Sexual harassment at the workplace
Report of the Two Days Consultation on the Sexual Harassment at Work Place for Women (Prevention, Redressal, Prohibition) Act 2013
The consultation started with a warm welcome with members representing the states of Tamilnadu, Kerala and Andhra Pradesh.
The need for this consultation was briefed by Ms. Bimla, the Director of EKTA. Awareness on Violence against women and how men have to be included as a part of it has been debated and now various agencies have started taking up the work of working with men and boys to end Violence against women.
After this small briefing, the two days session was handed over to Mr. Harish, the resource guest from Mumbai. He is the former member of MAVA (Men against Violence and Abuse). His primary work is to try different ways and reach out to the boys, youth and men. All the members introduced themselves with a note on themselves on what they would like to know from this consultation.
Mr. Harish started with the Biological and Socially constructed sex and gender and how it operates as a system. The persistence of gender inequality and how women are forced to be vulnerable and the misconceptions of Sexual Harassment were also explained by him.
For fear of social stigma many cases are not reported in India but the most important few cases were highlighted. This is the second law in India which is specific to women. They are the PWDVA and Sexual Harassment of women at Work Place Act 2013. This act came into effect on April 23rd, 2013 and came into force on 9th December 2013. This act is based on the guidelines laid by Justice JS Verma in his Vishaka Judgment. Justice Verma visualized a situation where women should get justice without going to the police. There should be a democratic process and a mechanism within the organization to safe guard the women.
The documents which guide the new legislation are:
2. The article 15 which states specifically that the state is permitted to make special provisions for the benefit of women.
3. Article 16 (1) and (2) which prohibits discrimination in general and also discrimination on the basis of sex.
4. Article 21 which say on the right to live with dignity and work in a profession of one’s choice.
But Sexual Harassment denies women of the above rights.
Sexual Harassment is:
Human Rights Violation
Manifestation of Violence Against Women
Health & Safety issue
Never just about Sex, It is a Tool — Power & Control
Invades Privacy of individual
Sexual Harassment under the new Act:
Direct / explicit or implied unwelcome acts or behaviors that may include:
physical contact and advances
a demand or request for sexual favours
making sexually colored remarks
any other unwelcome physical, verbal or non verbal conduct of sexual nature
If the respondent’s conduct was welcomed by the complainant, the incident cannot fall under sexual harassment
Unwelcome Physical contact and advances are Touching, Hugging, Kissing, Pinching, Flirting, Brushing up against another’s body, Blocking a person’s path, Shaking Hands in an inappropriate manner and Following the person during working hrs., lunch or after working hrs. – form of stalking.
Unwelcome Verbal Behaviours are Obscenities that would be discomforting, Suggestive comments or sexist, lewd jokes, Double –meaning swear words, Sexual propositions, Inappropriate humor, Threats, Remarks about physical attributes, clothing, body parts, Using Terms of endearment e.g. honey, sweety pie and Calling by first name specially to the woman
Unwelcome Verbal Behaviours are Leering i.e. Staring in a sexually suggestive manner, Obscene gestures, Sexually suggestive glances, Suggestive noises, whistling, cat-calls, Sending sexual content on computers, display of offensive screen-savers / cartoons / graphics, printed calendars or hanging sexual posters, inappropriate letters or email / images, Derogatory Greeting Cards, Inappropriate telephone Calls, Late Night Message on Mobile Phones / Emails — even if not seemingly directly sexual e.g. Good Night, Gd Morning msg, Forcing the woman to view pornographic material and Throwing of Condoms on the way
The Internal Complaints Committee (ICC):
All workplaces employing 10 or more than 10 workers are mandated under the Act to constitute an ICC. The ICC will be a minimum 4 member committee under the Chairpersonship of a senior woman employee (Presiding Officer) and will include not less than 2 members from amongst the employees preferably committed to the cause of women or has experience in social work/legal knowledge and includes a third party member (social worker from NGO committed to the cause of women or familiar with issues relating to sexual harassment), One half of the total members on the committee should be women. A Committee member is to hold office for a period of 3 years from the date of nomination as per the rules prescribed. Separate ICC s will be formed for Subsidiary Companies
The Local Complaints Committee (LCC):
Complaints from workplaces employing less than 10 workers or when the complaint is against the employer will be looked into by the LCC. A District Officer notified under the Act by the Govt. He / She could be District Magistrate / Additional District Magistrate / Collector / Deputy Collector who will constitute the LCC at the district level. LCC will also look into complaints from domestic workers and those made against employers. LCC will be a five member committee comprising of :
Chairperson to be nominated from amongst eminent women in the field of social work or committed to the cause of women, one member from amongst women working in block / taluka / tehsil / municipality in the district, two members of whom at least one shall be a woman to be nominated from NGOs committed to the cause of women having at least 5 yrs. experience in field related to women’s empowerment. At least one of the 2 nominees should preferably have a background in labour, service, civil or criminal law or legal knowledge. The woman should belong to SC / ST / OBC / Minority Community. The concerned officer dealing with the social welfare or women and child development shall be an ex-officio member.
Conciliation: The Act has a provision for conciliation. Prior to beginning any inquiry, the ICC can take steps to settle the matter between the aggrieved person and the respondent. However this option must be used only at the request of the aggrieved person, with extreme caution. The Act also provides that monetary settlement shall not be made a basis of conciliation. If any of the conditions of the settlement is not complied with by the respondent, the complainant can go back to the Committee who will proceed to make an inquiry
The Enquiry Process:
The Committee is required to complete the inquiry within a time period of 90 days. Confidentiality should be maintained throughout the process. On completion of the inquiry, the report will be sent to the employer and should take action on the report within 60 days. The Internal Committee has the same powers as in a civil court like Summoning and enforcing attendance of any person and examining him/her on oath, requiring the discovery and production of documents e.g. call records
A the time of filing of the complaint, the complainant shall submit to the ICC 6 copies of the complaint along with supporting documents and the names and addresses of the witnesses.
On receipt of the complaint, the ICC shall send one of the copies received from the aggrieved woman to the respondent within a period of seven working days.
The respondent shall file his reply to the complaint along with his list of documents, and names and addresses of witnesses within a period not exceeding ten working days from the receipt of the documents sent to him by the ICC .
The ICC shall make inquiry into the complaint in accordance with the principles of Natural Justice, giving fair opportunity to the Complainant and the Respondent.
If the complainant or respondent fails, without sufficient cause to present herself or himself for 3 consecutive hearings conveyed by the Presiding Officer termination or exparte order may not be passed without giving a notice in writing.
The parties shall not be allowed to bring in any legal practitioner to represent them in their case at any stage of the proceedings before the ICC.
Relief during pending of enquiry: When the enquiry is pending, if the aggrieved person gives in writing the ICC may recommend the employer to transfer the aggrieved person to any other workplace, grant leave to the aggrieved person up to a period of three months or grant such other relief to the aggrieved woman as may be prescribed.
Enquiry report: The report should be submitted within 10 days of completion of the inquiry and to be made available to the concerned parties. The employer shall act upon the recommendations within a period of 60 days. In case the complaint has been found proved, then the Committee can recommend action in accordance with the provision of service rules applicable to the respondent or as per the rules which will be prescribed, where such service rules do not exist. Recommended Action may include a written apology, letter of warning, reprimand or censure, suspension without pay, withholding of promotion, withholding of pay raise or increments, transfer, demotion, termination from service or undergoing a counseling session or carrying out community service. When the accused is of a higher cadre, the severity of the punishment is also high.
Compensation: For the purpose of determining the compensation the ICC will have to take into regard: the mental trauma, pain, suffering and emotional distress caused to her, the loss in career opportunity due to the incident, medical expenses incurred for physical or psychiatric treatment; income and financial status of the respondent and the feasibility of payment in lump sum or in instalments
False Accusations: If the Internal Committee comes to the conclusion that it was a false complaint, it may recommend to the Employer / District Officer to take action against the complainant in accordance to the provisions of the service rules or where no such service rules exist, in such manner as may be prescribed. This may include a written apology, warning, reprimand or censure, withholding of promotion, withholding of pay raise or increments, terminating the respondent from service or undergoing a counseling session or carrying out community service
Duties of the Employer: The Act casts a responsibility on every employer to create an environment which is free from sexual harassment. Employers are required to formulate and widely disseminate policy on Prohibition, Prevention and Redressal of Sexual Harassment at Workplace, Organize workshops and awareness programmes at regular intervals for sensitizing the employees about the provision of the law, display notices in conspicuous places regarding the constitution of Internal Committee — Names & Contact Details, Penal Consequences of Sexual Harassment etc and treat sexual harassment as a Misconduct and initiate action for any such misconduct.
=> The Annual Report which the ICC shall prepare shall have the following details:
number of complaints of sexual harassment received in the year
number of complaints disposed off during the year
number of cases pending for more that 90 days
number of workshops or awareness programs conducted against sexual harassment
nature of action taken by the Employer /District Officer
This information has to be included in the Annual Report of the organization as per Sec. 22 of the Act. An employer will be liable to a fine of Rs 50,000/- in case of violation of duties under the Act and in case of subsequent violations the amount of fine will be double together with penalty in the form of cancelation of the company’s licence.
There were open discussion on how to take a complaint, how to create an enabling environment, gathering information, the skill of tackling the emotions with the aggrieved and the interviewing process.
The Report Format: Copy of Findings to be given to both parties to enable them to make representation to the Committee. Only after this, the Committee has to give its final decision in the matter. After the ICC arrives at the conclusion that the allegation against the respondent has been proved or disproved as the case maybe, it shall submit a report to the employer
Summary of the case filed
Summary and minutes of the proceedings during the case hearing
Recommendations of the committee on the action to be taken
Separate notification of the viewpoint of the external member in case of a difference of opinion on the case
The participants divided into two groups and debated on the myths on Sexual Harassment. The two days session as really enriching and fruitful to the participants and the session came to an end.