This article was written by Rahul Bajaj of Nagupur University while he was interning at iPleaders.

The new Sexual Harassment of Women at Workplace Act of 2013 recognizes that equality of employment can be seriously impaired when women are subjected to gender-specific violence.

It, therefore, puts in place a robust and effective mechanism for dealing with cases of sexual harassment at the workplace. You can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences. You can also learn about implementation of sexual harassment laws by taking up this course.

This article seeks to analyze how an employer should deal with a complaint of sexual harassment.

Providing guidance and support:

If an employee complains of sexual harassment, the very first thing that an employer needs to do is to provide emotional support to the aggrieved woman. Women who are victims of such horrendous acts often experience a large array of emotions and don’t know how they should react in such a situation. Therefore, it is an employer’s responsibility to pay heed to the woman’s complaint and to discuss with her the possible ways in which the matter can be effectively dealt with. That being said, an employer should not impose his/her views on the aggrieved woman; he should just inform her about her entitlements under the Act.

Complaints to the internal complaints committee (ICC):

The employer must inform the aggrieved woman that, if she wants the ICC to conduct a formal inquiry, she must submit a written complaint within 3 months of the incident.

The internal complaints committee has the same powers as a civil court, so it can, inter alia, summon all parties that were involved in the incident in any way to interrogate them and ask the parties to produce all necessary documents. The employer must closely monitor the work of the committee in order to rectify any discrepancies that may arise. The employer should also ensure that the recommendations of the ICC are in accordance with the principle of natural justice. Similarly, if the woman wants to file a police complaint, the employer must do everything within his/her power to help the woman.

Compliance with report of ICC:

The Act states that the report of the inquiry must be provided to the employer within 10 days of completion of the inquiry. The report must also be submitted to all the concerned parties.

If the allegation against the respondent has been proven in accordance with Section 13 of the Act, the ICC shall advise the employer to take appropriate action in accordance with the provisions of service rules applicable to the respondent. The remedies may include termination of the respondent, deduction of penalty from his salary or wages, etc.

If the internal committee comes to a conclusion that it was a false or malicious accusation or that the witness has given false evidence or produced any forged or misleading document as laid down under Section 14, it may advise the employer of the complainant to take action in accordance with the provisions of the service rules. The employer is duty-bound to act upon the recommendations of the ICC within 60 days.

Maintaining confidentiality:

The employer must not reveal any information pertaining to the address of the aggrieved woman, respondent or witnesses, conciliation or inquiry, etc to any outsider. The employer must take all possible measures to safeguard the privacy of the aggrieved woman.

Helping the aggrieved woman to attain closure:

The employer should strive to help the woman in attaining closure in addition to implementing the recommendations of the committee. The woman may want, inter alia, to be transferred to another office, or may want an extended leave to come to terms with the trauma that an event of this magnitude unleashes. The employer must not hesitate to agree to such justified demands.

Conclusion

Various studies have shown that a major reason why acts of sexual harassment at the workplace go unchecked is because most employers, advertently or inadvertently, try to brush such matters under the carpet. Now, as never before, there is a dire need for employers to recognize their duty to provide a safe and enabling work environment to their female employees.

I will share some important information on how to implement the entire Anti-Sexual harassment law effortlessly, within 48 hours. The toolbox can be used by any HR manager, legal department, Company Secretary or any other person who would be given the responsibility. If you want to jump straight to the toolbox, click here.
Here’s a little background:

According to International Labour Organization, more than 90% of Indian businesses are not in a position to effectively implement the new sexual harassment law passed in 2013. Most employers, despite having the goodwill to prevent sexual harassment at workplace and implementing the law, do not know how to actually implement the law. There are others who do not want to implement it because of the time and cost involved. At the same time, there are serious consequences of not complying, including a fine of INR 50,000.

What if implementing the law is made absurdly easy? What if there was a toolkit which can be used to become 100% compliant organization within one day? What if there was a toolbox which you could simply open and start implementing the measures mandated by law?

We created just that. Here’s a toolbox that can be accessed with a username and password, from the web as well as an android app.

EMPLOYER’S TOOLBOX TO END SEXUAL HARASSMENT

This is a step by step guide to implement the anti-sexual harassment law for Indian businesses. This tool will enable an organization to do the following:

1.  Set up an internal complaints committee to deal with sexual harassment complaints

2.     Create an effective policy against sexual harassment within the organization and make it a part of general employment policy and employment agreements

3.     Procedures to be followed in case of an unreported misconduct

4.     Notices to be displayed at workplace (samples and standard formats included)

5.     Comply with mandatory periodic sensitization requirements (organize workshops and seminars with training content provided by iPleaders)

6.     Train the members of your internal complaints committee on how to handle sexual harassment complaints, hearings and decision, how to evaluate evidence submitted by victim and accused and what kind of remedies can they award

7.     Understand when to file an FIR or assist a victim to file an FIR

8.     Provide interim relief to women victims of sexual harassment

9.     Comply with legal requirements by submitting annual reports on implementation of the law

10.  How to deal with false and malicious complaints of sexual harassment

11.  Take D&O insurances to protect officers or directors against sexual harassment

12.  We will keep it updated with the latest legal developments that you need to implement

As a part of this toolbox, an organization will get access to the tutorials on how to implement the law, and all the sample documents and formats that will be needed in the course of implementation and execution. A large number of scenarios are also covered with specific guidelines on how to handle them if they arise. There would also be a number of planned activities which can be used by HR professionals or other managers to sensitize the organization and its members.

Please note: Failure to comply with these requirements can lead to an immediate fine of INR 50,000 and double the amount for repeated/ continued non-compliance. The government is also authorized to cancel the business licenses in case of repeated offences.

What does the toolbox consist of?

1.    Tutorials – video and text based on how to implement the law

2.    Step by step process documents and checklists

3.    Sample notices, orders, complaints, annual reports

4.    Confidentiality policy

5.    D&O insurance related advice

6.    Sensitization package – training material, case studies, activities and role plays for legally mandated sensitization workshop for employees

7. Tutorials on how to conduct procedures by Internal Complaints Committee and how to evaluate evidence submitted by the accused and the victim

8.    Case studies

What is the cost?
INR 5000 per license per annum is the price we have decided to start with. One license will be enough for most organizations having a single branch or office. You need to take a license for every branch or office. You can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences. You can also learn about implementation of sexual harassment laws by taking up this course. 

The website of End Sexual Harassment is here:  http://endsexualharassment.ipleaders.in

This article is written by Rahul Bajaj, a visually challenged law student from Nagpur University. Rahul wrote this article while interning at iPleaders.

Gender neutral laws have found acceptance in 77 countries including Denmark, Australia, Switzerland, the U.S., the U.K., etc, but the Indian Parliament has repeatedly refused to make the law against sexual harassment gender neutral in India. Currently the Indian law against sexual harassment protects only women.

The question whether the Sexual Harassment Act of 2013 and the Criminal Law Amendment Act should be gender neutral or not had many activists up in arms. It was also reportedly a cause of conflict between the Ministry of Home Affairs and the Law Ministry which led to an inordinate delay in the introduction of the anti-rape law.

However, the Sexual Harassment Act of 2013 that was finally passed by the Parliament takes it for granted that all potential victims are women. Here are the reasons that has been cited by ministries and parliamentarians:

Act of violence and power dynamics

The reason why the law is not gender neutral is because sexual harassment is viewed as an act of violence in the context of deeply entrenched power inequalities between men and women that have existed for centuries in our society. It was strongly felt that making gender neutral laws would only increase the aforementioned inequalities. Most studies show that sexual harassment usually begins with a man and is aimed at a woman. It was widely believed that a gender neutral law would make a mockery of this reality.

Fear of counter-complaints

Another challenge that was foreseen was that making the accused gender neutral would mean that complaints by women could be met with counter-complaints to get them to withdraw. As the odds are already heavily stacked against women, this would have made it even harder for them to secure justice.

Men, not boys

Another argument that was made in favour of making the law gender neutral was that the law would serve as a powerful tool to protect young boys from abuse. However, there was no basis to the argument because all young boys and girls are fully protected by gender neutral laws in the Protection of Children from Sexual Offences (POCSO) Act 2012.

Moreover, the socio-economic milieu in India is drastically different from the West because of the patriarchal nature of the society. As a result, men are often viewed as perpetual aggressors and women are considered to be weak and powerless.

Need for a gender neutral law related to sexual harassment

Many people believe that the Act undermines the basic truth that sexual harassment is neither about sex nor gender. It is only about power, and there is no reason why a woman in power cannot be as abusive as a man.

While it is true that more women are sexually harassed than men, this does not mean that men cannot be sexually harassed at all.

Cases of sexual harassment against men are not very prominently reported, so it is difficult to ascertain the ways in which men are victimized at work.

Furthermore, a man may also find it extremely embarrassing or humiliating to report a case of sexual harassment in a nation like India, where a man is, after all, supposed to be a MAN.

Men may not feel invested in the battle against sexual harassment

The downside of not having a gender neutral law is that many men do not feel invested enough in the new system to fight sexual harassment as they feel that the law is partial towards women and unjust in its refusal to protect men.

The civil society, men’s and women’s rights groups must engage in a constructive dialogue to make suitable amendments to the law to safeguard the interests of men. Such an amendment would go a long way in creating a society in which both men and women would be in a better position to understand each other’s unique challenge.

If you want to participate in the movement to stop sexual harassment at Indian workplaces, join us at http://endsexualharassment.ipleaders.in and access a free e-learning course to learn about your rights, duties and legal methods to bring perpetrators to justice. You can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences. You can also learn about implementation of sexual harassment laws by taking up this course.

This article is written by Rahul Bajaj, a law student at Nagpur University who has been interning at iPleaders at the time. I felt that we need to really get down to understanding what is sexual harassment all about at a psychological level to effectively counter it, as we work on http://blog.ipleaders.in/the-psychology-of-sexual-harassment, he wrote this very succinct and insightful article. Over to Rahul.

The last 3 decades have witnessed a new and sudden influx of scores of women in the labour force. More and more women are now opting for traditionally male-dominated professions. Even though the aforementioned developments have gone a long way in improving the status of women in the society, they have also brought a large array of problems pertaining to the safety of women in the workplace into the limelight.

As this article rightly points out, the entry of women into the labour force led to 2 major developments.

 On one hand, many men loathed female employees and perceived them as a serious threat in traditionally male-dominated workplaces. As a result, the women had to face overt discrimination, that is, they received less important job assignments, lower pay and did not get promoted and had to face sexual harassment.

The second reaction was to exploit the presence of women and make sexual favours and submission to sexual behaviours the sine qua non of employment. Succinctly put, women were asked to perform sexual favours to keep from being fired, demoted, or otherwise adversely affected at work.

As  this NYTimes article rightly points out, sexual harassment at the workplace has less to do with sex than with power. Men deliberately engage in sexual harassment and call attention to a woman’s sexuality in order to devalue her role in the workplace. As a matter of fact, men consider sexual harassment to be an effective way to keep women in what such men believe is their rightful place.

In India, sexual harassment is most frequently used as  a tool of patriarchy to frighten and devalue women  in occupations and workplaces where women are new and are, therefore, in the minority.

Various studies have shown that women who hold jobs traditionally held by men are far more likely to be harassed than women who do “women’s work.”

For instance, a 1989 study of 100 women working in a factory found that those who were working as machinists, a traditionally male-dominated job, said that they were  harassed far more than those women who were working on the assembly line, where generally more women are employed. It is pertinent to note that women in both groups approximately encountered  the same number of men at work.

The problem is further exacerbated by the fact that many men view sexual harassment as a mostly harmless form of interaction.

This can largely be attributed to the fact that many men entered the workplace at a time when innuendo and sexual teasing were extremely common, so they genuinely feel that there’s nothing wrong with it.

Another major problem is that many Indian men find it hard  to view women outside the realm of wives, daughters and mothers. As a result, they simply cannot view women as equal and competent members of society who should be treated with courtesy and respect.

In her book ‘Backlash: The Undeclared War Against American Women’, Susan Faludi suggests that male hostility toward women in the workplace is closely related to male attitudes about the “proper” position of a man in society. In her opinion, men often believe that it is their responsibility to provide for the family and they, therefore, use sexual harassment as an equalizer against women in power. They try to reassert control over women whom they view as their economic competitors.

In some cases, the situation is equally bad for women who opt for professions that are dominated by women.

Women working as secretaries, nurses, etc are often called demeaning names. Moreover, they are also made to believe that some amount of male domination and sexism is, in fact, normal.

The result of all these malpractices is that women are often subjected to pressure, degradation and humiliation and, therefore, find it hard to compete on a footing of equality with men in the workplace. Sexual harassment informally promotes what formal laws prohibit: discrimination on the basis of sex.

Want to fight sexual harassment? GO to this link, take a pledge and learn about your right and duties, and help others: http://endsexualharassment.ipleaders.in/

You can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences. You can also learn about implementation of sexual harassment laws by taking up this course.

Sexual harassment is a malady which has a large array of corrosive effects on business and workplaces – it undermines the rights and liberties of women and creates a hostile work environment. It can lead to a PR disaster for an employer (think Tehelka) and destroy the career of an accused. It can drastically reduce employee morale and affect productivity and loyalty of employees. Sexual predators may take advantage of organization’s culture and structure to engage in sexual harassment and create hostile work environment that damages a business’s reputation, profitability and internal workings. Read about psychology of sexual harassment: http://blog.ipleaders.in/the-psychology-of-sexual-harassment/

To understand sexual harassment in its entirety, it is necessary to view sexual harassment at the workplace from a historical perspective and look closely at the reasons which prompted the legislature to enact a law to combat this menace.

For centuries, sexual harassment has been a persistent and pervasive practice in most workplaces. Even in popular culture, depictions of sexual encounters and innuendos in the workplace has been pervasive and we can paint a pretty good picture of what it meant to be a woman in the workplace dominated by men from advertisements and movie scenes.

See this ad for example, from 1942:

From 1961:

Marilyn Monroe as secretary:

Or this indie film poster from 2002:

Think of all the James Bond movies that propagate the idea that women at workplace are hungry for manly attention and probably sex.

As Reva B. Siegel rightly points out in this article,  both slaves and domestic servants in the antebellum period in America were repeatedly subjected to sexual assault. Moreover, they were blamed for their own downfall as they were considered to be promiscuous by nature.

As Naina Kapur rightly observes in this article, in the 1980s, most women repeatedly emerged from the criminal justice system more humiliated, less empowered and with almost no sense of self left intact. This is epitomized by the gang rape of a tribal girl within the precincts of a police station in 1983, known as the Mathura case.

At the time of the incident, the girl’s boyfriend and family members were standing outside the police station. In its judgment, the Supreme Court of India described the girl as a “vicious liar” and stated that she was “habituated to sexual intercourse”. It further stated that the failure of the girl to ‘resist’ implied consent to the abuse.

In the 1980s, militant action by the Forum Against Oppression of Women (Mumbai) against the sexual harassment of nurses in public and private hospitals by patients and their male relatives, ward-boys and other hospital staff; of air-hostesses by their colleagues and passengers; of teachers by their colleagues, principals and management representatives; of PhD students by their guides, etc  received a lukewarm response from the trade unions and adverse publicity in the media (FAOW, 1991). Despite the sorry state of affairs, many women came forward to report cases of sexual harassment at the workplace.

In Goa, Baailancho Saad (‘Women’s Voice’) forced the chief minister, who allegedly harassed his secretary, to resign by organising demonstrations and protest rallies.

Before 1997, victims of sexual harassment were completely at the mercy of police officers who often refused to register such complaints. It is dismaying to note that there was no mechanism to hold such police officers accountable. Until 1997, women could lodge a complaint for sexual harassment at the workplace under 2 main  provisions of the Indian Penal Code, 1860: under S. 354 which pertains to the criminal assault on a woman to outrage her modesty, and S. 509 which pertains to the use of any word/gesture/act to insult the modesty of a woman.

The brutal gang rape of a Rajasthan state government employee brought the issue of sexual harassment at the workplace to the forefront of national public debate. The woman, who was a worker of the Women Development Programme, tried to prevent the occurrence of child marriage. The men who repeatedly raped her described her as “a lowly woman from a poor and potter community”. In the legal battle that subsequently ensued, the Rajasthan High Court did not hold the rapists responsible and the survivor did not get justice. Vishakha, a women’s rights group, vehemently opposed this decision and filed a public interest litigation in the Supreme Court of India. In its landmark decision in the case of Vishakha vs State of Rajasthan [1997(7) SCC.323] the Supreme Court recognized the absence of domestic law occupying the field and the need to formulate effective measures to check the evil of sexual harassment of working women at all work places. As a result, the SC issued a comprehensive list of guidelines about how employers should deal with cases of sexual harassment at the workplace. It also stated that these guidelines would only be applicable until the enactment of a law by the legislature to curb this menace.

Almost 10 years later, in 2007, the then women and child development minister, Krishna Tirath, introduced a bill known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill.

It is dismaying to note that this bill was approved by the Union Cabinet only in January 2010. It was tabled in the Lok Sabha in December 2010 and referred to the Parliamentary Standing Committee on Human Resources Development. The committee’s report was published on 30 November 2011. It was finally approved by the Lok Sabha in September 2012 and the Rajya Sabha in February 2013. The aforementioned data clearly shows the lackadaisical approach of the legislature while dealing with such a crucial issue of national importance. This delay can also be attributed somewhat to the failure of NGOs working for the rights of women in effectively asserting the rights of working women and lack of attention from the mainstream media and political parties.

Even after the law has been passed, it is an uphill battle – as most of India’s employers are far from implementing the law that has been made. Government has not taken any step yet to ensure that employers implement the law. The law, however, imposes an INR 50000 fine for non-compliance on employers. There are little resources and few experts available even for those employers who are willing to allocate resources towards implementation of the anti-sexual harassment law.

What could you do to make a difference?

If you are an employee (irrespective of your gender) in any Indian workplace, please visit http://endsexualharassment.ipleaders.in/ to learn about your rights and duties for free. You can also report violation or non-compliance by an employer (yours or any other) over here: http://endsexualharassment.ipleaders.in/report we would contact your employer and ask them to implement the law, and assist in the process.  We keep all our sources strictly anonymous. You can also take a pledge here to End Sexual Harassment and spread awareness about the cause.

If you are an employer, compliance professional or an HR professional in need of a simple solution to implement this law, please visit this page: http://endsexualharassment.ipleaders.in/employers-toolbox

You can know more about the law and various compliances related to it by taking up this course which is created by National University of Juridical Sciences. You can also learn about implementation of sexual harassment laws by taking up this course.

This article was jointly written by Ramanuj Mukherjee, co-founder of mass legal education startup iPleaders and Rahul Bajaj, a visually challenged law student at Nagpur University who is interning at iPleaders.