‘Sexual Harassment’ as a concept was only identified in the 70’s and the term was coined in a session in Cornell University. Even though in practice it was universal, yet it was ignored, denied, trivialised and sometimes even indirectly encouraged, and of course, women were blamed for it. The definition of what constitutes sexual harassment has changed with time and the author who wrote it. From addressing only ‘sexual’ incidents traditionally, today it encompasses a much wider meaning. In the first part of this series, we have established that the Indian corporate sector is in dire of effective Sexual Harassment at Workplace policies; let us now understand the issue in a nuanced manner.
In the Supreme Court directive of 1997, Sexual Harassment has been defined clearly and extensively. The guidelines say that sexual harassment includes such unwelcome sexually determined behaviours such as:
- Physical contact
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for example, leering, telling dirty jokes, making sexual remarks about a person's body, etc.
Additionally, the guidelines also spell out the duties and responsibilities of the employers, which can best be categorised in two sets:
Prevent sexual harassment: This set of guidelines, highlights the steps that must be taken to prevent a situation which allows sexual harassment. From affirmatively discussing it in meetings, increasing awareness about the rights of the employees, assisting people affected by cases of sexual harassment by outsiders, and providing the details of the Internal Complains Committee (ICC) prominently to all employees are some of the constituents.
Provide mechanisms for the resolution of complaints: These guidelines direct employers to create mechanism and platforms to resolve complains of sexual harassment, and the most important of these is the formation of an ICC, special counsellor and other support services. The features of the said ICC are as follows:
- A woman must head the complaints committee and no less than half its members 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.
- Complainants/witnesses should not experience victimisation/discrimination during the process.
In addition to the above, Employers’ Responsibilities are clearly spelt out as under:
- Recognise sexual harassment as a serious offence.
- Recognise the responsibility of the company/ factory/workplace to prevent and deal with sexual harassment at the workplace.
- Recognise 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.
Under the Act, the ICCs have 90 days to conduct their internal inquiry and reach a decision and provide recommendations to the company chief or boards. If the complainant happens to be unsatisfied with the way the probe was conducted/concluded, they can appeal to the state-level industrial tribunal. In 2013, J.S. Verma committee had recommended that external, independent employment tribunals be set up to hear complaints, based on the US model.
The Act does not clarify the responsibility of employers to inform the police of a complaint. The law changed in 2013 with the passing of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, which was passed after a committee headed by former Supreme Court Justice Verma recommended reforms in the laws protecting women from sexual violence and harassment. This step is believed to have progressed the redressal process in cases of sexual harassment ay workplace.
In November 2015, a FICCI –EY report stated that nearly 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act 2013. Though distinctive and concrete studies are not present to draw conclusions on an industry level, the defensive strategies of organisations, that often involve absolute denial or character-shaming of the complainant, clearly indicate to the fact that even MNCs have minimal knowledge and sensitivity of the subject. Additionally, what compounds the problem further is that the law cannot help one distinguish explicitly between sexual behaviour and social-sexual behaviour. Often in the settings of a workplace, due to factors like proximity, autonomy, job positions, a ‘gray area’ is created. Flirting, non-verbal gestures like looks, glances, touch, use of sexual language, and use of pet names or making jokes might not be done with the intent of sexual harassment, but definitely counts as the same. In such situations, individuals and employers need to understand the three biggest distinguishing features of sexual harassment. Sexual Harassment is always Unwelcome, Repetitive and Severe.
Thus, Sexual Harassment at workplace can take several different forms, and it is important to understand these forms and synthesise mechanisms to prevent and address them with times. Sexual harassment incidents will continue to take place, unless the person who is targeted knows that speaking up will garner them support and the perpetuator realises that they will be severely penalised. The fact remains that legal recourse to sexual harassment at workplace exists and has existed for some time now, and on paper, every organisation vows to deal with issues in a ‘strict’ and ‘effective’ manner, however, this intent has largely failed to translate into action. The several cases that have garnered media attention go onto show that the battle to identify and resolve issues sexual harassment at workplace in India has a long way to go and it will take a conscious and coordinated effort from the industry, organisations, employees and individuals to realise the depth and seriousness of the issue at hand.