Preventing & Responding to Sexual Harassment At Workplace

Last updated 15 Nov 2019 . 1 min read



Sexual Harassment At Workplace Against Women Sexual Harassment At Workplace Against Women

If your senior or co-worker is asking for any sexual favor through their acts, words or gestures, whether in lieu of any professional perks and benefits or not, you can make a complaint before the internal complaint committee established in your organization under the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('the Act'). Such incidents are very common at a workplace and many women are victimized by seniors or co-workers with a promise of professional perks and benefits, resulting in an unsafe environment for women at the workplace. 

You are entitled to a safe working environment. Article 14 and 15 of the Indian Constitution lays down that no one shall be discriminated on the basis of religion, race, caste, sex or place of birth. Article 21 of the Indian Constitution states that everyone is entitled to life and personal liberty. Each incident of sexual harassment is a violation of your fundamental rights enshrined under Article 14, 15 and 21 and results in gender inequality. Act of sexual harassment at the workplace also violates fundamental rights enshrined under Article 19(1)(g) of the Indian Constitution which states that all the citizens have the right to practice any profession or to carry on any occupation, trade or business. Such acts constitute a gross violation of women's right to equality and dignity.

Section 509 of the Indian Penal Code, 1860 has made insulting modesty of a woman by words, gestures or acts a crime punishable with imprisonment of up to one year or fine or both.

The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ('the Act') was enacted to ‘provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment’ as stated in the preamble of the Act itself. The Act laid down the definition of sexual harassment at the workplace and a comprehensive procedure to redress the issues relating to the same. 

WHAT IS SEXUAL HARASSMENT AT WORKPLACE?

Section 2(n) of the Act states that “sexual harassment” includes “any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

  • physical contact and advances; or
  • a demand or request for sexual favors; or
  • making sexually colored remarks; or
  • showing pornography; or
  • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.”

It so happens that a situation might start off innocently but may end up in unprofessional behavior. Even a single instance of unwelcomed sexual advance constitutes sexual harassment at the workplace. However, the experience of a woman is subjective and each case should be examined on the basis of the context and circumstances surrounding the event.

As per the Act, workplace includes:

#1. “any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

#2. any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, entertainment, industrial, health services or financial activities including production, supply, sale, distribution or service;

#3. hospitals or nursing homes;

#4. any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

#5. any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such a journey;

#6. a dwelling place or a house.”

An act of sexual harassment at the workplace is not limited to the workplace. In cases where an employee is required to visit the residence or any other place outside the office, the definition of workplace extends to the residence of the employer or any other place the employee is required to visit. An act may amount to sexual harassment if there is an act of sexual nature associated with an implied or explicit promise of preferential treatment in employment or an implied or explicit threat to her employment or interference with her work resulting in a hostile work environment.

There are many ways in which harassment can take place. Most commonly, there are two kinds of harassment that usually take place: Quid Pro Quo harassment and hostile work harassment.

Quid Pro Quo harassment:

Quid Pro Quo is a Latin phrase that means "Something given in return of something". It usually happens that the employer either directly or indirectly asks for a sexual favor in return for some professional benefit. Professional benefits can be anything including promotion, a project, etc. This is a classic example of quid pro quo harassment. Usually, males in authoritative positions engage in this kind of harassment as they are in a position to grant a job favor in consideration of sexual favor.

Hostile Work Environment Harassment:

If a male employee has made such a work environment for you that it is intolerable for you to continue working there unless you give in to his demands of granting sexual favors. This harassment can be because of gender-based or sexual comments, continuous interference with your work or comments made with the intention of harassing the female employees.

WHO CAN FILE A COMPLAINT UNDER THE ACT?

A woman, whether employed or not, in an organized or unorganized sector is entitled to avail benefits under the Act. The Act also applies to a woman who is employed in a house such as house servants, etc. 

In the case of domestic workers, the complaint is filed before the Local Committee who will forward the Complaint to the Police Authorities within seven days of the Complaint.

A female client can also file a complaint against male employees of a company. For example, X is a client of Y Company where Z is employed. X can file a complaint about sexual harassment at the workplace against the Z.

The Act also applies in case an employee is sexually harassed by a third party who is not an employee of the organization. In such cases, the employer is duty-bound to provide the necessary assistance to its employee in filing a police complaint before the Police Authorities. 

REDRESSAL OF A COMPLAINT

Each employer is duty-bound to create a safe working environment. Under the Act, each employer is bound to constitute an Internal Complaint Committee at all the offices or administrative units of the workplace, if the organization has not less than 10 employees. The Act lays down the composition of the same. 

Any woman who is a victim of sexual harassment may make a complaint before the Internal Complaint Committee/ Local Committee within three months of such an incident. The period of making the complaint can be extended for another three months if it is found that the woman was prevented from making a complaint. In case, a woman is unable to make a complaint owing to her physical or mental incapacity or death, her legal heir or any other person authorized by her can make a complaint on her behalf. 

In case the organization does not have an Internal Complaint Committee, a complaint of sexual harassment at the workplace against women can be made before a Local Committee which is constituted under the Act. In case the complaint is made against the employer, the complaint is made before the Local Committee and not Internal Complaint Committee.

Conciliation

Upon receipt of the complaint, at the request of the aggrieved woman, the Internal Complaint Committee/ Local Committee will take the necessary steps to reach a settlement between the woman and the respondent. 

Inquiry

In case the conciliation fails, the Internal Complaint Committee/ Local Committee will hold an inquiry into the complaint as per the service rules of the company. During the inquiry, both the parties are given an opportunity of being heard and are provided with a copy of findings to enable them to make appropriate representation to defend their case. 

During the pendency of the inquiry, the employer may take the following action to ensure the safety of the aggrieved woman:

  1. transfer her to any other workplace
  2. grant leave to her for a period up to three months
  3. grant any other relief that the employer may deem fit

Inquiry report

Upon completion of the inquiry, an inquiry report is prepared by the Internal Complaint Committee/ Local Committee which is made available to the complainant and the respondent in ten days of the completion of the inquiry. If the Committee finds the respondent not guilty, no action is taken in the matter. If the Committee finds that the complaint was false and filed with malicious intent, the employer can take the necessary action as per the service rules of the organization.

In case the respondent is found guilty of the allegations made against him, the following actions can be taken against them:

  1. take necessary actions in accordance with the service rules of the company
  2. deduct salary or wages of the respondent and pay the appropriate sum to the aggrieved woman as compensation

WHAT SHOULD YOU DO IN CASE OF SEXUAL HARASSMENT AT WORKPLACE

In cases of sexual harassment, you should do the following:

  1. Do not wait for the second incident. Report the incident to the INTERNAL COMPLAINT COMMITTEE immediately. You should give the complaint in writing as required by the Act to initiate proceedings under the Act.
  2. If the internal complaint committee refuses to take the complaint or act on it, file a Police Complaint in the nearest Police Station.
  3. Once the conciliation starts, you can reach an amicable solution with the opposite party. If the conciliation fails, the internal complaint committee will decide the matter in accordance with the service rules. 

DUTIES OF EMPLOYER UNDER THE ACT:

The Act has imposed following duties of an employer, non-compliance of the same can have serious implications. Make sure that your employer - 

  1. It provides a safe working environment at the workplace which should include safety from the persons coming into contact at the workplace such as clients, business associates, etc.
  2. Display the penal consequences of sexual harassment and information regarding the Internal Complaint Committee.
  3. Organize workshops and awareness programs at regular intervals for sensitizing the employees about sexual harassment at the workplace and process of redressal in case of such events.
  4. Provide necessary assistance to the Internal Complaint Committee/ Local Committee for dealing with the complaint and conducting an inquiry.
  5. Assist in securing the attendance of respondents and witnesses before the Internal Complaint Committee/ Local Committee.
  6. Provide assistance to the aggrieved woman if she wants to file a police complaint before the Police under the provisions of the Indian Penal Code, 1860.
  7. Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

IMPACT OF SEXUAL HARASSMENT ON VICTIMS

Sexual harassment can have many impacts on women who have suffered it. A report of the International Center for Research on Women suggests that women who have faced sexual harassment at the workplace suffer from physical health issues, anxiety and distraction. This sometimes impacts them on a level where they lose focus and satisfaction from their professional life and often leave their jobs. Following are the impacts of sexual harassment:

Professional

Victims of sexual harassment find it difficult to dedicate themselves to the job as they are in constant fear. They often quit their jobs due to the hostile work environment they are made to face. It hampers their ability to grow and perform. Also, in India, it is difficult for a victim of sexual harassment to come out and make a complaint against their seniors or employers due to the stigma attached to the victims of sexual abuse. Often, the victims of sexual abuse who come out and report the incident are forced to resign from the workplace instead of carrying out an investigation on the reported incident. This is also because of the imbalance of power as the Indian industries are as of now male-dominated.

Mental and Psychological

The victims of sexual harassment at the workplace often suffer from issues such as anxiety, low confidence, etc. It also affects her family life. Many times, the attitude of the co-workers and family towards the victim changes which adds to her misery.


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Prachi Darji
Prachi Darji is an in-house legal counsel at MyAdvo Techserve Private Limited. She has graduated from Gujarat National Law University and is a proficient in Corporate Laws, Labour Laws and Laws of Contracts.

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Responses

  • Achira Datta
    How to deal with mental harassment in office? Especially if you are being harassed by a powerful guy in office..
  • Pramila Sharma
    Myself Pramila Sharma Sr Advocate Family welfare Expert at family Court Agra working with Gender Equality.... Thoughtful information
  • Meghana Srinivas
    This is a great overview and very informative. Addressing the whitespaces in complaint reporting and case management is the big goal of TrustIn. You can read more about our work at trustin.co.in.
  • Supriya
    It is mandatory for companies to be POSH compliant... Is your company compliant??
  • Jassi Kaur
    Very nice info. Thanks Sheroes for sharing this.
  • Govi Vinni
    Good information mam...