Legal

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This Blog is written by Anwesha Kundu from Amity University, Kolkata. Edited by Pranoy Singhla.

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INTRODUCTION

Sexual Harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated,where a reasonable person would anticipate that reaction in the circumstances.

The Sex Discrimination Act 1984 defines the nature and circumstances in which sexual harassment is unlawful. It is also unlawful for a person to be victimized for making or proposing to make a complaint of sexual harassment to the Human Rights and Equal Oppurtunity Commission.

What Constitutes Sexual Harassment?

When it comes to determining if you have a pursuable sexual harassment claim against an employer, there are three key components a judge will look for in your claim:

1. Was the sexual harassment unwelcome? Sexual harassment is only illegal if the behavior is unwanted. Because of this, it’s always important to first communicate to the harassment that you need his or her behavior to stop. This can be done verbally, in writing, or by your actions.

2. Is the conduct of a sexual nature? Many behaviors, whether they’re verbal or physical, can be considered sexual. Examples include colleagues commenting on your clothing or hugging/patting you inappropriately.

3. Is the conduct severe or pervasive? Sexual harassment does not need to be both, but a valid claim will have one. For example, one colleague’s request for a date does not count as “severe” or pervasive.” If the same colleague repeatedly asks you out over the course of six months while ignoring your declination, you may be eligible for a claim.

4. Does the harassment affect your working conditions? Examples of sexual harassment negatively affecting your ability to work include getting fired, receiving poor performance evaluations, receiving a demotion or an assignment to a less desirable team, or creating a hostile work environment.

How Sexual  Harassment Affects Employees

When an employee is being subjected to sexual harassment, the workplace becomes a hostile environment with the constant threat of physical and/or emotional harm. This can lead to severe distress for victims with individuals at risk of developing mental health problems such as depression, anxiety, PTSD or panic attacks as well as the physical symptoms that accompany these disorders, low productivity, motivation and moral levels or high rates of sick leaves may also be signs that an employee is suffering from some form of harassment. As well as causing direct and immediate suffering for individuals, sexual harassment can interfere with work performance career progression and even result in people being forced out of their job and income completely.

EFFECTS OF SEXUAL HARASSMENT

Sexual harassment can affect everyone because it creates an environment that makes it harder for employees to succeed. The possible effects of sexual harassment in the workplace include

EMOTIONAL AND PHYSICAL ISSUES

Victims of sexual harassment often suffer emotional and psychological harm, including stress, depression, and anxiety. They often experience decreased confidence and self-esteem. Physical health problems may arise such as loss of sleep and appetite, weight fluctuations, nausea, and headaches.

PROFESSIONAL AND FINANCIAL PROBLEMS

Sexual harassment can also wreak havoc on a victim’s job performance and career trajectory. Fear and decreased confidence can cause some people to withdraw from the workplace and disengage from co-workers. They are more likely to be tardy, absent, distracted, and neglect duties. If victims of sexual harassment report the harassment, they may suffer advancement setbacks such as being passed over for promotions, being left out of keys meetings, retaliation, and being labeled a troublemaker. Financial problems like lost wages and unpaid leave are also possible.

DECREASED COMPANY PRODUCTIVITY

Sexual harassment is also damaging to an organization. When a workplace is infected with discrimination and harassment, everyone suffers. The hostility created by harassment causes absenteeism, low morale, gossip, animosity, stress, and anxiety among staff. Low productivity is more common in environments with high rates of sexual harassment. Victims and witnesses of sexual harassments are more likely to quit, leading to high employee turnover and related hiring and training cost increases. A toxic environment will also make recruiting top talent more difficult.

International Laws and Policies for Addressing Sexual Harassment in The Workplace

3.1. United Nations General Assembly Resolution 48/104123 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women (Art. 4(d-f)).

3.2. The Convention on the Elimination of all Forms of Discrimination against Women124(CEDAW) directs States Parties to take appropriate measures to eliminate discrimination against women in all fields, specifically including equality under law, in governance and politics, the workplace, education, healthcare, and in other areas of public and social life. (Arts. 7-16).

3.3. Moreover, the Beijing Platform for Action, para. 178125, recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple actors including government, employers, unions, and civil society to ensure that governments enact and

enforce laws on sexual harassment and that employers develop antiharassment policies and prevention strategies.

3.4. The ILO Committee of Experts on the Application of Conventions and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. The ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.

3.5. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognizes her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment.

Constitutional Safeguards Against Sexual Harassment at Workplace

The Constitution of India ensures and guarantees every individual the right “to practice any profession, or to carry on any occupation, trade or business” as enshrined under Article 19(1) (g). Every woman has a constitutional right to participate in public employment and this right is denied in the process of sexual harassment, which compels her to keep away from such employment. Sexual harassment of woman at the place of work exposes her to a big risk and hazard which places her at an inequitable position vis-à-vis other employees and this adversely affects her ability to realize her constitutionally guaranteed right under Article 19(1) (g). Sexual harassment of women at workplace is also a violation of the right to life and personal liberty as mentioned in Article 21 that no person shall be deprived of his life or personal liberty. Right to livelihood is an integral facet of the right to life.127 Sexual harassment is the violation of the right to livelihood. For the meaningful enjoyment of life under Article 21 of the Constitution of India, every woman is entitled to the elimination of obstacles and of discrimination based on gender. Since the ‘Right to Work’ depends on the availability of a safe working environment and the right to life with dignity, the hazards posed by sexual harassment need to be removed for these rights to have a meaning. The preamble of the Constitution of India contemplates that it will secure to all its citizens – “Equality of status and opportunity.” Sexual harassment vitiates this basic motive of the framers of the constitution. The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India. In view of the fact that sexual harassment of women at the workplace violates their sense of dignity and the right to earn a living with dignity, it is absolutely against their fundamental rights and their basic human rights.

DEVELOPMENT OF LAW ON SEXUAL HARASSMENT IN INDIA

The Vishaka Judgement Workplace sexual harassment in India, was for the very first time recognized by the Supreme Court of India in its landmark judgment of Vishaka & Ors vs State Of Rajasthan & Ors 129 . Vishaka and other women groups filed Public Interest Litigation against State of Rajasthan and Union of India to enforce the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping a child marriage. The Supreme Court of India created legally binding guidelines basing it on the right to equality and dignity accorded under the Indian Constitution as well as by the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The guidelines were:

1. “It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

3. All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways. (b) 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. (c) As regards private employer’s steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) 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 workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. 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.

5. 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.

6. Whether or not such conduct constitutes an offence under law or a breach of the service 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.

7. The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members 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.

8. Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.

9. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

10. Where sexual harassment occurs 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 terms of support and preventive action

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.”

POST VISHAKA DEVELOPMENTS

Pursuant to Vishaka judgement, the Central Civil Services (Conduct) Rules 1964130, were amended in 1998 to incorporate r. 3C which prohibits sexual harassment of working woman.

The first case before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council v. A.K Chopra. In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace. In this judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment. Further the apex court in its judgement in Medha Kotwal Lele & Ors. V. Union of India & Ors took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines. Not being satisfied, it directed States to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines. Finally, the Supreme Court asserted that in case of a non-compliance or non-adherence of the Guidelines, it would be open to the aggrieved persons to approach the respective High Courts. The apex court also directed that the complaints committee as envisaged in the Vishaka judgement will be deemed to be an inquiry authority for the purposes of Central Civil Rules, 1964 and the report of the complaints committee will be deemed to be an inquiry report under those rules. In pursuance of this direction, the Central Government (Department of Personnel and Training) has amended Central Civil Services (Clasification, Control and Appeal) Rules, 1965, R. 14, sub-r. (2) to incorporate the necessary provision.

COMMITTEES FOR COMPLAINTS

An important feature of the POSH Act is that it envisages the setting up of a grievance redressal forum. The POSH Act requires an employer to set up an ‘internal complaints committee’ (ICC) at each office or branch, of an organization employing 10 or more employees, to hear and redress grievances pertaining to sexual harassment. The ICC will be a 4-member committee under the Chairpersonship of a senior woman employee and will include 2 members from amongst the employees preferably committed to the cause of women or has experience in social work/legal knowledge and includes a third party member (NGO etc.) as well. At the district level, the Government is required to set up a ‘local complaints committee’ (LCC) to investigate and redress complaints of sexual harassment from the unorganized sector or from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer. The LCC has special relevance in cases of sexual harassment of domestic workers or where the complaint is against the employer himself or a third party who is not an employee. A District Officer notified under the Act will constitute LCC. LCC will be a five member committee comprising of a chairperson to be nominated from amongst eminent women in the field of social work or committed to the cause of women, one member from amongst women working in block/taluka/tehsil/municipality in the district, two members of whom at least one shall be a woman to be nominated from NGOs committed to the cause of women or a person familiar with the issues related to sexual harassment provided that at least one of the nominees should preferably have a background in law or legal knowledge. The concerned officer dealing with the social welfare or women and child development shall be an ex officio member.

THE PROCESS FOR FILING OF COMPLAINTS

A complaint of sexual harassment can be filed within a time limit of 3 months. This may be extended to another 3 months if the woman can prove that grave circumstances prevented her from doing the same. The Act has a provision for conciliation. The ICC/LCC can take steps to settle the matter between the aggrieved woman and the respondent, however this option will be used only at the request of the woman. The Act also provides that monetary settlement shall not be made a basis of conciliation. Further, if any of the conditions of the settlement is not complied with by the respondent, the complainant can go back to the Committee who will proceed to make an inquiry. The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days. In case the complaint has been found proved, then the Committee can recommend action in accordance with the provision of service rules applicable to the respondent or as per the rules which will be prescribed, where such service rules do not exist. In case the allegation against the respondent has not been proved then the Committee can write to the employer/district officer that no action needs to be taken in the matter.

PUNISHMENTS

The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

1. Punishment prescribed under the service rules of the organization;

2. If the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service; and

3. Deduction of compensation payable to the aggrieved woman from the wages of the respondent. The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on: i. the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee; ii. the loss in career opportunity due to the incident of sexual harassment; iii. medical expenses incurred by the victim for physical/ psychiatric treatment; iv. the income and status of the alleged perpetrator; and v. feasibility of such payment in lump sum or in instalments. In the event that the respondent fails to pay the aforesaid sum, ICC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

CONCLUSION

India is rapidly advancing in its developmental goals and more and more women are joining the work force. The recognition of the right to protection against sexual harassment is an intrinsic component of the protection of the women’s human rights. It is all a step towards providing women independence, equality of opportunity and the right at work with dignity. Sexual harassment at the workplace is a social challenge that needs to be addressed. It is important to enhance the awareness of employers and employees on the existence of forms of sexual harassment at the workplace, preventive measures, and legal framework on preventing and addressing sexual harassment. Dissemination and awareness raising activities should be regularly conducted and evaluated in order to improve best practice on how to address sexual harassment in the workplace, and also to forewarn and inform of forms of sexual harassment to enable potential victims to avoid them. Enhancing training courses on sexual harassment and providing documentation or a handbook on the prevention of sexual harassment at the workplace can help in combating it. “While a murder destroys the physical frame of the victim, sexual harassment degrades and defiles the soul of a helpless woman.”