Introduction
Sexual harassment at the workplace, a form of gender specific violence that is directed against women [1], is an act of sexual discrimination which predominately affects women’s safety, security, dignity and equal opportunity in employment. Even when there are no instances of physical violence, the harassment causes a lot of fear, stress and other forms of health concerns besides creating a hostile working environment. It results from a misuse of power- not from sexual attraction [2], and reflects a disparity in power between the perpetrator and the victim. Women are often forced to leave the workplace due to continued harassment. This violates their constitutional right to equality [3].
Following a gang rape of a social worker who tried to prevent a child marriage in Rajasthan, in a crime that shocked the nation, women’s groups filed a Public Interest Litigation before the Supreme Court that led the court to issue a series of guidelines (termed Vishaka guidelines) addressing sexual harassment at the workplace.
Legislation pertaining to sexual harassment at the workplace
After a period of sixteen years, the Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was enacted in 2013 that now covers all work places and protects working women of all sectors including self-employed women when they are harassed in their place of work.
The Act is gender-specific and the definition of sexual harassment is inclusive of all forms of sexual act that a woman would find unwanted. Examples would include physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or no verbal conduct of a sexual nature.
It also includes quid pro quo harassment which implies a promise of preferential treatment for sexual favours or a threat directed against the woman if she does not consent to the sexual demands made upon her. Included in the definition is interference with work and humiliating treatment that would affect a woman’s health and safety.
Remedies under the Act
The remedies under the statute are civil in nature. The Act makes it very specific giving the right to a woman to take recourse to criminal law and file a criminal complaint if she so chooses in which case there is an obligation on the part of her employer to assist her for the process.
The Onus under the Act is not just on the direct employer but anyone who is in charge of the workplace. Also any woman who comes to the workplace but is not an employee is entitled to protection under the Act. To give an example, if a tea-seller, though not an employee comes to the workplace only to deliver tea but is sexually harassed, she would get the benefit of the Act.
Given the extension of the workplace the understanding is very nuanced. To give another instance, in a complaint before an IT Company, the allegation was that the male colleague misbehaved with the woman employee in her hotel room when they were travelling on work. While denying the incident, he took the defence that she had invited him to her room for dinner and the bedroom was not a workplace. Since both of them were travelling on work and would at times work from their room, the company held that the hotel room would also be their workplace and the Act would be applicable.
Procedure Under the Act
Under the Act, every establishment that has more than ten employees is required to set up an Internal Complaints Committee compromising a minimum of four members, at least half of whom should be women. The Presiding Officer must be a senior-level woman employee from within the organization and two employees who must be committed to the cause of women or who have experience in social work or legal knowledge. Additionally there must be one external member from an NGO or association committed to the cause of women or a person familiar with issues relating to sexual harassment.
Elaborate procedures are laid under the rules for filing a complaint. A complaint can be also be filed in a representative capacity by a family member and other persons detailed under the Act and must be done within ninety days, but the committee can extend the time on proper explanation. During the pendency of the complaint, the committee can recommend that the complainant or the respondent be transferred. The woman is entitled to take three months leave when the enquiry is pending which is over and above her actual leave in the establishment.
The committee can initially consider conciliation proceedings. Many organisations try this with their Human Resources Department, and, if that fails, the complaint is placed before the committee.
The process before the committee requires that the copy of the complaint is sent to the respondent (against whom the allegation is made) and both parties are required to give their list of witnesses and documents which they rely upon to the committee within a period of ten days. The enquiry is expected to be done according to the principles of natural justice. While the rules do not define natural justice, the two fundamental principles developed in India rest on the foundation that there must be no bias and that the other side must be heard. Within the framework of these two principles various processes have developed in administrative and service law in judicial precedents.[4]
In an enquiry, both sides have a right to contradict the evidence of each other by a method of examination and cross-examination but not in the way it is done before a court. The parties are not allowed to directly question each other or their witnesses but are required to give their list of questions that they would want to ask the witnesses, to the committee. The committee questions the witnesses and gives the answers to the complainant and the respondent. If further clarifications or additional questions are sought from the parties, the committee does so.
Some committees record the proceedings based on their office protocol and also conduct enquiry through video conferencing if the witnesses are not in the same city as the parties. But the recordings, if done, have to be kept strictly confidential since proceedings under the Act cannot be published. Both parties cannot be present together during the enquiry and are not supposed to influence the witnesses or discuss the fact of an enquiry. This is easier said than done, and the witnesses get to know about the enquiry since they are all in the same establishment, and the respondent, if in a higher position often tries to influence them. The proof of such influence is very hard to find. Lawyers cannot appear before the committee.
The committee has the power to recommend interim relief during the enquiry. It can recommend to the employer to restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report. In the case of an educational institution, it can restrain the respondent from supervising any academic activity of the aggrieved woman.
If there are no service rules in the establishment, the Committee can recommend the following actions that can be taken by the employer — a written apology, warning, reprimand or censure, withholding of promotion pay rise or increments, counselling sessions, carrying out community service or as a last measure termination. If it is an establishment with service rules the Committee can recommend that the salaries of the respondent found guilty be deducted and compensation be paid to the woman. In a situation where the salary cannot be deducted the employer can be asked to pay the sum. Establishments that have branches in different cities are required to have separate committees in each place.
Besides having an obligation to provide a safe working environment and treat sexual harassment as a misconduct under the service rules and initiate action for the same, the employer is required to display at any conspicuous place in the workplace, the penal consequences of sexual harassments and organise workshops and awareness programmes for sensitising the employees with the provisions of the Act and orientation programmes for the members of the ICC. All establishments are required to include in its annual report the number of cases of sexual harassment filed along with details of their disposal. But this is rarely done.
The aggrieved woman, or the respondent, can appeal against the recommendations made by the ICC or the non-implementation of such recommendations. In such cases, the appeal lies with the Appellate Authority notified under the Industrial Employment (Standing Orders) Act, 1946 or under the service rules as applicable to the concerned respondent.
The statute has a specific provision in relation to a false complaint made by a woman. A false complaint is one where the aggrieved woman intentionally produces false or misleading documents, information etc. and maliciously makes allegations against the respondent. Merely that the allegation is not proved does not make it a false complaint.
In such cases, the ICC may recommend to the employer to initiate separate proceedings where the respondent has to prove that the complaint was a false one. The ICC cannot pass strictures against the aggrieved woman in the inquiry proceedings while dismissing the complaint.
Local Committees
Women who are not in an organised sector, or work in establishments that have less than ten employees can give a complaint before the Local Committee. This Committee is constituted in every district and a District Magistrate or Collector is notified as a District Officer. Since this committee works completely outside the structured organised structure it can be more independent than the other committee. The Chairperson is nominated from eminent women in the field of social work and committed to the cause of women. One member is nominated from amongst women working in the block, taluka, tehsil or ward, two members one of whom is a woman, nominated from NGOs or organisations committed to the cause of women, or a person familiar with issues of sexual harassment. At least one of the nominees must be a woman belonging to the Scheduled Caste or Scheduled Tribe or other Backward Classes or minority community notified by the Central Government from time to time. The concerned officer dealing with social welfare or women and child development in the district is an ex officio member.
Compared to the Internal Complaints Committee the local committee is definitely more independent as it is not drawn from an office hierarchy. But the difficulty that this committee could have is the paucity of funds if the Governments do not take the process seriously. [5] Moreover respondents against whom complaints are made often do not take the summons and enquiry seriously and there are many instances when they do not participate. The committee can pass an exparte order in such situations and need to facilitate the complainant to approach the criminal justice system.
Conclusion
The Statute is a welfare legislation. It has provided a structure that if used imaginatively and creatively could go a long way to address harassment at the workplace. It has its limitations. It does not address harassment of transgenders. But it can work successfully if employers take the issue seriously. The statute ought not to be considered as punishment oriented but as one that seeks to improve gender relations at the workplace. Prompt action will enhance the reputation of the workplace and boost employee confidence and productivity. It will be a win-win situation for all.
Notes:
[1] CEDAW Committee General Recommendation No 19 Para 17.
[2] Petrocelli, William and Repa, Barbara Kate 1992 Sexual harassment at the job, Nolo Press, Pg 19.
[3] Vishaka Vs State of Rajasthan https://indiankanoon.org/doc/1031794/
[4] https://indiankanoon.org/doc/127629655/ Ashok KumarSingh Vs University of Delhi and others August 18, 2017 a detailed procedure is given for committees to deal with complaints.
[5] https://www.epw.in/journal/2020/20/review-womens-studies/examining-local-committees-under-sexual-harassment.html a detailed discussion on the local committee Anagha Sarpotdar, Economic and Political Weekly, Vol 55, Issue 20, 16th May 2020.
Geeta Ramaseshan is a senior advocate practicing in the Madras High court. She has worked extensively in the area of Women’s Rights and Child’s rights. She is a guest faculty at the Asian college of journalism where she teaches a course on Media Law and Society.