This article is written by Bhaskar Tryambakrao Behere who is pursuing an Executive Certificate in Labour, Employment and Industrial Laws for HR Managers from LawSikho.

Introduction

Sexual harassment is a violation of the fundamental rights of woman to equality and live with dignity. As per Articles 14, 15 and 21 every woman has fundamental rights to equality and to live with dignity. In 1997 Supreme Court issued guidelines and acknowledged the Sexual harassment is a violation of human rights. Extension to Vishakha guidelines, Government of India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act, 2013) which is notified on 9th Dec 2013. Objective of the act is making workplaces sexual harassment free by preventing, prohibiting and redressing inappropriate conducts against women in the workplace. POSH Act, 2013 is applicable to all workplaces in India. 

Regardless of employee count, POSH Act, 2013 imposes certain obligations on every employer to provide a safe workplace. In accordance with Section 19 of the POSH Act, 2013 all employers are required to comply with the obligations. Every employer is required to implement Anti sexual harassment policy to prevent the occurrences of workplace sexual harassment and to provide safe workplace to women. Every employer shall conduct sensitisation programmes, workshops periodically for employees. In order to create awareness among employees and any other person visiting the workplace, employers must display notices/posters at any conspicuous place in the workplace. Under the law submitting annual report pertaining to workplace sexual harassment cases to District Officer is mandatory for all employers.

Under section 4 of the POSH Act, 2013 every organisation employing 10 or more employees must constitute an Internal Complaints Committee (ICC). ICC is a redress mechanism which handles complaints of workplace sexual harassment against the woman. 

It is optional for organisations having less than 10 employees to constitute ICC. 

Composition of ICC

Every employer must constitute ICC at each office or branch through written order. Every branch, unit or administrative office must have a separate ICC. Composition of ICC must be as below-

No	Member	Eligibility
1	Chairperson	Must be a senior woman employee from the workplace. If senior woman employee not available then nominated from another office/units/department/workplace of the same employer.
2	2 Members (min)	Any two employees from workplace who are committed to the cause of women / having legal knowledge/experience in social work.
3	External Member	External member should be amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment.

It is mandatory that at least fifty percent of the total members shall be women. It is not necessary that an external member should be a woman.

For the organisations having less than 10 employees, under section 5 of the act, the appropriate government set up a Local Complaints Committee (LCC) at every district place.

Composition of LCC

LCC receives complaints from aggrieved woman: 

• who works in unorganised sector, or
• victimized by employer, or 
• works in an organisation having less than 10 employees.

Under rule 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, external member should be familiar with the issues relating to sexual harassment and having expertise in issues related to sexual harassment for the purpose of clause (c) of sub-section (1) of section 7. It may include:

(a) a social worker with at least five years’ experience in the field of social work which leads to creation of societal conditions favourable towards empowerment of women and in particular in addressing workplace sexual harassment;

(b) a person who is familiar with labour, service, civil or criminal law. 

What is Sexual Harassment?

Sexual Harassment is unwelcome act or behaviour with woman. It may be directly or by implication.  It includes-

• physical contact and advances; or
• a demand or request for sexual favours; or
• making sexually coloured remarks; or
• showing pornography; or
• any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Under section 3(2) of the POSH Act, 2013, if the following circumstances, among other circumstances occurs or is present in relation to or connected with any act or behavior of sexual nature may amount to sexual harassment:

• implied or explicit promise of preferential treatment in her employment; or 
• implied or explicit threat of detrimental treatment in her employment; or 
• implied or explicit threat about her present or future employment status; or 
• interference with her work or creating an intimidating or offensive or hostile work environment for her; or 
• humiliating treatment likely to affect her health or safety.

Sexual harassment broadly categorised in 2 categories:

• Quid Pro Quo harassment; 
• Hostile Work Environment.

Quid pro quo harassment

Quid pro quo is a Latin word means this for that. Mostly it occurs in matrix of power. Manager/employer/authority figure offers benefits to woman employee like promotion, pay hike, additional benefits or advance training etc in return of his sexual demand. He threatens the victim for not fulfilling his wish of sexual nature.

A threat of job, career or character on refusal of demand for sexual favor is Quid pro quo sexual harassment. On refusal of sexual favour victims may face adverse job conditions. Consequences on refusal of demand of sexual nature could be-

• Fired from job;
• Withholding salary increment;
• Demotion;
• Salary reduction;
• Change in employment benefits;
• Change in job responsibilities;
• Smear character.

Scenario

Pooja is a young and clever management trainee who joined a management consultancy. She is a hardworking and honest employee of the company. She goes for client meetings and presentations with her senior Pradeep. One day meetings go up to late evening. It would be late to reach back to home, so Pradeep offers dinner to Pooja. After dinner Pradeep proposes to her to spend the night with him. Pooja refuses his proposal firmly and politely. Next day again Pradeep repeats his request and on refusal of Pooja, he threatens her that if she doesn’t accept his request, he will tell everyone that she spent the night with him.

What is the quid pro quo harassment?

In the above example, Pradeep threatens Pooja, if she doesn’t agree with his request of a sexual nature, he will smear her character at the workplace. As a person wants to use sexual favour to her advantage constitute quid pro quo sexual harassment. Pradeep’s behaviour is sexual in nature, unwelcome and has a negative impact on Pooja.

Hostile work environment

Superior or any other employee makes sexually coloured remarks, makes gender related comments, gestures, shows porn videos or pictures, rude jokes, sends messages or emails, touches body and humor that affects a woman employee’s work performance. It deeply affects mental health and safety of women employees at the workplace.

Scenario

Rajani is a young widow who works as a housekeeping staff in Hospital. She is hardworking and punctual in her work. She works under the housekeeping supervisor Rajesh. Whenever Rajesh finds Rajani alone in wards doing cleaning & mopping, Rajesh stares at her, sings songs, sometimes passes comments. It makes her uncomfortable. Other ward boys also gossip against Rajani. When Rajani finds Rajesh leering at her, she questions him. He says to her that he is looking after the work only.

What is Hostile work environment sexual harassment?

In the above example, staring, singing songs, leering and gossiping against Rajani are unwelcome acts and constitute hostile work environment, a form of sexual harassment at workplace.

Types of Inappropriate Conduct

Inappropriate behavior or misconduct with woman employee constitute workplace sexual harassment. Some of the inappropriate conducts are as below-

• Staring, leering, winking, licking lips or unwelcome touching;
• Suggestive comments or jokes;
• Unwanted invitations to go out on dates or requests for sex;
• Intrusive questions about a person’s private life or body;
• Unnecessary familiarity, such as deliberately brushing up against a person;
• Emailing pornography or rude jokes;
• Displaying images of a sexual nature around the workplace;
• Communicating content of a sexual nature through social media or text messages;
• Using power positions to request for favours or threats on loss of privileges or loss of job;
• Touching, petting, caressing, kissing, brushing against another’s body;
• Blocking, following and cornering;
• Referring as honey, sweety etc or innuendos;
• Asking for sexual fantasies, spreading lies of sexual nature;
• Physical assault and rapes.

Other facts about Sexual Harassment

There are many misconceptions and myths about sexual harassment of woman at workplace. 

Myth#1: Only men are harassers.

Fact: Anyone, regardless of gender can be a victim.

Myth#2: Sexual harassment is  physical in nature.

Fact: Sexual harassment is unwelcome conduct or behaviour which can be verbal, non-verbal, physical, directly or by implication.

Myth#3: Sexual harassment has to occur in physical workplace.

Fact: Sexual harassment can be happened at anywhere, such as work from home, parties, conferences, offsite, transportation provided by employer etc. Under the POSH Act, 2013, anyplace visited by an employee on account of work is defined as a workplace.

Myth#4: No means Yes.

Fact: No means Yes is a common excuse in sexual harassment by harassers. When a woman refuses for any demand or favour of sexual nature, it clearly means No.

Myth#5: An act was not intentional.

Fact: If an act is found unwelcome to the victim then it is deemed to sexual harassment. Sexual harassment is the impact and intention doesn’t matter.

Myth#6: Past history of consensual relationship between victim and harasser.

Fact: Act or behaviour was acceptable in the past doesn’t mean continual acceptance of that act or behaviour. Consensual past relationship between two persons cannot invalidate occurrences sexual harassment in the present.

Myth#7: Sexual Harassment is a repeated action.

Fact: Any inappropriate single incident impacts on victim is a sexual harassment.

Some of the following act or behaviours may not constitute sexual harassment at workplace-

• Following up on work absences;
• Requiring performance up to the job standards;
• Stress related to work i.e. deadlines, quality work;
• Conditions of work;
• Constructive feedback about mistakes.

Conclusion

Irrespective of the size of the organization, legal responsibility for non-compliance is upon the employer. For not complying with the POSH Act, 2013 organisations may face some consequences like statutory fine of INR 50000, reputational risk, risk of cancellation of business license, employment related litigation and imprisonment for violation under the Companies Act, 2013.

Safe workplace is every woman’s right. Every employer must provide a safer work environment to women by prioritising prevention and establishing a redress mechanism in the workplace.

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