‘Good to know’ laws relating to sexual harassment at the Indian workplace

Let us begin by understanding what is sexual harassment? Any form of harassment at a workplace that involves the making of unwanted sexual advances or obscene remarks. Such harassment ranges from unwelcome sexual gestures, behaviours, sexually coloured remarks, physical contact/ advances, showing pornography, a demand/ request for sexual favours, any other unwelcome physical/verbal/non-verbal conduct that is sexual in nature. The critical factor here is the ‘unwelcomeness’ of the behaviour.

According to the Indian constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 and her right to life and live with dignity under Article 21.

We as a nation today are more aware of Sexual harassment and its repercussions. However the number of cases of sexual harassment complaints at the top 100 companies listed on the National Stock Exchange rose more than two-fold in the last financial year 2015-2016.

According to a FICCI – EY Report ‘Fostering Safe Workplaces – ‘36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act 2013. Also about 40% of the respondents are yet to train their ICC members. Nearly 35% companies surveyed were unaware of the penal consequences for non-compliance when constituting ICCs. Surprisingly, the issue was more pronounced among MNCs with almost 38% stating their ignorance. About 44% of the respondents’ organisations did not display the penal consequences of sexual harassment in their premises. SME sector fared low with 71% did not display such warnings clearly at their place.

In the year 1997 the Supreme Court of India passed a judgement, popularly known as Vishaka Judgement. Further in the year 2013, India passed a law on sexual harassment in the workplace – The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act includes all women employees in its scope, including those employed in the unorganized sector, as well as domestic workers.

Mentioned below are the 10 key features of the Vishaka guidelines that are ‘good to know’:-

1.The law applies to women harassed in the workplace including women working as domestic workers, daily wagers, temporary or permanent, full-time or part-time, as well as volunteers. The women may or may not be employed and can be of any age. The law is applicable to women and women only.

2.Sexual harassment includes any one or more of the following unwelcome acts or behavior:
•Physical contact or 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

3.The act of harassment can occur in the workplace and also if a woman is harassed while visiting a place arising out of or during the course of employment including transportation provided by the office, a complaint can be filed under this Act.

4.The Act requires all workplaces to set up Internal Complaints Committees to address the issue of sexual harassment. There will also be a Local Complaints Committee for each District where complaints can be filed.

5.An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee).

6.The Act provides the option of a settlement between the aggrieved woman and the responded through conciliation but only on the request of the woman. However, money compensation cannot be a basis for the settlement.

7.The inquiry has to be completed within 90 days.

8.In case of malicious complaints or false evidence, the Committee may take action against the woman/person. However, simply not being able to prove an allegation will not mean that it is a false/malicious complaint.

9.The identity of the aggrieved woman, respondent, witnesses as well as other details of the complaint cannot be published or disclosed to the public/media.

10.The Act also hopes to prevent such incidents by placing a duty on employers to hold regular workshops/awareness programmes as well as, display the consequences of harassment in the workplace. Every employer has a duty to provide a safe working environment to all employees.

This is the responsibility of employers’/ management/ HR to provide a safe working environment to women employees. It has been mandated to constitute the Internal Complaints Committee (ICC) and to display the penal consequences of sexual harassment. Human resources should ideally organize orientation programs for the members of the ICC and arrange awareness programs for employees.