In this blog post, Tanisha Agarwal, a student of Institute of Law, Nirma Universtiy, Ahmedabad, who is currently pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, discusses the labour law compliances under the Sexual Harassment of Women at the Workplace Act of 2013.

Introduction

Under the Indian Constitution, all citizens have the right to be engaged in the profession of their choice or to practice their own trade or business. The judgment in Vishakha v. State of Rajasthan recognised that actions which violate a person’s right to ‘gender equality’ and ‘life and liberty’ violate the corresponding fundamental right guaranteed under the Constitution. The Supreme Court laid down the ‘Vishakha Guidelines’, to safeguard female employees from sexual harassment at workplace. The Act is shaped on these guidelines – it is more inclusive in nature and tries to outline evidently the role, duties and accountability of employers in preventing and handling the sexual harassment of women at work The Equal Employment Opportunity Commission (EEOC) of United States which supervises the implementation of title has defined that “Unwelcome sexual advances, requests for several favours, and other verbal and physical conduct of a sexual nature constitute sexual harassment.”

As per the Australian Human Rights and Equal Employment Opportunity Commission, “Sexual Harassment is an unwelcome conduct, such as sexual advances and requests for sexual favours, when a reasonable person would feel offended, humiliated or intimidated by the conduct.” The Convention on Elimination of Discrimination Against Women additionally speaks that Sexual Harassment comprises of such unwelcome sexually determined behaviour as physical contacts and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be demeaning and may constitute a health and safety problem; it is discriminatory when the woman has rational grounds to believe that her protest would handicap her in association with her employment, including recruiting or promotion or when it creates a hostile working environment. The ILO (International Labour Organisation) definition of ‘Sexual Harassment’ is a strong form of gender discrimination based on sex, a manifestation of unequal power relations between men and women. Furthermore, the Supreme Court of India in the Vishakha case has defined the Sexual Harassment by the help of from CEDAW. It describes that “Sexual Harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: Physical contact and advances; A demand or request for sexual favours; Sexually coloured remarks; showing pornography; Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The Act aims to deal with sexual harassment as a social menace and, hence, has a wider ambit. Remarkably, the meaning of ‘workplace’ includes places that employees visit in the course of their employment as well as travel for their work, where the conveyance is provided for by the employer.

Types of Sexual Harassment

(i) Quid Pro Quo Sexual Harassment: (This for that): When a designated senior puts a condition to a female employee to perform certain act which is against her wishes assuring her for a favor in return. This concept is basically called “This for that”.
(ii) Hostile environment: It is created when an employee constantly and repeatedly do certain acts of sexual nature.

• Sexual pranks, or repeated sexual teasing, jokes, in person or via e-mail;
• A demand or request of sexual favour;
• Asking for Verbal or Non-Verbal advances;
• Touching or grabbing; etc.

Employer’s Duties

The Act lays numerous duties on employers. All employers must make sure that they offer a safe working environment for their employees. Staff Handbooks must contain provisions on sexual harassment and state that sexual harassment will be taken as misconduct, and employers ought to take suitable action if a sexual harassment incident is reported.

Employers are obligated to form an internal complaints committee (ICC) at each office or branch which has 10 or more employees. The ICC, which must have atleast four members, at least half of whom are women, will listen to the sexual harassment complaints. A Local Complaints Committee (LCC) will be set up in each district to hear complaints from institutions where there are fewer than ten employees, or where the complaint is against the employer himself.

The ICC and LCC have the same powers as a civil court, like collecting evidence and requiring witnesses to attend and produce evidence on oath, making recommendations to the employer, allowing the employee up to three months’ leave and granting compensation to be paid by the harasser by way of deductions from their salary. There is no upper limit on the compensation that can be given, and the aspects that will be taken into account include mental trauma, suffering and emotional distress, the loss of career opportunities and any medical expenses the employee incurs for physical and/or psychiatric treatment. The pay and financial status of the harasser may also be taken into account.

Employers will not be vicariously liable, so they are not mandated to pay the compensation awarded to the employee. The harasser is solely liable for this. Nevertheless, it is imaginable that the law will change over time and in the future, employers will be required to pay employees who have been subjected to sexual harassment at work.

The complaint to the ICC or LCC must typically be made within three months of the date of the suspected incident, or if there has been a series of incidents, within three months from the date of the most recent incident. The ICC or LCC’s inquiry into the accusation of sexual harassment should be concluded within 90 days, and the employer must assist them by providing documents, etc.

Another requisite under the Act is for establishments to conduct regular workshops and awareness training for employees and also to exhibit, in a noticeable place in the office, the order comprising the ICC and the penal consequences for employees who sexually harass female employees.

Employers also have a duty to aid the employee file a police complaint if she wants to press criminal charges against the harasser.

Compliances

There are many compliance necessities which need to be obeyed by an organisation. The primary requirements to be observed under the SH Act is as follows-:

(i) Drafting and implementation of Sexual Harassment Policy: The employer needs to prudently draft a sexual harassment policy which should cover the basics such as:

• ICC Composition: names, designation and contact details of the ICC members.
• What constitutes as a sexual harassment act like verbal, physical, quid pro quo, etc.

The policy should contain the process for Resolution, Settlement, Prosecution, enquiry and trial procedure to deal with

(ii) Amendment to the Employment Agreements: What businesses fail to do is to modify their employment contracts to be in tune with the SH policy. This is also a noteworthy feature as the employee signs the commitments under the employment agreement at the time of joining.

(iii) Formation of Internal Complaints Committee (“ICC”): This is one of the main duties for an employer to observe the following conditions. The structure of the ICC should constitute of a woman “Presiding Officer” at prominent designation, two members who have legal knowledge and have had experience in social work, one person who is familiar with the sexual harassment issues or a person from NGO, and it is mandated that more than 50% of the members are females in the committee.

(iv) Sensitization of the ICC and Employees: This is one of the crucial aspects to be followed by the organisation for the avoidance of SH at the workplace.
Briefing the employees (both males and females) about sexual harassment, what constitutes sexual harassment and consequences thereof,
conducting orientation sessions or seminars for the members of the internal committee
involving women in the workshops to make the workshop more successful and include case studies for better comprehension. Establishing a better security system in the office is also one of the ways, for example, cameras in the cabins and corridors. 

(vi) Filling of Annual Report by ICC: The businesses are obligated to file reports giving various data. The ICC shall prepare annual report under Section 21 of the Act: (i) number of sexual harassment complaints received in a year; (ii) number of complaints disposed of in a year; (iii) number of cases pending for more than 90 days; (iv) number of awareness programs or workshops against sexual harassment conducted in a year; (v) nature of action taken by the employer or district officer; and (vi) where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer. (As per section 22 of the Act)

You can learn about many such compliances and all that you need to know by taking up this course by the National University of Juridical Sciences. You can also learn a lot more about sexual harassment by taking up this course which speaks about in length details about how to implement sexual harassment prevention laws.

Conclusion

A growing number of complaints of sexual harassment at work places shows the better awareness. The prime objective of Act is to guarantee safe and secure atmosphere to every woman, regardless of her age, employment status, autonomy from all forms of sexual harassment by making the employer accountable for the same. Cases like TERI, Tehelka, etc. have set a specimen of how such eminent organisations faces the loss of repute if not observing with SH Act. The punishment prescribed for non-compliance under the SH Act is fine up to Rs. 1,00,000/- or cancellation of license to carry out the business/service by the organisation, which might eventually lead to defamation; attacking the name and goodwill of the organisation. To end, “it takes years to b