Harassment at the workplace is infringement on an individual’s various fundamental and human rights, including but not limited to right to equality as per article 14 and 15, freedom to choose profession under article 19(g), protection of life and liberty under article 21 and is an attack on their dignity.
Though sexual harassment has been recognised as a gender based violence due to the overwhelming number of women who experience sexual harassment at workplace, it is not limited to women. In fact in a landmark judgement, Calcutta High Court held that same-gender complaints are maintainable under the Sexual Harassment of Women at Workplace Act.
To address the menace of sexual harassment at workplace the government of India came up with Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act,2013 and in this article we’ll be discussing this act and more relevant provisions.
What is Sexual Harassment at workplace?
Today, all workplaces in India are mandated by law to provide a safe and secure working environment free from sexual harassment for all women. The Act and Vishakha guidelines place an obligation on workplaces, institutions and those in positions of responsibility to create a safe workspace.
“Sexual Harassment” includes any of the unwelcome acts or behaviour (whether directly or by implication), which include but are not limited to:
- Physical contact or advances;
- A demand or request for sexual favours;
- Making sexually coloured remarks;
- Showing pornography;
- Any other other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The intent of the act does not matter and what is of relevance is the impact on the “aggrieved women”( which will be discussed below). The act should be sexual in nature and should be unwelcome. It is important to note that every experience of sexual harassment is subjective in nature and a cookie cutter model cannot be applied to every case.
In Dr. Punita K. Sodhi v. Union of India & Ors., the High Court of Delhi endorsed the view that sexual harassment is a subjective experience and for that reason held
“We therefore prefer to analyze harassment from the [complainant’s] perspective. A complete understanding of the [complainant’s] view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement. … Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive”
Some examples of Sexual Harassment are:
- Making sexually suggestive remarks or innuendos.
- Serious or repeated offensive remarks, such as teasing related to a person’s body or appearance.
- Offensive comments or jokes.
- Inappropriate questions, suggestions or remarks about a person’s sex life.
- Displaying sexist or other offensive pictures, posters, mms, sms, whatsapp, or e-mails.
- Intimidation, threats, blackmail around sexual favours.
- Threats, intimidation or retaliation against an employee who speaks up about unwelcome behaviour with sexual overtones.
- Unwelcome social invitations, with sexual overtones commonly understood as flirting.
- Unwelcome sexual advances which may or may not be accompanied by promises or threats, explicit or implicit. Controlling a person’s reputation by rumour-mongering about her private life
The Sexual Harassment at Workplace can manifest in two main forms:
Quid Pro Quo which is asking for sexual favours in turn of success at workplace
Hostile Workplace Environment which constitutes creating difficulties at workplace. Ogling, stalking and gossiping against someone constitute a hostile work environment, a form of workplace sexual harassment.
Who is an aggrieved woman?
Aggrieved Women can be a person working at a workplace or a visitor or can be a student there. As for what the definition “working” would include the domestic workers, person hired at ad- hoc basis, a volunteer or anyone receiving any kind of remuneration to be present at the place.
In addition it would include anyone employed through an agent or is under probation or apprentice scheme. The act does not cover just the “employee” of a place instead extends its protection to anyone who might need it.
What is a Workplace?
A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.”
The act covers both, the organised as well as the unorganised sector. An enterprise owned by an individual or self help group which employs less than 10 workers is considered an unorganized sector as per the act.
Therefore even a dwelling house will be considered as a workplace in case it employs any kind of house help and the act provides for a mechanism to report such cases of harassment.
Where to file a Complaint:
The Act provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints Committees must have 50 per cent representation of women.
- Internal Complaints Committee: It is mandatory for any enterprise with more than 10 members to constitute an internal complaints committee. In Ms. G v. ISG Novasoft Private Limited it was held that it is not enough to just have a grievance committee and Internal Complaints Committee should be constituted separately.
The chairperson should be the senior most women employee and a minimum of 2 other members in addition to an external member from any recognised NGO. It is mandatory that 50% of the members of the committee should be women.
- Local Complaints Committee: Any women working in an unorganised sector shall file her complaint in the Local complaints committee which will be headed by a district officer. In addition to that if the complaint is against the employer himself the LCC will address the complaint.
Who can complaint:
Other than the complainant herself, any of the complainant’s friend, relative or co-worker can file a complaint on her behalf. In addition to that an officer of State/National Women’s commission or anyone with the knowledge of the incident with the written consent of the complainant.
In case the complainant suffers from some kind of mental incapacity, her guardian, special educator or any qualified psychiatrist/ psychologist can file a complaint.
How to file a complaint:
The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.
Rights of the Complainant:
- An empathetic attitude from the Complaints Committee so that she can state her grievance in a fearless environment.
- A copy of the statement along with all the evidence and a list of witnesses submitted by the respondent.
- Keeping her identity confidential throughout the process.
- Support, in lodging FIR in case she chooses to lodge criminal proceedings.
- In case of fear of intimidation from the respondent, her statement can be recorded in absence of the respondent.
- Right to appeal, in case, not satisfied with the recommendations/findings of the Complaints Committee.
Rights of the Respondent
- A patient hearing to present his case in a non-biased manner
- A copy of the statement along with all the evidence and a list of witnesses submitted by the complainant
- Keeping his identity confidential throughout the process
- Right to appeal in case not satisfied with the recommendations/findings of the Complaints Committee
An inquiry must be completed within 90 days and a final report submitted to the Employer or District Officer (as the case may be) within ten days thereafter. Such report will also be made available to the concerned parties. The Employer or District Officer is obliged to act on the recommendations within 60 days.
Any person not satisfied with the findings or recommendations of the Complaints Committee or non-implementation of the recommendations, may appeal in an appropriate court or tribunal, as prescribed under the Service Rules or where no such service rules exist, in such manner as may be prescribed.
The Respondent if found guilty would be subjected to any penalty as recommended by the complaints committee. These penalties can vary from a simple reprimand to termination of employment. In case the complainant is found to falsely accuse the respondent, she may be subjected to similar penalties.
During the inquiry if the Complaints committee deems it fit, they can transfer the respondent or the complainant or send complainant on a paid leave. Complainant is also entitled to any pecuniary damage she suffered due to such harassment, this includes the doctor’s fee or loss of employment opportunity.
The Act provides for a redressal in Civil remedy and it doesn’t itself preclude any kind of criminal remedy you wish to seek.
Despite there being a redressal mechanism, due to poor implementation and lack of awareness and stigma around the issue less than 1% of cases are reported. Though there has been a steady rise in filing of complaints in such committees there is still a long way to go.
*You can download the workbook by the Ministry of Women and Child Development on Sexual Harassment here for more examples and information.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at firstname.lastname@example.org.
This Article is made by Aditya Pratap in assistance with Aditi Dixit.
fCases argued by Aditya Pratap can be viewed here.