13 things you must know to tackle sexual harassment at the workplace
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With every occurrence of gender-based violence in India, India's legislation is scrutinised yet again. While it is true that we are far from recognising sexual violence against men or marital rape as criminal offences, the legislative atmosphere is changing.
Post Nirbhaya's tragedy, the legal structure of the country has seen some significant changes with the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, ('the Sexual Harassment Act') which addresses sexual harassment of women in the context and course of employment and provides civil remedies. The Criminal Law (Amendment) Act of 2013, ('the Criminal Amendment Act'), on the other hand, treats the sexual harassment of a woman by a man as a punishable offence
The enactment of these legislative provisions is widely seen as a progressive move. On the other hand, the extensive legal mechanism provided by the Sexual Harassment law has led to perceptions of it being an anti-male law as almost every organization in the private sector that undergoes various processes to ensure compliance with this law struggles to address fears of misuse of the law by female employees for career advancements. In boardrooms, this law is seen to be a newer cousin of the dowry-death provisions of the Indian Penal Code, 1860.
The only effective manner to address such barriers of perception and belief is to be well-versed with the letter and the spirit of the law. It is also essential to remember that laws are rarely exclusively 'good' or 'bad'. Laws are tools that have the ability to deliver outcomes based on how well they are wielded. Therefore, the best way to ensure a positive outcome in the application of a law is to understand it in its entirety.
What's the basis of the Sexual Harassment law?
In 1997, the Supreme Court laid down definitive guidelines to protect women from sexual harassment in the course of employment in Vishakha v. State of Rajasthan. Till 2013, these guidelines were the only legal framework in the country to recognise the problem of sexual harassment and provide some recourse against it.
In a developing economy like India, it is necessary to ensure a safe working environment for a growing female workforce. The participation rate of women in India's workforce has actually reduced from 37% in 2005-2005 to 29% in 2009 -2010. Another study reveals that almost 79% of the surveyed victims who report some form of sexual harassment are women.
So what is the Sexual Harassment Act about?
The Sexual Harassment Act makes it the duty of every employer to treat sexual harassment of women that may occur in its workplace as misconduct and punish it.
Every employer that employs more than ten people must constitute an Internal Complaints Committee ('ICC'), provide training to members of the ICC to investigate into complaints of sexual harassment and also, abide by the orders of the ICC.
Failure to constitute an ICC can cost the employer up to Rupees Fifty Thousand for the first offence and subsequently, the loss of license to carry out business for a repeat offence.
This law protects all women from sexual harassment at all workplaces, irrespective of their ages and their employment status. In fact, even women visiting a workplace – such as customers in banks – are entitled to protection from sexual harassment under the provisions of this law.
It allows an aggrieved woman to file a criminal complaint (if the action amounts to the crime of sexual harassment) while simultaneously seeking redress before the civil mechanism of the workplace. Therefore, sexual harassment can be complained against before a workplace's ICC, and is also a crime that is punishable with upto three years of imprisonment as well as a fine.
The protection against sexual harassment also extends to domestic servants in the unorganised sector. It is the duty of the government to constitute a Local Complaints Committee ('LCC') at the district level to hear complaints against incidents of sexual harassment that may occur in the course of such employment of domestic servants.
If an incident of sexual harassment occurs at a workplace that does not have an ICC or has failed to constitute an ICC, then a complaint against such sexual harassment can be lodged before the relevant LCC. Similarly, if the complaint is against the employer itself, then the complaint against such sexual harassment can be filed before the appropriate LCC.
Penalties for sexual harassment under the Sexual Harassment Act can vary from reprimanding the perpetrator to termination of service, depending on the gravity of the incident.
On the other hand, the punishment of sexual harassment under the Criminal Amendment Act ranges from one to three years of imprisonment.
Importantly, making a false complaint of sexual harassment (knowing that the complaint is false at the time of making it) or giving false evidence in a complaint against sexual harassment, is punishable with the same penalties that are prescribed for sexual harassment itself.
Every ICC and LCC needs to be well trained to investigate complaints of sexual harassment. The law does not provide these committees the power to dismiss complaints without investigating them. In the event that upon investigation, a committee finds that while the complaint was made in good faith, the incident reported does not amount to sexual harassment, it can close the investigation and recommend that no action be taken against the person complained against.
An order of an ICC or an LCC can be appealed against before the appropriate authority as designated under the Industrial Employment (Standing Orders) Act, 1949.
This law applies to all educational institutions (and provides protection to students and staff therein), hospitals, government departments and authorities, and even sports stadia.
Concerns
No law can operate by itself and therefore, to be successfully implemented, this legislation too, requires a robust legal structure. One of the greatest challenges facing victims of sexual harassment is retaliation and victim-shaming that follows such incidents. While the law itself is silent on detailed anti-retaliatory mechanisms, employers need to ensure a safe reporting process and a series of checks and balances to ensure that people who speak out against sexual harassment do not suffer from unwarranted backlash. Inquiries into complaints against sexual harassment must ensure complete confidentiality of identity of the victims. Further, investigating committees need to take the lead on providing a productive environment, conducive to employment, even when complaints are being investigated.
Every business values its reputation and being known as a responsible corporate entity is a value addition in today's global market place. A clean and safe working environment is no longer a privilege to be enjoyed at the discretion of the employer, but a legal right to be exercised by every member of society.
Useful Resources:
1. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 at http://wcd.nic.in/wcdact/womenactsex.pdf
2. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, at http://www.lawyerscollective.org/wp-content/uploads/2013/12/Sexual-Harassment-at-Workplace-Rules.pdf
3. The Criminal Law (Amendment) Act, 2013, at http://indiacode.nic.in/acts-in-pdf/132013.pdf
*Sources-
International Labour Organization, Global Employment Trends 2013: Recovering From a Second Jobs Dip (2013), the full report is available at ILO and AWARE
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