What is Sexual Harassment at Work, India 2021
Sexual harassment at workplace is a huge problem all over the world. May it be a developed or an underdeveloped nation, atrocities and cruelties against women is common everywhere. It is seen to be happening more with women as they are considered to be the most vulnerable elements in these cases. Probably it is the main reason why “Me too” waves across the globe took place at such a great level. Therefore sexual harassment at workplace is a serious problem and has become one of those issues that needs judiciary’s attention.
What is Sexual Harassment at Workplace?
There is no certain definition of what is it exactly in literal terms but “The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act 2013 defines sexual harassment to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication) such as Physical contact and advances, A demand or request for sexual favours, Making sexually coloured remarks or Showing pornography or Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
With these examples mentioned above it is also important to understand what is sexual harassment at work and what is NOT? Let us understand the difference:
1. Sexual Harassment
- A male supervisor asking a female staff to stay back late in the evening, as his wife is away, so that he can spend some time getting to know her better
- A male programme manager asking his newly married male colleague about his sex life
- A new female employee being told by her supervisor, that as project funds are low, she will have to share the hotel room with him
- A female worker has said ‘No’ to her supervisor’s advances and now he is constantly finding faults with her work
2. Not a Sexual Harassment
- A female employee being asked to stay back late to complete a project work that is overdue for submission
- A male supervisor issuing a warning to a female subordinate who is always late to work
- Loud talk and sharing of cricket match scores in the office space and disturbing the environment
- Sleeping in the office premises
- Taking personal calls in the office and not completing tasks
What can you do if you’re being Sexually Harassed at Work?
This is totally a personal decision, and in order to figure out the right path for you. But before you seek out legal advice tailored to your situation, here are a few things you can do to start:
3. Document it
You can start keeping a record. It is always safe to have some kind of a log of the incidents that are happening. “If you decide to report sexual harassment at your workplace, it will help if you are able to find the specific date and particular comments or behaviours” says Seema Hapani, lawyer based in Mumbai. So when that colleague tries to crack a sexual joke or comment about you, write it down. This way you could report the harassment to your HR/Employer or the Union, you will be able to present details of all those incidents that happened in the past.
4. Make it Clear if you Feel Uncomfortable
Since the key content in the sexual harassment is the fact that the behaviour is “UNWELCOME”. Make it clear at that moment if you feel safe doing so. For example, you can say: That kind of conversation is inappropriate in the workplace. I felt uncomfortable. You should not communicate in that way. I do not like it. Do not talk to me about my body. It is offensive. Please stop doing it.If the harassment still continues and you choose to take your complaint to the employer, it can help to be able to truthfully say that you have made it clear the conduct is “UNWELCOME” and asked multiple times to stop it.
5. Find a Community to Get Help
It is always good to connect people or responsible personalities who can offer help in such situations. You can connect with similar groups/NGOs which work for women rights and offer help. You can also contact the Union leader who will support you and resolve your issue in the organization. Contact ABC persone here: link
6. File a Complaint
The final option would be filing the complaint against that person. You can file a complaint under the Indian Penal Code Assistance. But also remember that filing a complaint under IPC must be provided to the aggrieved should she choose to file a complaint in relation to the offense under the Indian Penal Code or any other law. Or, when an instance of sexual harassment amounts to a specific offence under the Indian Penal Code, or under any other law, the employer shall initiate appropriate action in accordance with the law by lodging a complaint with the appropriate authority.
7. International Laws and Policies for Sexual Harassment at Workplace
United Nations General Assembly Resolution on the declaration of the elimination of violence against women says that violence against women to include sexual harassment, that is prohibited at work, in educational institutions and elsewhere, and also encourages development of penal, civil or other administrative sanctions.
The Convention of Elimination of all forms of Discrimination against Women (CEDAW) directs states parties to take the required measures to eliminate discremination against women in all fields. Especially including equality under law, in governance and politics, at workplace, education, healthcare, and in other fields of public and social life.
The Beijing Platform for action recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple sectors including government, employers, unions and civil society.
The ILO Committee of Experts on the Application of Conversation and Recommendations has confirmed that sexual harassment is a form of sex discrimination covered by tthe Discrimination Convention of 1958. The ILO’s Indigeneous and Tribal Peoples Convention also specifically prohibits sexual harassment at workplace. The International Convention of Economic, Social and Cultural Rights contains several provisions especially important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate working environment.
8. India’s Law against Sexual Harassment of Women at Workplace - POSH Act
Workplace sexual harassment is a form of gender discrimination which violates a woman's fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India ("Constitution"). Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to deliver in today's competing world. Apart from interfering with their performance at work, it also adversely affects their social and economic growth1 and puts them through physical and emotional suffering.
India's first legislation specifically addressing the issue of workplace sexual harassment; the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") was enacted by the Ministry of Women and Child Development, India in 2013.
The Government also subsequently notified the rules under the POSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 ("POSH Rules"). The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 ("Criminal Law Amendment Act") which has criminalized offences such as sexual harassment, stalking and voyeurism.
The POSH Act has been enacted with the objective of preventing and protecting women against workplace sexual harassment and to ensure effective redressal of complaints of sexual harassment.
While the statute aims at providing every woman (irrespective of her age or employment status) a safe, secure and dignified working environment, free from all forms of harassment, proper implementation of the provisions of the statute remains a challenge.
9. Cases of Sexual Harassment in India
Case 1
The current case discusses Mary who in the was finishing her graduation from a presumed Foundation. She joined Teletol Services as a Graduate Engineer Trainee. Mary did her engineering in Electronics and Communication from St. Raphael's College of Technology (SRIT), Delhi (India), a head designing establishment of India. She had been a brilliant understudy all through. Being a consistently high performer, everybody around, expected her to get a job from one of the best companies that recruit from their campus.
But during 2008 recession hit India. As Mary and other students of her batch progressed through their engineering, recession also grew. A campus which was visited by more than 200 top companies was all dery during recruitment season. Teletol was one of the companies in the campus placement. Fortunately Mary was the only one from her college to receive the final offer from Teletol. 15th March 2009 it was, when Mary was on cloud nine. Her dream of working in a telecom company was finally accomplished.
For the first few weeks everything was according to Mary’s expectations. After spending some time with her team members she sensed a hidden awkwardness between them. Later she realised that her team members were not ready to accept her into the team. She tried all the possible ways to connect with them but sarcasm and bullying was all she got at the end.
One fine Tuesday morning Mary reached office at 7am sharp. Her manager, Arvind Shukla reached office at 10am and asked his secretary Linda to call Mary for a small meeting. Arvind wanted to apprise Mary with the new decision he had made that Mary has to come to work in night shifts as well. The night shift in switch begins from 10 pm and stretches till 7am. So Mary’s confrontation was not limited to her colleagues only but also to her manager.
She was stuck in the criticalities of her working environment conditions. She has been a remarkable employee, but presently her chief Arvind and her Human Resources Manager Rinu are forcing her to come to work in super late shifts. Besides, the supervisor of another division is also making moves towards Mary. Mary is in a dilemma whether to be a latent victim and proceed with her work or to report the issue to the concerned authorities or to stop and look for another work.
Case 2
This case is about a sales team leader Sharleen Kaur who was a victim of sexual harassment at workplace. Sharleen has more than 5 years of experience in sales and was leading her sales team in her previous company based in Mumbai. She has also won the “Employee of the Year” award twice during her tenure.
Sharleen was reporting to her senior Mr. Ayush Mehra, sales team manager for the last 5 years. Since Ayush has decided to move to Banglore, the company decided to fill the position with the new sales team manager. The company appointed Mr. Sebin Joseph from the Nagpur office as the new sales manager. Sebin was a fun loving and hardworking guy. Due to his charming personality he became everyone’s favourite. The team was happy with the new manager.
But one fine day he called Sharleen in his cabin. It was around 7 pm in the evening and all the team members were on their way to home. Sharleen went inside his cabin. He discussed the client pitch and suddenly came very close to her. “That was the first sign and I ignored it,” says Sharleen. “He was discussing the strategies and put his hand on my shoulder, I was very uncomfortable but I kept quiet,” she added.
After that incident she started getting inappropriate text messages from him. She chose not to reply and ignore that. “He used to get mad at me if I did not reply to his messages or did not visit his cabin,” Sharleed said. She was thinking about this for a week and finally decided to inform the HR. “I was very scared about this as everyone loved him and I thought nobody would believe me”, she stated that too. Sharleen took photos of all the text messages that he has sent. She also marked the date of the particular incident that happened. Finally the HR considered her case and briefed her about the company’s policy. Although different companies might have different policies against sexual harassment at workplace, but the prevention of sexual harassment under PoSH act has been followed by many companies.
10. Here is the brief description of Policy under PoSH Act
The policy is in accordance with the provisions of the sexual harassment of women at workplace (Prevention, Prohibition, and Redressal) Act, 2013. The purpose of this policy is to prevent sexual harassment against women in the workplace and also protect them. Every company aims to provide a safe and secure working environment for all the employees.
This policy is applicable to all the members of the company including the employers and those who are employed on regular, temporary, on a daily wage basis, etc.But the policy also extends to those who are not employees of the company such as customers, clients, visitors, interns, contract workers, suppliers, etc.
The policy suggests the following for prevent against sexual harassment at workplace:
Formation of ICC (Internal Complaint Committee)
Every company in which there are 10 or more employees must have ICC and all complaints regarding sexual harassment are dealt with the committee. The ICC should comprise four members among them half of the members will necessarily have to be women.
Who should be the four members if ICC
- A presenting officer, women working at a senior level in the office.
- Any member who is committed to the cause of women.
- Any member of the company who has legal knowledge and experience in social work.
- Any external member for example NGOs, any person familiar with issues related to sexual harassment.
The Complaints Committee is responsible for receiving and investigating every complaint of sexual harassment, submitting findings and recommendation of the inquiry to the employer before implementing any kind of appropriate action. The committee is also responsible to maintain confidentiality throughout the process.
11. Process of Dealing the Complaints
The complaint is needed to be logged within3 months from the date of incident along with any documentary evidence or witness if available. The committee can also extend the timeline to another 3 months if it is satisfied with the reasons which prevented the lodging of a complaint within the first 3 months. The complaint shall be in any form either through phone or email but every oral communication should be followed up with the written communication and in any case where a complaint cannot be made in writing then the presiding officer or any member of the committee shall assist the person for making the complaint in writing.
ICC can try and make parties to settle but monetary compensation is not the root for settlement. If the victim of sexual harassment is not ready to settle then the ICC will inquire into the complaint and both the parties will have a chance to present their sides or opinions. This process has to be completed within 90 days. After the inquiry, if the person who has committed such an act found guilty then the required action is taken by the respective authority. These actions can include:
- Formal apology
- Transfer of the person to other branch or department
- Suspension or termination of services of the employee who has found guilty
- Counselling
- A written warning to the concerned employee and a copy of that letter is maintained in the record
Penalty for Sexual Harassment at Workplace
If the employer would not comply with the law, the fine of 50,000 rupees can be imposed on him/her. On repeated non-compliance of law, employers can be penalized with twice the punishment. Non-compliance include cancellation of license, withdrawal or non-renewal of registration for carrying business.
Reliefs to Victim
- Monetary compensation
- Grant leave for 3 months
- Transfer the victim to another branch/department where he/she feels safe to work
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