SEXUAL HARASSMENT AT WORKPLACE?

Introduction

Sexual harassment in the workplace is not only a violation of human rights but also a significant barrier to gender equality and women’s empowerment. A safe workplace is a fundamental right for every woman, enshrined in the Indian Constitution under Articles 14, 15, and 21, which guarantee the right to equality, non-discrimination, and personal liberty. Despite these legal protections, sexual harassment continues to be a pervasive issue in workplaces across India and the world. This article delves into the evolution of legal frameworks addressing workplace sexual harassment, the responsibilities of employers under the law, and the practical steps that organizations can take to ensure a safe working environment.

 

Understanding Sexual Harassment at the Workplace

Sexual harassment at the workplace encompasses a range of unwelcome behaviours of a sexual nature. These behaviours can be physical, verbal, or non-verbal, and they create an intimidating, hostile, abusive, or offensive work environment. Common examples include:

1. Physical contact and advances: Unwanted touching, hugging, or kissing.
2. Requests for sexual favours: Implied or explicit requests for sexual favours in exchange for job benefits.
3. Sexually coloured remarks: Comments or jokes that are sexual and uncomfortable for the recipient.
4. Showing pornography: Displaying or sharing pornographic material.
5. Unwelcome conduct: Any other conduct of a sexual nature that is not invited or welcomed by the recipient.

The impact of such behaviours can be devastating, affecting the victim’s mental and physical well-being, work performance, and career progression. It is, therefore, imperative for organizations to establish robust mechanisms to prevent and address sexual harassment.

 

Legal Framework: The Evolution of Protections

Early International Influences

The global recognition of the need to combat gender-based discrimination, including sexual harassment, began to take shape with the adoption of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by the UN General Assembly in 1979. India, as a signatory since 1980 and a ratifying country since 1993, committed to incorporating the principles of gender equality and non-discrimination into its national laws. However, the real impetus for developing a specific legal framework addressing workplace sexual harassment came from within India.

 

The Vishakha Guidelines (1997)

The landmark judgment in Vishakha and Others vs The State of Rajasthan (1997) was a turning point in the legal landscape regarding sexual harassment in India. The case was filed as a Public Interest Litigation (PIL) by women’s rights groups in response to the gang-rape of Bhanwari Devi, a social worker in Rajasthan who was attacked while trying to prevent a child marriage. Bhanwari Devi’s case highlighted the systemic failure to protect women from sexual violence, especially in the workplace.

 

The Supreme Court of India, recognizing the absence of specific legislation to address sexual harassment at work, laid down what became known as the Vishakha Guidelines. These guidelines mandated that every employer must provide a mechanism for redressal of sexual harassment complaints and take preventive measures to ensure a safe working environment. The Vishakha Guidelines served as the law of the land until the enactment of specific legislation in 2013.

 

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act, is the culmination of decades of advocacy and legal evolution. The Act provides a comprehensive framework for preventing and addressing sexual harassment in the workplace. Key features of the Act include:

• Definition of Sexual Harassment: The Act provides a broad definition of sexual harassment, encompassing not just physical acts but also verbal and non-verbal conduct of a sexual nature.
• Scope of the Workplace: The definition of “workplace” under the Act is expansive, covering not just the physical office space but also any place visited by the employee in connection with work, including transportation provided by the employer.
• Obligations of Employers: Employers are required to take proactive steps to prevent sexual harassment, including the establishment of an Internal Complaints Committee (ICC) in workplaces with ten or more employees.
• Penalties for Non-Compliance: Failure to comply with the provisions of the Act, such as not constituting an ICC or not addressing complaints appropriately, can result in fines, cancellation of business licenses, and other penalties.

 

The Case of Bhanwari Devi: A Catalyst for Change

The story of Bhanwari Devi is symbolic of the struggles faced by women in India when confronting sexual violence. As a saathin (friend) for the Rajasthan Government’s Women’s Development Programme, Bhanwari Devi’s work involved going door-to-door in the village, campaigning against social ills – she would tell women about hygiene, family planning, and the benefits of sending their daughters to school, and she would discourage female foeticide, infanticide, dowry and child marriage. Her efforts were met with violent retaliation when she was gang-raped by members of the affluent and dominant Gujjar community in her village in 1992.

 

The subsequent trial and acquittal of the accused underscored the failings of the legal system to protect women and deliver justice. However, the outrage generated by the case stimulated women’s rights activists, leading to the filing of the Vishakha PIL. The resulting Supreme Court judgment not only provided justice for Bhanwari Devi but also laid the foundation for legal protections for all working women in India.

 

The POSH Act: Implementation and Challenges

Coverage and Applicability

The POSH Act applies to all women working in both the public and private sectors, with a few exceptions such as daily wage workers in the agricultural sector and women in the defence forces. The Act stipulates that while the victim must be a woman, the harasser can be of any gender, including men, women, and third-gender individuals. This inclusive approach recognizes the complex dynamics of power and vulnerability in the workplace.

 

Internal and Local Complaints Committees

One of the critical features of the POSH Act is the establishment of Internal Complaints Committees (ICC) and Local Complaints Committees (LCC). 

• Internal Complaints Committee (ICC): Organizations with ten or more employees are required to constitute an ICC at each office or branch. The ICC is responsible for receiving and addressing complaints of sexual harassment. It must be composed of a minimum of four members, with at least one external member from an NGO or other body familiar with issues related to sexual harassment.
• Local Complaints Committee (LCC): In workplaces with fewer than ten employees, or in cases where the complaint is against the employer, the Act mandates the establishment of an LCC by the District Officer. This ensures that even employees in smaller organizations have access to a formal grievance redressal mechanism.

 

Consequences of Non-Compliance

Non-compliance with the POSH Act can have severe consequences for employers. The Act provides for penalties including a fine of up to Rs. 50,000 for failure to constitute an ICC, failure to act upon the recommendations of the committee, or failure to file an annual report on the status of sexual harassment complaints. Repeated violations can lead to higher penalties and even the cancellation of the business license.

 

Beyond legal penalties, non-compliance can also severely damage an organization’s reputation. In an era where corporate social responsibility and ethical practices are increasingly valued, failure to provide a safe workplace can lead to public backlash, loss of business, and diminished employee morale.

 

Best Practices for Employers

To ensure compliance with the POSH Act and foster a culture of respect and safety, employers should take the following steps:

1. Formation of a Comprehensive Sexual Harassment Policy

Every organization should develop a comprehensive sexual harassment policy tailored to its specific work environment. This policy should clearly define what constitutes sexual harassment, outline the procedures for reporting and addressing complaints, and specify the roles and responsibilities of the ICC. Employers must avoid the temptation to copy policies from other organizations or delegate this task to inexperienced staff. A well-crafted policy is crucial for preventing harassment and protecting both employees and the organization.

1. Establishment of the Internal Complaints Committee (ICC)

The formation of an ICC is not just a legal requirement but also a critical component of an organization’s commitment to a safe workplace. Employers must ensure that the ICC is composed of qualified and sensitive individuals who can handle complaints with the necessary confidentiality, fairness, and empathy. The committee should be trained regularly to stay updated on the legal aspects and best practices related to sexual harassment.

1. Conducting Training and Awareness Programs

Training and awareness programs are essential for creating a workplace culture that does not tolerate sexual harassment. These programs should be conducted regularly and include all employees, from top management to entry-level staff. Training should cover the organization’s sexual harassment policy, the role of the ICC, and the process for filing complaints. Real-life case studies and role-playing exercises can help participants understand the complexities of handling sexual harassment cases.

1. Handling Complaints and Legal Proceedings

In cases where sexual harassment complaints arise, the ICC must act swiftly and judiciously. The process should be transparent, ensuring that both the complainant and the respondent are treated fairly. In situations where the ICC’s findings lead to disciplinary action, or where the case escalates to legal proceedings, organizations may need to seek legal assistance to ensure compliance with the law and protect their interests.

 

What Falcon Legal Does: 

At Falcon Legal, we are committed to helping organizations comply with the POSH Act and create safe, respectful workplaces. Our services include:

• Developing Customized Sexual Harassment Policies: Each company operates under unique conditions, including different work models, employee shifts, and interaction with third parties. Sexual harassment policies must be tailored to reflect these specifics rather than being copied from other organizations. We advise against delegating this task to inexperienced personnel, as incorrect or insufficient information could have serious legal repercussions. We work with organizations to draft comprehensive, legally sound sexual harassment policies tailored to their specific needs and work environment.   
•  Establishing and Training Internal Complaints Committees: We assist in setting up ICCs and provide training to committee members to ensure they are equipped to handle complaints effectively. For companies with more than ten employees, it is mandatory to form an Internal Complaint Committee (ICC). Each branch of a company must have its own ICC, which must adhere to specific norms regarding its composition and functions. We help in setting up these committees, ensuring they meet legal requirements and operate effectively.
• Conducting Training Workshops: Real-time training is essential for managing sexual harassment cases effectively. We offer specialized training workshops for corporate heads, HR personnel, and other key staff members, equipping them with the skills needed to handle sensitive situations and make informed decisions. These workshops include real-time case studies and are conducted in various formats to suit organizational needs.
• Handling Sexual Harassment Cases and Legal Proceedings: We provide legal support in cases where the Internal Complaint Committee fails to deliver justice or where immediate legal intervention is required. Our expertise extends to representing companies or victims in court, ensuring that legal proceedings are handled with the utmost competence. Given the complexity of sexual harassment cases, our experience helps in avoiding common pitfalls and ensuring a fair legal process.

 

Conclusion

Sexual harassment at the workplace undermines the principles of equality, respect, and dignity that are crucial for a healthy working environment. The introduction of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, represents a significant step forward in protecting women’s rights at work. It builds on the foundation laid by the Vishakha Guidelines and aligns with international standards for addressing workplace harassment.

 

Effective implementation of the POSH Act requires diligent formation and operation of Internal and Local Complaints Committees, adherence to legal requirements, and continuous training and education. Organizations must recognize the importance of these measures not only to comply with the law but also to foster a workplace culture that values and upholds the rights and dignity of all employees. Falcon Legal (India) is committed to assisting organizations in navigating these legal requirements and ensuring that their workplaces remain safe, respectful, and compliant with the law.