Sexual Harassment at Work Place, a brief note


Brief notes on Sexual Harassment at Work Place

Prior to the enactment of Sexual Harassment at work Place Act, 2013, employers in India had to adhere to the Vishaka guidelines, which were based on a 1997 Supreme Court decision that laid down steps to prevent and address sexual harassment in the workplace. Sexual Harassment of Women at Work Place (prevention, Prohibition and Redressal Act, 2013) was enacted on the 3, September 2013. Under the Indian Constitution, it is a fundamental right for women to be treated the same as men and not to be discriminated against simply because you are a woman. A lot of times, the cultural views of women in India prevent equality like the way we women are culturally viewed in society and that men are more valued than women. The traditional roles for women in society and practical ways do those views affect women in India. These traditional views form the core problems that impact women throughout their lives: sex selective abortions, female infanticide, discrimination in school and work, sexual harassment, dowry demands, sexual violence and treatment of widows. Women who are at the workplace can be subjected to sexual harassment from male colleagues.Interestingly, often sexual harassment is just as much, if not more, about exploiting a position of power or authority over a woman as it is physical attraction for a woman.

What is sexual harassment?

Key to determining whether conduct is sexual harassment is determining whether it’s unwelcome.  If it’s welcome behavior then it’s not sexual harassment. 

Whether the behavior is welcome or not is from the perspective of the woman, not the man.  It does not matter if the man thinks the woman likes or doesn’t mind his behavior.  It doesn’t matter if the man is completely clueless that his behavior is unwelcome to a woman.

As regards behavior the following is considered as sexual harassment:

  • Physical contact or advances – brushing, touching, etc.
  • Demand or request for sexual favors
  • Making sexist remarks
  • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
  • Making comments that are sexual in nature about the woman
  • Kissing sounds, catcalls or offensive gestures
  • Showing pornography or sexually-laced images or cartoons,
  • Alluding to sex or making sexual connotations in conversations or in writing
  • Via emails, on Facebook or on video chat

As regards the last point, it’s important to note that the physical, verbal or non-verbal conduct has to be sexual in nature to come under the protection of the law. 

What should you do if you are sexually harassed? 

Speak up and make a complaint: Please speak up and give your complaint in writing to the Internal Complaints Committee with supporting information on which you are basing your complaint, such as emails, text messages, or people who have seen the harassment. You make the complaint to the Committee where you are employed.  So if a colleague from another company that you do business with harasses you, you should bring the complaint to this Committee.

Confidentiality and protection to the victims 

  • Saying something about sexual harassment is very difficult, so there are protections for you if you do make a complaint. 
  • The Committee has a legal duty to keep the information you tell them confidential, at all times.  If the Committee needs to conduct an inquiry into the sexual harassment the Committee has a duty to do it in a discreet way.  The Committee has this duty so you can feel secure in being completely honest and open about the sexual harassment. 
  • Also, if you make a complaint, the Committee has a duty to protect you during the inquiry depending on situation and circumstances of the case. 

Complaint process

  • The Committee will make their determination and draft an inquiry report that will be submitted to the company management.
  • If the complaint is proved, then the Committee will make recommendations in the report that the Company should take to address the misconduct
  • The Committee has discretion on the remedies it will recommend.  Filing complaint with police
  • If the woman decides to go forward with a formal inquiry into the complaint, the Committee is required to file a complaint of sexual harassment to police.  If the woman decides to go through the conciliation process, the Committee has no duty to go to police
  • The women can also go to the police on her own to file a complaint.  The Committee has a duty to assist her in going to the police.
  • The three main provisions under the Indian Penal Code that apply to sexual harassment are
    • S.509 – Word, gesture or act intended to outrage a woman’s modesty
    • S.354A – new provision enacted earlier this year. It provides for punishment up to three years and a/or fine.
    • S.354 – assault or criminal force to woman with intent to outrage her modesty – other conduct that might not come under sexual harassment provisions.  It provides or punishment of 1 – 5 years and/or fine.

 Employer’s duties to its employees

  • The law gives the company certain duties under the law.  Of course, the overarching duty is for the company to provide a safe working environment for its employees.
  • The Company/Employer have the legal duty to organize trainings and workshops and formulate policy to redress sexual harassment at workplace.
  • Company should display the penal consequences for sexual harassment and list the members of the Internal Complaints Committee.
  • We’ve talked about the duty to file a police complaint or assist the woman in filing the police complaint. 
  • The company also has the responsibility to assist the Committee in carrying out its responsibilities under the Act, conversely this means that they cannot obstruct the work of the Committee.
  • The Company has the duty to carry out and monitor the recommendations the Committee makes on sexual harassment complaints under this new Act.