Legal HR: Prevention of Sexual Harassment at Workplace
A. What does the Law on Sexual Harassment at Workplace say:
The Sexual harassment of women at the workplace was not considered as specific offence till the time the Apex Court of India, gave its landmark judgment in Vishaka vs. State of Rajasthan laying down specific guidelines and giving directions to the employers to have sexual harassment policy in the workplace and to consider sexual harassment as a serious offence. Prior to 1997, sexual harassment was dealt with under Section 509 and 354 of the Indian Penal Code, however these sections did not specifically define the act, words or gestures which amounts to the offence of sexual harassment and it was left to the whims and fancies of the Person deciding the Case according to their value judgement.
Though the Hon’ble Supreme Court gave directions to curb the offense of sexual harassment of women at workplace, the legislation came up with the enactment after 16 years of the above-mentioned judgment. There is a difference between sexual harassment and rape. As per Section 2(n) of the SH Act, 2013, Sexual harassment includes any one or more of the acts or behaviour: Physical contact and advances, a demand or request for sexual favours, making sexually coloured remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of sexual nature. The 2013 Act covers a wide range of the acts, behavior or gestures which can make a woman uncomfortable and creates a hostile work environment for a woman and undermine the potential of a person to work and perform well at the workplace. Sexual harassment, when encountered at work, at events relating to work, amongst people sharing the same workplace or between colleagues outside of work, violates the principles of Article 19 (1) g of the Indian Constitution.
Current State at workplace
The problem with sexual harassment at the workplace is that many victims ignore it or play it down, hoping it was a one-off incident, and will not recur. So far it was very common for many victims to neither confront the perpetrator nor inform it to any other person in the organization. However, with SH Act, that is set to be addressed and the workforce is becoming aware of their rights of complaining in case of any sexual harassment events. But before we get into the legal aspects of this Act, let us examine a worldwide phenomenon that we witnessed recently, which was driven more by social media than by any law.
Recently an actress named Alyssa Milano shared a tweet asking victims of sexual harassment at the workplace instead of staying silent and urged them to use the hashtag #metoo. This gave birth to the #me too phenomenon, where millions of women across the world admitted their earlier occasions of having faced sexual harassment at their workplaces, and in many cases, called out the harasser’s name publicly. This movement got muscle because several women celebrities participated, and on the other side, several male celebrities got called out for having used their position and power to harass their colleagues or team members sexually. This campaign of saying ‘Me Too’ was a shot in the arm for all those who prey upon the fear of victims who stay silent. The #metoo campaign urged women not to stay silent but instead name and shame their aggressors. This was an eye-opener for many of us because well-known public figures came out with old incidents when they had been sexually harassed but not been brave enough to counter it at that time. Coming to India, what are the legal aspects of sexual harassment at the workplace? Let us look at some of the provisions of the Act.
B. Internal Complaints Committee
It is now incumbent on the employer under Section 4 of the Sexual Harassment of women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 to set up an Internal committee. The Act lays down that a Committee shall consist of the following members who will be nominated by the employer:
- A presiding officer shall be a woman employed at senior level.
- Not less than 2 members from amongst employees preferably committed to the cause of the women or who have experience in social work or have legal knowledge.
- One from an NGO
- The committee would have women as half its members (at least), and a woman heading the committee
- No member can be part of this committee for more than 3 years. These checks and balances are being implemented keeping in mind that there is no abuse of power and that the women can come up front with their complaints.
C. Enquiry Proceedings
The enquiry proceedings and the timeline attached herewith are one of the most important parameters which is to be kept in mind by the Internal Committee, in order to adhere to the Act and the responsibility earmarked upon them.
I. Timelines and procedure of action
Without going too much in detail on each and every step we have tried to sum up the timelines and procedure of action of the whole enquiry proceedings process in the below diagram in order to give a better clarity.
II. Interim Order.
During the pendency of inquiry, the Committee under Section 12 of Sexual Harassment of women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 can recommend either of the interim measures during the pendency of the case:
- Transfer the aggrieved woman or the Respondent to any other workplace.
- Grant leave to the aggrieved women up to a period of three months.
- Grant such other measure to comfort the victim and to ensure that she is not further victimized.
- Give paid leave or change the reporting of the Complainant (if the respondent is her reporting manager only).
III. Punishment prescribed under the Act for wrong-doing:
Where the committee arrives at the conclusion that the allegation against the respondent has been proved, it recommends to the employer to take necessary action for sexual harassment as misconduct, in accordance with the applicable service rules and policies, and this may include:
- Censure or reprimand
- Apology to be tendered by respondent
- Written warning
- Withholding promotion and/or increments
- Counselling for Accused
- Community Service by Accused
- Payment to Victim out of the salary of the Guilty person
If the Committee comes to the conclusion that the Complaint was malicious and false evidence was tendered, then the Internal Committee or the Local Committee may recommend the employer or the District officer to take action against the woman or the person who has made the complaint. However mere inability to substantiate a complaint or provide evidence does not make the complaint malicious.
So the severity of the punishment is linked to the severity of the offense. Points which are also to be considered are the number of instances where a complaint has been received against the accused, the impact upon the working of the victim, abuse of power and repetitiveness of the offense.
V. Factors to be taken into consideration while deciding a case of sexual harassment.
The Internal Committee while examining the case of sexual harassment should take following things into consideration
- Whether the complaint is corroborated by the testimony of witnesses and documentary evidence?
- Whether there is any witness to testify the complaint filed?
- Whether there is independent witness available to prove the case?
- Whether the witnesses are being able to stand through cross-examination?
- Whether the complainant is being able to discharge the burden of proof?
- Whether the alleged respondent is able to explain the circumstances?
- Whether the respondent is being able to rebut the shreds of evidence produced?
- Whether Evidence produced by the complaint are unequivocally pointing towards the guilt of the accused?
- What type of witnesses testimony is taken and whether the same is to be taken as primary evidence or secondary evidence
It might sound that analysing a complaint from so many different angles is cumbersome but if these actions are not taken care of then there is a high chance of the finding report to be appealed for and there are various precedents where High Courts has struck down the findings of Internal Committee as the evidence was not appreciated properly or the language of the judgement was vague and not pointing towards the guilt of the respondent.
The enactment of the 2013 Act is a significant step forward to protect women from sexual harassment as well as to provide redressal forum to the victims. Though the Act has its own loopholes, it has brought about a paradigm shift in the work culture of workplaces. The act has helped create a healthy and safe environment, for women to work and be successful. It is helping weed out the patriarchal mindset, that women are inferior to men, and is helping in creating a very competent workforce.
The employers, by adhering to the Sexual Harassment Act and by enacting a policy for their organization and company, can bring a tremendous change in the workplace by curbing the offense of sexual harassment. Training the employees and spreading legal awareness among employees can do away with numerous cases which often are ignored by the employers or where women prefer leaving their job because of the social taboos or pressure. If everyone involved does their bit, then the menace of sexual harassment can be rooted out completely from all our workplaces and any abuse of rights enshrined under the Act leading to proving of a complaint which is false will trigger all the repercussion which the respondent may face.