Sexual Harassment in India
India finally enacted its law on prevention of sexual harassment against female employees at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way of publication in the Gazette of India.
What is the objective of the New Law?
The New Law has been enacted with the objective of providing protection to women against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment. Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India ("Constitution") and her right to life and to live with dignity as per Article 21 of the Constitution. It is also considered as a violation of a right to practice or to carry out any occupation, trade or business under Article 19(1) (g) of the Constitution, which includes a right to a safe environment free from harassment.
What are Form of sexual harassment at work?
- Circumstances of promise (implied or explicit) of preferential treatment in employment;
- Threat of detrimental treatment in employment;
- Threat about employment (present or future);
- Creating an intimidating or offensive or hostile work environment, or interference with work for the above;
- Humiliating treatment that may affect the lady employee's health or safety
- Unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances,
- Demand or request for sexual favours, sexually coloured remarks, showing
- Any other unwelcome physical verbal or non-verbal conduct of sexual nature
How is sexual harassment defined under the Sexual Harassment Act?
The definition of sexual harassment in the Sexual Harassment Act is in line with the Supreme Court's definition in the Vishaka Judgment and includes any unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature.
What is scope of the New Law?
Sexual Harassment Act is very wide and is applicable to the organized sector as well as the unorganized sector.
What is the definition of 'workplace' under the Act?
The Act applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainmental, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals.
Workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment - including transportation provided by the employer for the purpose of commuting to and from the place of employment.
What is the definition of 'employee' under the Sexual Harassment Act?
The New Law applies to any woman falling under the definition of 'employee' under the Sexual Harassment Act and encompasses regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, domestic help, contract labour, coworkers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
What are the obligations of the employer?
- provide a safe working environment
- display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee
- organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee
- treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.
What is the process for Complaint and Inquiry?
- Internal Complaints Committee
The Sexual Harassment Act requires an employer to set up an 'Internal Complaints Committee' ("ICC") at each office or branch, of an organization employing at least 10 employees.
- Local Complaints Committees
The government is required to set up a 'Local Complaints Committees' ("LCC") at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer.
- Interim Reliefs
The New Law empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.
Process for Complaint and Inquiry
- Any aggrieved employee within 3 months from date of the sexual harassment incident should report the same, in writing, to the ICC or LCC. The law allows female employees to request for conciliation to the ICC or LCC in order to settle the matter although a monetary settlement should not be made as a basis of conciliation
- If the conciliation proceedings fail or if no conciliation was requested, the ICC or LCC shall conduct an inquiry and complete the same with 90 days from receipt of the complaint.
- Within 10 days from completion of the inquiry the ICC or LCC has to publish report with its recommendations.
- The employer shall act on the recommendations of the report within 60 days of publication of the report. There are three possible outcomes:
a. The allegation levelled is proved, and action for misconduct is taken as provided under the service rules of the organisation or if the harassment is grave, the organisation is bound to inform the relevant authorities to institute penal action under the Indian Penal Code, 1860, which has provided special provisions for crimes relating to sexual harassment.
b. The allegation levelled is not proved due to the inability of the complainant to prove the facts and in the absence of malicious intent; the organisation shall decide not to take any action.
c. The allegation levelled is not proved and the allegation was made with a “false and malicious” intent, action can be against the complainant for misconduct under the service rules.
- An appeal to a court or tribunal is available to the complainant and the alleged against the recommendations of the ICC or LCC. The appeal has to be made within 90 days from the date of the recommendation.