A Study On The Gray Areas of the Sexual Harassment Act

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013: A STUDY ON THE GRAY AREAS OF THE ACT AND REMEDIAL MEASURES

SYNOPSIS

Women‘s rights and well-being are under threat all the time, either within the family or outside its confines. Be it the need for financial stability or independence, the women have made it a point to be part of the structure. Women are now not only facing harassment within the confines of their homes but also on roads and in their workplace. One such harassment is Sexual Harassment, which is the oldest and the most common form of harassment that touches the life of every woman irrespective of age, race, religion, income, class, and culture. Harassment is an instrument used by men to show their dominance over a woman or girl simply because of her gender and her vulnerability. It is only recently recognized that violation of women’s bodies may extend, beyond the brutal instances of rape, to other aspects of men’s conduct towards women. Working women who already have to fight the patriarchal systems of our society are considered easy targets by the male population. Sexual Harassment is all about the power play; the very act puts the women in an inferior position and continues to hold her there. Some women deal with Sexual Harassment strictly, however, there is a large multitude who continues to suffer and try to protect their dignity for fear of discrimination, hostility, ridicule, and stigma.

This paper will be discussing the Sexual Harassment of Women at Workplace Act, some notable case laws, the gray areas of the Act, and the remedial measures which are taken thereby. The paper also takes into account the measures which should be taken to address the issue of harassment at the workplace.

INTRODUCTION

The Sexual Harassment Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. the State of Rajasthan. Article 19(1)(g) of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. The case ruling establishes that sexual harassment violates a woman's rights in the workplace and is thus not just a matter of personal injury. Based on the guidelines of this case, the Sexual Harassment Act was enacted.

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.

MAJOR FEATURES

The Act defines sexual harassment at the workplace and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.

1. The definition of ―aggrieved woman’’, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers, and domestic workers as well.

2. While the ― ‘‘workplace’’in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organizations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.

3. The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.

4. Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.

5. The Complaints Committees have the powers of civil courts for gathering evidence.

6. The Complaints Committees are required to provide for conciliation before initiating an inquiry if requested by the complainant.

7. Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.

OBLIGATIONS OF THE EMPLOYER

The New Law casts certain obligations upon the employer. They are:

1. Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.

2. Treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.

3. Inform all employees of the penal consequences of indulging in acts that may constitute sexual harassment. Penal action shall include termination and reporting the harassment incident to relevant government authorities, and Constitute an Internal Complaints Committee ("ICC"). The ICC should be headed by a woman, and half its members shall be women & include a third-party representative from an NGO or any other agency conversant in dealing with sexual harassment.

4. Organise workshops and awareness programs at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programs for members of the Internal Complaints Committee to monitor the timely submission of reports by the ICC.

5. If an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000. A repetition of the same offense could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.

INTERNAL COMPLAINTS COMMITTEE AND LOCAL 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. The government is in turn 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. The Sexual Harassment Act also sets out the constitution of the committees, processes to be followed for making a complaint, and inquiring into the complaint in a time-bound manner.

INTERIM RELIEFS

The Sexual Harassment Act 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.

AMENDMENTS TO THE INDIAN PENAL CODE, 1860

As a result of the growing importance of the issues relating to sexual harassment and protection of female employees in India, a new Section, Section 354A was added to the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013, which enlists the acts which constitute the offence of sexual harassment and further envisages penalty/punishment for such acts. A man committing an offense under this Section is punishable with imprisonment, the term of which may range between 1 - 3 years or with fine or both. Since the amendment criminalizes all acts of sexual harassment, employers shall be required to report any offenses of sexual harassment to the appropriate authorities.

ROLE OF JUDICIARY (IN INDIA):

Some noteworthy complaints of Sexual Harassment of Women at Workplace that came into the national limelight are:

1. Mrs. Rupan Deol Bajaj & Anr vs. Kanwar Pal Singh Gill & Anr: Rupan Deol Bajaj, an IAS officer in Chandigarh, filed a case against 'super cop' K. P. S. Gill. she lodged a complaint against K.P.S. Gill, who was at that time Director General of Police, Punjab, that he had molested her modesty by "patting" her "posterior" in an intoxicated state, during a party hosted on 18th July, 1988 at the Chandigarh residence of then Punjab Financial Commissioner (Home), S. L. Kapoor. She was at that time working as the Special Secretary, Finance as an I.A.S. officer. In this case, KPS Gill was finally held guilty of the charges. The [High court of Punjab and Haryana, Chandigarh] upheld Gill's conviction under Section 354 (outraging the modesty of a woman) and Section 509 (word, gesture or act intended to insult a lady) for his action against Deol. K.P.S. Gill was sentenced to pay a fine of Rs 200,000, be imprisoned rigorously for 3 months and simply for 2 months, and finally to serve 3 years of probation.

2. Vishaka & others v. State of Rajasthan & Others: In this case, Supreme Court laid down the following guidelines which recognized it not only as a private injury to an individual woman but also as a violation of her fundamental rights. These guidelines are significant because for the first time sexual harassment is identified as a separate category of legally prohibited behaviour. These are subjected to all workplaces until any other legislation is passed by parliament in this regard. The guidelines are as follows:

- It is the duty of every employer to deliver a sense of security to every woman employee.

- Government should make strict laws and regulations to prohibit sexual harassment.

- Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrongdoer.

- The organization should have a well set up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time.

- This complaint mechanism should be in the form of a complaint committee that needs to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems. This complaint committee should also have a third party involvement in the form of an NGO or other body which is familiar with this issue. There is a need of transparency in the functioning of this committee and for that, there is a requirement of submission of annual report to the government.

- Issues relating to sexual harassment should not be a taboo in the workers' meeting and should be discussed positively.

- It is the duty of the organization to aware of the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed.

- The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim if sexual harassment takes place due to the act or omission of the third party.

- These guidelines are not limited only to government employers and should also be followed by employers in private sectors.

3. Medha Kotwal Lele v. Union of India: This case helped the Vishakha’s case to implement the guidelines successfully by issuing notices to all states and the union territories to impart the necessary steps.

4. Tarun Tejpal Case: Tarun Tejpal, an Indian journalist, publisher, novelist, and former editor-in-chief of Tehelka magazine, was accused of sexually assaulting a female colleague in his office. Police in the state of Goa, where the incident took place, filed a First Information Report (FIR) which lists charges, including rape, against him. A non-bailable warrant was issued against him by the Goa Police. He was arrested by Goa police on 30 November 2013 and the matter is still under trial.

GRAY AREAS OF THE ACT OF 2013

Although a much-awaited development and a significant step towards ensuring women a safe and healthy work environment the Act is not free from defects:

a. The Sexual Harassment Act only addresses the issue of protection of women employees and is not gender-neutral.

b. It may become a challenge for employers to constitute an ICC at "all administrative units or offices". The members of the ICC are to be replaced every 3 years. There is also a lack of clarity as to who shall be a chairperson of the ICC in absence of a senior-level female employee. Also, in such cases, the composition of the committee members should ideally have been an odd number in order for the committee to arrive at a decision based on the majority.

c. The ICC also needs to involve a member from "amongst non-governmental organizations or associations committed to the cause of women or who have had experience in social work or have legal knowledge." Employers may not be comfortable with such an external representation, considering the sensitivities surrounding this issue and the need to maintain strict confidentiality.

d. The law casts an obligation upon the employer to address the grievances in respect of sexual harassment at the workplace in a time-bound manner, which in several cases may not be practically possible as the employees or witnesses involved may not easily or readily co-operate.

e. In case the allegation has been proved, the Sexual Harassment Act allows the ICC to recommend to the employer to deduct from the respondent's salary such sums it may consider appropriate to be paid to the aggrieved woman. However, there may need to be made certain corresponding changes to the Payment of Wages Act, 1936 of India, which restricts the nature of deductions that may be made from an employee's salary.

f. The Sexual Harassment Act does not stipulate any monetary liability on the employer in case of harassment on the part of an employee against another female employee.

g. The Act leaves it up to the internal committee to decide a monetary fine to be paid by the perpetrator, depending on their income and financial status. This unjustified and unexplained discriminatory scheme leaves scope for inequality among different sections of society for an act equally heinous in nature, be it committed by anyone.

h. The Act does not cover in its scope and ambit a very important community, that are agricultural workers. The exclusion of armed forces too is an inexplicable gap.

i. It is not clear as to what constitutes sexual harassment of women at the workplace. If sexual harassment takes place inside, say, metro or bus or any other mode of transportation or at someplace outside the office premises, involving two colleagues, can it be said to have constituted in a workplace? It is not clear as to which organization should act on the complaint under the sexual harassment law-the metro authorities or the organization concerned?

j. The law is also silent as to what will happen in a case involving two individuals not connected to a single common workplace. The law also does not take into account all other forms of sexual harassment except those related to a workplace.

SUGGESTIONS TO CURB SEXUAL HARASSMENT

Change in attitude of people is a basic requirement for implementing any law in the society for women. This implementation of laws leads to protection against undesired sexual behaviour. The prevention of sexual harassment should be done at all level of employees and it should be checked that the women employees get a positive environment. The following steps needs to be taken for preventing sexual harassment at the workplace.

1. There should be a well set up complaint channel which is in direct communication with the women employee. The women should not feel obscure in complaining about the problems she is facing during employment at the workplace. The complaint committee should take all such kind of complaint very seriously and appropriate action must be taken within a reasonable time.

2. Women workers should not fear in talking about any harassment related to sex and it is their duty to immediately bring in the notice to the complaint committee about any such act.

3. It is the duty of the complaint committee to keep every complaint confidential.

4. Every organization should conduct sexual harassment awareness training for both the male and female employees. This mutual learning will help in creating an atmosphere of hostility and employees will feel comfortable. This training should also include the impacts of sexual harassment on women.

5. A commitment is required from all the levels of the organization for the positive implementation of the policies and procedures made against sexual harassment.

6. Every employee should understand that it is his legal duty to provide every woman employee a sense of security in the workplace.

7. He should understand that any kind of harassment of his women employee will result in detrimental effects on her health, confidence, and her potential at work which also results in her leaving the job.

8. Women should be motivated against sexual harassment and they should be asked to file a complaint about it if they think that it is harming them in any manner and they should make them realize that their complaints will not be subjected to ridicule or any kind of threat.

9. The employer should always be under a fear of any kind of monetary or reputational harm that can occur if such a kind of activity happens in his company. We also think that there is a need of formulating a separate anti-sexual harassment policy dealing particularly with this issue.

10. The committee should never be biased in dealing with certain individuals of the organization. For example, if the accused is a senior executive or partner he should not be excused just for the sake of his position

CONCLUSION

In most sexual harassment in the workplace cases, the victims are angry, annoyed, and embarrassed by unwanted sexual attention. Some common effects of sexual harassment are decreased work performance, increased absenteeism, breakdown of relationships, loss of job and income, having one’s personal life offered up for public scrutiny (the victim becomes the accused), and their dress, lifestyle, and private life will often come under attack, being objectified and humiliated by scrutiny and gossip, and others. Injuries also include anxiety, tension or anger; ill health, depression, insomnia, headaches, loss of confidence, and motivation. The Act is important because such legislation will have a positive effect on stamping out sexual advancement in the workplace and eventually will create a more safe and healthy working environment. Sexual harassment is assuming new and subtler forms each day, but while most organisations have formalized measures to tackle it, fewer even openly acknowledge its existence. ‘There is no sexual harassment in our office,’ maintain most of the men. This statement, to say the least, is gross under-statement. The trouble is, sexual harassment is as hard to define as it is hard to take and there is virtually no woman who has not experienced it at one stage of her career or the other.