness is crucial. The survey revealed that 21% of the respondent’s organizations did not have general awareness campaigns aimed at their employees. According to 44%, their organizations did not display the penal consequences of sexual harassments at prominent locations. Indian companies ranked low, standing at 50% as compared to MNCs which stood at 40%. Small and medium companies too fared low with 71% of the respondents indicating that their organizations did not display such warnings clearly. One of the issues in such circumstances is inadequate training for employees, especially new ers. With new recruitments, it is important to drive a company’s stance on such matters so that they can understand early its core values, 46% of companies do not have online modules for training new employees. The situation is worse in small and medium companies where 71% do not have such modules.6

6 Survey by Fraud Investigation and Disputes Services (Reining in Sexual Harassment at workplace in India ) 21

COST OF NON COMPILANCE There are dire consequences in store for companies that do not comply with the Act or contravene any of its provisions. In addition, non-compliance with its rules can put a company’s productivity as well. Among the respondents, 35% were unaware of the penal consequences for noncompliance. When constituting ICCs.7 The issue was more pronounced among MNCs with almost 38% stating their ignorance. This indicates that they do not comprehend the losses possible through their obliviousness. Apathy was rampant among small and medium-sized companies, with 38% of the respondents being unaware of the repercussions of their non-compliance. The Government is ramping up action against non-compliant companies and they need to understand the severe consequences they could be presented with. An employer will be liable to a fine of Rs 50,000 in case of violation of his duties under the Act and in case of subsequent violations the amount of fine will be double together with penalty in the form of cancelation of his license, withdrawal or non-withdrawal of the registration required for carrying out his activity.

7 Survey by Fraud Investigation and Disputes Services (Reining in Sexual Harassment at workplace in India ) 22

RECOMMENDATION AND SUGGESTIONS EMPLOYER'S OBLIGATIONS In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter alia, i. Provide a safe working environment ii. Display noticeably at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee iii. Organize workshops and awareness programs at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programs for of the Internal Complaints Committee iv. Treat sexual harassment as a misconduct under the service rules and initiate action for misconduct. The employer is also required to monitor the timely submission of reports by the ICC. If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses. 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. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. COMPLAINT MECHANISM Whether or not such conduct constitutes an offence under law or a breach of the service 23

rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. COMPLAINT COMITTEE The complaint mechanism, referred to above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue 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 Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. EMPLOYEE’S INITIATIVE Employees should be allowed to raise issues of sexual harassment at a workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer- Employee Meetings. CIVIL SUIT A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment. CRIMINAL ENACTMENT (Indian Penal Code) As a result of the growing importance of the issues relating to sexual harassment and protection of female employees in India, a new section 8 was added to the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013 9, which enlists the acts 8 Section 2(o), Sexual Harassment Act, 2013 9 Section 354A, Indian Penal Code, 1860 24

which constitute the offence of sexual harassment and further envisages penalty / punishment for such acts. A man committing an offence under this section is punishable with imprisonment, the term of which may range between 1 - 3 years or with fine or both. Since the amendment criminalizes all acts of sexual harassment, employers shall be required to report any offences of sexual harassment to the appropriate authorities.

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ANALYSIS/ CONCLUSION a. The Sexual Harassment Act only addresses the issue of protection of women employees and is not gender neutral. Male employees, if subjected to sexual harassment, cannot claim protection or relief under the law. b. The definition of 'aggrieved woman' does not make a reference to victimization (on the part of the employer) of the employee who has made the complaint of harassment, which would be fairly common in such situations. This was in fact an important recommendation of the Standing Committee. The definition of the 'sexual harassment', the words 'verbal, textual, physical, graphic or electronic actions' should have been added in order for the purposes of clarity, as it would cover some of the technological developments. c. It may become a challenge for employers to constitute an ICC at all istrative units or offices. It may also become necessary for the employer to spend more time and efforts in training of the ICC who are to be replaced every 3 years. There is also a lack of clarity as to who shall be a chairperson of the ICC in absence of a senior level female employee. Also, in such cases, the composition of the committee should ideally have been an odd number in order for the committee to arrive at a decision based on majority. d. The ICC also needs to involve a member from amongst non-governmental organizations or associations committed to the cause of women or who have had experience in social work or have legal knowledge. Employers may not be comfortable with such an external representation, considering the sensitivities surrounding this issue and the need to maintain strict confidentiality. e. The law casts an obligation upon the employer to address the grievances in respect of sexual harassment at workplace in a time bound manner, which in several cases may not be practically possible as the employees or witnesses involved may not easily or readily co-operate. f. The law allows the employer to initiate action against the complainant in case of a false or malicious complaint. This provision, although meant to protect the employer's interests, is likely to deter victims from reporting such incidents and filing complaints, which may in turn defeat the purpose for which the law was enacted. 26

g. In case the accusation has been proved, the Sexual Harassment Act allows the ICC to recommend to the employer to deduct from the respondent's salary such sums it may consider appropriate to be paid to the aggrieved woman. However, there may need to be made certain corresponding changes to the Payment of Wages Act, 1936 of India, which restricts the nature of deductions that may be made from an employee's salary. h. Considering that India has a diverse set of religions, cultures, castes, languages, etc. the government also needs to start focusing on providing protection for some of the other forms of harassment, which is fairly common in several of the developed countries (same sex harassment).

27 Figure 1 POSITION OF SEXUAL HARASSMENT IN INDIA (AS PER THE ACT)

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