This article is written by Shreya Tripathi from Banasthali Vidyapith, Jaipur. In this article, she has discussed Sexual harassment at workplace and the process of filing a Complaint.

What is Sexual harassment?

Sexual harassment is defined under Section 2(n) of the act. Sexual harassment includes any one or more of the following unwanted behaviour (whether it is directly or indirectly related to:

Simply, it means that by verbal, writing or by any other gesture that makes you feel uncomfortable made by another person and you want to stop the act.

In Apparel Export Promotion Council vs. A.K. Chopra,1997 IIAD Delhi 12, secretary of the chairman was being molested and she was asked for sexual favour a number of times. This is an important case for the development of rules or laws relating to Sexual harassment.

Verbal or written

  1. Passing comments on someone body, personality, clothes or relationship.
  2. Sending or making a sexual and double meaning joke.
  3. Asking for the favour of a sexual act.
  4. Making rumours about the personal and sexual life of an individual.

Physical

  1. Blocking someone’s path.
  2. Touching someone in an inappropriate manner.
  3. Forcefully hugging, kissing and massaging.
  4. Assaulting.

In, Shanta Kumar vs. Council of Scientific and Industrial research and others., WP © No. 8140/2010 , the High Court of Delhi stated that only Physical contact will not fall under Sexual Harassment. The contact should be in relation to Sexual intention.

Nonverbal

  1. Stalking an individual.
  2. Staring with a wrong intention at someone’s body.
  3. Making weird facial expressions of sexual essence.

Visual

  1. Showing pornography.
  2. Sharing double meaning jokes, pictures, emails or drawings.

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What are the objectives of the Act and when was it passed?

The objectives are as follows:

  1. Safeguard the women’s at the workplace against sexual harassment
  2. Prevention
  3. Redressal of complaints related to sexual harassment

And this act was first passed by The Ministry of Law & Justice on 22nd April 2013. Further, the provisions of the act came into force on 9th December 2013.

Who are Aggrieved Women?

Section 2(a) of the act defines “Aggrieved women”. This particular act safeguards the rights of every female to be safe and protected at the workplace. The right of every employed female is protected under this act whether their period of working is permanent or temporary.

Basically, it includes all kinds of women whether she is a contractor, trainee, co-worker or anyone else. It also includes the dwelling house concept under this act and the main motto is to earn remuneration for their performance.

                                                   Aggrieved Women

          ⇣                                                ⇣                                              ⇣

Visiting a workplace                         Student                                       Working

  • Visiting workplace for domestic purposes
  • For Remuneration/ Voluntary purposes
  • Employed directly/ through an agent
  • Regular/ temporary/ daily wage earner
  • Contract worker/ trainee

What do you mean by ‘Workplace’?

Section 2(o) of the act defines “Workplace”. As per this act, the workplace includes 2 aspects, organized and unorganized sectors. Any location or site visited by the employee during the course of employment, covering the transportation service provided by the employer to the employee for the purpose of travelling from one place to another.

It comprises of all the workplaces situated in India, be it an Indian company or a Foreign company.

Workplaces include:

  1. A private organization, NGO or a provider of any commercial services.
  2. The public organization, comprised of government companies, cooperative societies.
  3. Sports or recreational institutions.
  4. Hospitals.
  5. Dwelling house.

Who is an Employee?

Section 2(f) defines the term “Employee”. Employee includes every female who is working or attaches directly or indirectly with the workplace for the purpose to earn remuneration for the temporary time period or permanent, with or without the knowledge of the principal contractor. It includes co-worker, trainee, apprentice, etc.

Who is an Employer?  

Section 2(g) of the act defines the employer. Any person who is the head of an undertaking organization, institution, unit or office of the appropriate government or who is handling the management or supervision of the workplace. Management includes persons who are responsible for formulating policies. Dwelling houses are houses given for the benefit of employment for the domestic workers.

What are the key elements of workplace sexual harassment?

A female employee at the workplace may face a single or a chain of incidents relating to harassment which will disturb her mental health and make it uncomfortable for her to live. So, these kinds of activities should be examined on a serious note and with a proper processor.

It is very hard to differentiate between decent and weird behaviour at a workplace for the purpose of solving the matter of sexual harassment at workplace. Some of the examples are:

Decent Behaviour   Indecent Behaviour
Feels good Feels Bad
Feel Powerful Feel Powerless
Legal Illegal
Reciprocal One – sided
Happy Sad/Anger
Positive Self Esteem Negative Self Esteem

Impact of inappropriate behaviour

The effect of Sexual Harassment is overreaching and is an abuse of the rights of women. It doesn’t only influence her but directly disturbs the footprint of development of the society.

Have a look below at the list consisting of negative effects of inappropriate behaviour:

  1. Depression
  2. Low concentration
  3. Stress/ Anxiety/ Tension
  4. Unable to make communication in the workplace
  5. Sleeplessness
  6. Issues related to job consequences
  7. Trauma
  8. Eating disorders
  9. Feeling insecure
  10. Betrayed /Lost
  11. Disturbed relations with colleagues who are in relation to the respondent
  12. Trust issues
  13. Feeling boycotted

In D.S. Grewal vs. Vimmi Joshi and Others, 2009 2 SCC 210, the complaint was filed against D.S. Grewal and Hitendra. D.S. Grewal was the head of the School Committee and Hitendra was vice principal of an Army School and Vimmi Joshi was assaulted by Hitendra by a letter. Under this Act, the definition of Sexual Harassment was the same as given under the Vishaka case.

She complained to the Chairman about Hitendra but the complaint was not taken seriously by D.S. Grewal and which resulted in Vimmi Joshi losing her job as Hitendra terminated her. This particular case clearly indicates the failure of the act and its consequences.

Finally, the court decided to direct the High Court to constitute a committee headed by 3 female members to deal with the case. The court imposed the cost on the management team to pay for losses incurred by her.

Forms of sexual harassment

Generally, Harassment at workplace are of types:

  1. Quid pro quo.
  2. Hostile work atmosphere.

Quid pro quo

  1. Indirectly or directly promise to give favourable treatment during the course of employment in return for something?
  2. Expressed or implied threat relating to the current or future employment reputation.

Hostile work atmosphere

  1. Creating an unfriendly or aggressive working atmosphere.
  2. The humiliating act will affect her mental health and safety.

The following scenarios are real-life examples illustrated to create an understanding of the difference between the two forms of sexual harassment at workplace.

Illustration of Quid pro quo

Seema is a hardworking and an active employee at a call centre.

Usually, she works until late at night. One night she was working with her colleague Ajay to complete some of the important work. As it was late, Ajay offered to grab some dinner with her.

After having dinner he proposed to Seema in the office. Seema politely rejected Ajay’s proposal. He threatened to spread rumors about Seema asking for sexual favours. Ajay’s behaviour here was indecent and unwelcomed towards Seema.

Illustration of Hostile work atmosphere

Sree works in a clothing manufacturing industry under the supervision of Mahesh. While working on the workstation, Mahesh tried to touch Sree which made her uncomfortable. Other employees of the industry start gossiping about Mahesh’s behaviour towards Sree.

As you can observe in the above illustration, Mahesh’s physical touch was not appropriate and unaccepted.

Who is Preventive authority?

Employer – Any person who is the head of an undertaking organization, institution, unit or office of the appropriate government or who is handling the management or supervision of the workplace. Management includes a person who is responsible for formulating policies. Dwelling houses are houses given for the benefit of employment for the domestic workers.

Appropriate government Section 2(b) of the act defines Appropriate government. Appropriate government consists of those who have a connection with the workplace in instituting, controlling and holding in part or as a whole financed by the fund of the Central government or State government. If any work is not covered under the above points, the State government will act as an appropriate government for them.

In Medha Kotwal Lele vs. Union of India, 2012 INSC 643, direction was given to all Union and State territories to amend their Civil Services Conduct rule specifically to implement the Vishakha guidelines.

District officer– State government will inform the District Magistrate/ Additional district magistrate/ Collector and appoint as a District officer. The duties and responsibilities of the district officer are to carry out the powers and functions at a district level and keep monitoring the submission made by the Local complaint committee.

Complaints Committee– The Act provides 2 forms of Complaint Committee. “Internal Complaints Committee” and “Local Complaints Committee”. Each Committee should hold 50% of women representation and their tenure should be not more than 3 working years.  

In Vidya Akhave vs. Union of India, W.P. no. 796 of 2105, Bombay High Court observed the essentials of Sexual Harassment at workplace act. It’s the responsibility of an employer to take preventive action regarding the unwelcome or offensive sexual act.

Internal Complaints Committee– It is mandatory for each and every employer to form an ICC with the help of the written order.

Composition of ICC:

Chairperson– Senior most woman employee will be the chairperson of the committee. If not available, then other women from other departments will be nominated from the same workplace.

2 members minimum– Among the rest of the female employees who have legal knowledge or social work experience will be members of the committee.

Members– NGOs or associations dealing with the issues of Sexual harassment.

Where the workplace has offices at different localities, then for each office they have to form a separate ICC.

Local Complaint committee At a district level, a committee is to be constituted know as the Local complaint committee.

Composition of LCC

  1. Chairperson
  2. Member
  3. 2 Members
  4. Ex- officio member

External Member of the Committee– Here, the external member means an expert in the field of Sexual harassment matters. An individual with deep and sound knowledge of the issue and required skills to tackle the legal aspects of the matter will be included in the Complaints committee. It will be beneficial for the Committee to have an expert to solve the issues in the correct direction and within a precise time period. The External member will be paid for their work in dealing with the case.

He/She should have at least 5 years of work experience in the field of Sexual Harassment, women empowerment, and social work. Expertise in subjects like Labour law, Civil matters, and Criminal is also required.

Where can you complain and how?

The complaint should be in a written format including details regarding every particular incident. The following must be included in the complaint:

  1. Name of the respondent
  2. Date of the event
  3. Timing
  4. Relation with the respondent at a workplace and designation

If there are fewer than 10 workers at the workplace, the women employees can complain to the Local Complaint Committee with the help of a Nodal officer. It is the duty of the district officer to appoint a Nodal Officer in every tehsil and taluka level to file complaints. Within 7 days of filing the complaint, it should be forwarded to the required authority and justifiable action should be taken. In addition to this in the workplace, the complaint can be filed under the Internal Complaints Committee.

Process of filing a Complaint– During the process of solving the issue the complaints committee should guarantee confidentiality and to deal with the matter and conduct an inquiry in a fair way.

Major steps to the process of filing a complaint:

Step 1: Receive and Acknowledge the complaint.

Step 2: Converse with the Complainant to settle the dispute in a formal or informal way.

Step 3: Informal Method.

Step 4: Formal Method.

Step 5: Response of Respondent.

Step 6: Preparing of File.

Step 7: Taking into consideration.

Step 8: Framing a schedule for hearing both sides.

Step 9: Compiling all the relevant information.

Step 10: Reasoning

Step 11: Suggestions and Recommendations.

Step 12: Preparing a written Report.

Step 1: A free and fair procedure begins with the Complaints Committee by making a trustworthy and confidential atmosphere throughout the whole procedure.

Receive and Acknowledge the Complaint- The aggrieved party may file a complaint regarding the act of Sexual harassment within the duration of 3 months to the any of the Committee or any authorized organization or Nodal officer appointed by the District officer to deal with the Complaint.

The complaint should be assessed under:

  1. The complaint regarding the sexual harassment at the workplace should fall under Act such as Vishaka guidelines, workplace rule, and service policy, etc.
  2. There should be transparency in the Complaint.
  3. Further extra information will be asked from the Complainant person.
  4. The complainant will be informed in writing form to accept the receipt.The respondent party should conduct any unwelcome or abusive act which falls within the sphere of Sexual harassment at the workplace.
  5. The unwelcomed act directly pointed out to the Complainant.
  6. The Complainant faces the battle of harm.
  7. The negative act was conducted or performed in the area or location of the workplace.

Step 2: The complainant should be informed about the formal or informal method used for solving the dispute.

Step 3: When the Complainant wants to go for the informal method, then it is the duty of the appointed/ designated authority to receive and deal with the complaint and the designated officer acting as a guiding path by educating, counselling and warning the respondent not to conduct negative acts. He tries to solve the dispute between the parties by the method of conciliation.

However, before going for a conciliation method the party must be guided to go for a formal way according to the situation. In no situation will the committee officer guide the aggrieved party to directly approach to the respondent for solving the dispute. The informal method becomes fruitful and it can further be passed on to the conciliator to record the resolution and further action regarding the resolution will be taken by the District office. Now, it’s the duty of the District officer to take required action against the complaint and make sure that no complaint should be taken lightly.

The Complainant can choose to proceed in a formal or informal way.

Step 4: If the aggrieved party or Complainant goes for the formal method then the complaint will be dealt with on a serious note and the committee will respond to the complaint.

Complainant committee must deal with all the conflict of interest related to parties or result of that in a free manner.

Make sure that the person who is dealing with the issue is experienced, and has a wide and sound knowledge about the matter.

Step 5: According to the procedure provided under the Service Rule, the Complainant committee will inform the respondent within 7 days in writing about the complaint and an opportunity will be provided to the respondent to respond back to the complaint within a duration of 10 days.

Step 6: A fair and justified inquiry depends on good preparation. This involves the following stages.

Documentation – Create a separate confidential file that should contain all the relevant required documents.

Review Law and rules– A person who is preparing a file should have clear and wide knowledge about the Act, rules, and policies.

Prepare a list– Mention all the necessary dates and series of events regarding the act that had taken place and names of the witness too. The committee can call any of the witnesses to contribute to the inquiry.

Additional and relevant document– Attach all the relevant and necessary documentation related to the case and the documents presented by both the parties.

Prepare a Checklist– Prepare a checklist to make sure that all the essentials are covered.

Which include- 

  1.     Names of the witnesses and parties being interrogated.
  2.     The required document which needs to be examined.
  3.     Timeline.

A plan needs to be created considering the key elements.

  1. Explaining the complaint and things that need to be clarified.
  2. If there are any violations of any Acts, Rules or Policies?
  3. Deciding a place for conducting the interview and creating a timeline.
  4. What all necessary documentation should be examined and in which order the witnesses will be questioned?
  5. What all types of questions will be included?

Step 7: Taking into consideration.

Temporary action-  When the inquiry is at a pending stage then the complainant can make a call to transfer oneself or the respondent and can go on a leave of 3 months. The complainant can even request to the Complainant committee to prevent the respondent from the workplace. Even without the nonexistence of such a report, the Committee should take necessary action to safeguard the complainant.

Support – Committee should maintain free and clear communication with the parties and should, from time to time, help and guide the complainant related to any matter.

Step 8: Framing a schedule for hearing both the sides or interviewing everyone, one by one. Just to collect all the important and relevant information related to matter and the format of questioning should be decided and the issue should be framed to cross-questioning. The interview should be done in a confidentially and no face-off should be conducted of both parties during the process.

Interviewing a matter of sexual harassment is a delicate and sensitive matter for the aggrieved person. So, the Complainant committee should take proper precautions before conducting the interview. The interviewer will explain the process of an interview to the individual and make sure that the person feels comfortable and safe and it is the duty of the Chairperson of the Committee to look after the process of the interview. At last, the statement which is recorded will be signed by the person.

Step 9: Compiling all the relevant information after the end of this stage which will give an idea about the whole scenario and areas needing more information.

Step 10: Once this process is completed, the Committee will review and give their findings and reasons.

  • To recognize the main issue of the complaint.
  • Determine whether a welcomed or abusive act was involved.
  • Make sure that if any offensive act has been performed falling under an Act or Rule.

Prepare a Sequence list of the events to have a better understanding.

Tally all the statements made by the interviewee and find the difference and contradictory statements related to it.

Step 11: After going through all the information, now they can find whether the complaint is valid or not. Before finalizing it LCC/ ICC a fair opportunity will be given to both the parties to make their opinions or appeal to the committee.  

Further, if the action was not valid no action will be taken place and if it was valid then certain specified action will be taken place which falls within the Rule or policies. Such as Termination from the workplace, written apology letter, hold back the promotion or increment process, counselling.

The committee can also suggest for financial relief deciding the amount by considering Mental trauma, Medical expenses and loss in the income or earning and if the amount is not paid then it can be recovered by Land revenue.

Step 12: Preparing a written Report – The process should be completed within 90 days and it should be further passed on to the employer of the organization and District officer in 10 days. A copy of the report should be provided to each party. Within 60 days the recommendation should be implemented by the District officer or Employer and if any person is not satisfied with the final decision of the Committee can go for an appeal in the authorized court or tribunal.

The report should consist of:

  1. A brief description of the information.
  2. Description of the process opted for solving the dispute.
  3. Suggestions and recommendations have given by the Committee.

In the landmark case of Vishaka & others vs. the State of Rajasthan, A.I.R. 1997 SC 3011 the guidelines are given in the Vishaka case in 1997 Supreme Court passed its judgment on PIL filed by Vishaka and others women’s and this particular case is also known as Bhanwari Devi gangrape case.

Bhanwari Devi was an active social worker and she was trying to stop the marriage of a 1-year-old child but she failed to do that because the marriage had already been commenced by the parents of the child. The latter group of 5 males gang-raped her. After hearing the PIL the apex court decided that there is no such provision is given under Civil or Penal Law to safeguard or protect the women at the workplace from sexual abuse. Under this case, only guidelines were introduced for the protection of women from sexual harassment at the workplace. The whole article consists of detailed information about the guidelines.

It is necessary to implement the Act or Rules concretely because the cases regarding sexual harassment haven’t dropped. 

A former woman staff of the Supreme Court filed a Complaint against Ranjan Gogoi the Chief Justice of India for sexual harassment.

Sexual Harassment cases aren’t rare and never have been. It is tough to see a bright future of a country where cases of sexual harassment at workplaces hinder the well being of the victim. Firm implementations of the Act and stringent actions being taken by the authorities are some of the least actions that can be taken to safeguard workers against sexual predators.

Reference

  1. https://www.iitk.ac.in/wc/data/Handbook%20on%20social%20 Harassment%20of%20Women%20at%20Workplace.pdf
  2. https://www.livelaw.in/sexual-harassment-at-workplace-the-journey-of-the-law/
  3. https://www.thestatesman.com/supplements/law/vishaka-guidelines-know-what-constitutes-sexual-harassment-at-workplace-1502694883.html
  4. https://www.advocatekhoj.com/library/bareacts/sexualharrasment2013/2.php?Title=Sexual%20Harassment%20of%20Women%20at%20Workplace%20(Prevention,%20Prohibition%20and%20Redressal)%20Act,%202013&STitle=Definitions

 

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