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

CONTENTS

1. Harassment.
2. Types of Harassment.
3. Sexual Harassment.
4. Legal definition of sexual Harassment.
5. Land mark cases on sexual harassment.
6. Difference between unwelcome and welcome.
7. Types of sexual harassment.
8. Sexual Harassment affects on workplace.
9. Provision of an innovative redress mechanism.
10. Employer’s Obligation.
11. Who can complain.
12. Procedure of filing the complaint.
13. Inquiry in to the complaint.
14. Inquiry report and final recommendations.
15. Punishment.
16. Compensation.
17. Penalties.
18. Recommendation of the department of social justice & empowerment.
19. Prioritizing prevention.

1.Harassment:-

Harassment is unwanted behavior which you find offensive or which makes you feel intimidated or humiliated. It can happen on its own or alongside other forms of discrimination. Unwanted behavior could be spoken or written, words or abuse, offensive emails, tweets or comments on social networking sites.

2. Types of Harassment:-

1. Discriminatory Harassment-
2. Racial Harassment
3. Gender Harassment
4. Religious Harassment
5. Disability Based Harassment
6. Sexual Orientation Based Harassment
7. Age-Based Harassment
8. Personal Harassment
9. Inappropriate comments
10. Offensive Jokes
11. Personal Humiliation
12. Critical Remarks
13. Ostracizing behaviour
14. Intimidation tactics or any other behaviour that creates an intimidating and offensive work environment for the victim.
15. Physical Harassment:-
16. Direct threats of intent to inflict harm
17. Physical attacks(hitting, shoving, kicking)
18. Threatening behaviour (Shaking fists angrely)
19. Destroying property to intimidate
20. Power Harassment:-
21. Excessive demands that are impossible to meet
22. Demeaning demands far below the employee’s capability.
23. Intrusion into the employee’s personal life.
24. Psychological Harassment
25. Isolating of denying the victim’s presence.
26. Belittling or trivializing the victim’s thoughts.
27. Discrediting or spreading rumors about the victim
28. Opposing or challenging everything the victim says.
29. Cyberbullying
30. Share humiliating things about the victim by mass email or mass chat
31. Spread lies or gossip about the victim on social media
32. Send harassing instant messages or text messages directly to the victim
33. Retaliation
34. Third Party Harassment
35. Verbal Harassment

3. Sexual Harassment:-

Sexual Harass,ment is simply harassment that is sexual in nature and generally includes unwanted sexual advances, conduct or behavior

It is intimidation, bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors.

Examples:- Sharing sexual photos (pornography), posting- sexual posters- sexual comments-jokes-questions, inappropriate sexual touching, inappropriate sexual gesture, and invading personal space in a sexual way.

Other things which constitute sexual harassment:-

1. Physical contact and advances
2. Any demand or request for sexual favours by any person
3. Making sexually coloured remarks by any person
4. Showing or exhibiting pornography and/or sexually explicit material by any means
5. Sending undesirable sexually coloures written messages, text messages, email messages, or any such messages by electronic or other means.
6. Stalking or consistently following aggrieved women in the office precincts and outside.
7. Voyeurism includes overt or tacit observation by the person by any means of the aggrieved women in her private moments.
8. Any conduct whereby the person takes advantage of his position and subjects the aggrieved women to any form of sexual harassment and seeks sexual favours specially while holding out career advancements whether explicitly or implicitly as an incentive or a natural result of submitting to the insinuations/demands of the male person.
9. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
10. Implied or explicit promise of preferential treatment in her career.
11. The implied or explicit threat of detrimental treatment in her career
12. The implied or explicit threat about her present or future career.
13. Interferers with her work or creates an intimidating or offensive or hostile work environment for her
14. Any treatment having a sexual colour or content likely to affect her emotional and/or physical health or safety.

Other types of harassment might take some time and increase severity to create a hostile work environment for the victim, whereas sexual harassment typically brings about discomfort and negatively impact the victim’s life immediately.

4. Legal Definition Of Sexual Harassment:-

Basically, Sexual harassment is a legal term, created for the purpose of ending harassment and discrimination against women in the workplace. Sexual harassment is not only against the women victim may be a man also.

In India

Section 2n:-

According to section 2n

Sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely-

1. Physical contact and advances; or
2. A demand or request for sexual favours;
3. Making sexually coloured remark;or
4. Showing pornography;or
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

5. Land Mark cases on sexual Harassment:-

In 1992 Bhanwari Devi was engaged by the state of Rajesthan as a “ Sathin” to work towards the prevention of the practice of child marriages. During the course of her work, she prevented the marriage of one year old girl in the community. Her work was met with resentment and attracted harassment from men of that community. Bhanwari Devi reported this to local authority but no action was taken. That omission came at great cost- Bhanwari was subsequently gang raped by those very men.

The bhanwari Devi case revealed the ever-present sexual harm to which millions of working women are exposed across the country, every where and everyday irrespective of their location. It also shows the extent to which that harm can escalate if nothing is done to cheek sexually offensive behavior in the workplace.

Based on the facts of Bhawnwari Devi’s case PIL was filed by Vishaka & other women groups against the state of Rajasthan and UOI before Hon’ble Supreme Court.

In the Vishaka &Ors Vs. State of Rajasthan &Ors on 13 August 1997 Hon’ble Supreme Court of India took serious note on sexual harassment on women and issued directions to ensure laws and guidelines for the safety of women at the workplace.

Supreme Court created legally binding guidelines basing it on the right to equality and dignity accorded under the Indian constitution as well as by the UN convention on the elimination of all forms of discrimination against women (CEDAW). It includes:-

. A definition of sexual harassment

. Shifting accountability from individual to institution.

. Prioritizing prevention

. Provision of an innovative redress mechanism.

Further in the matter of Nisha Priya Bhatia vs UOI &Anr CA No. 2365.2020 Hon’ble Supreme Court of India clearly states that “ The approach of law as regards the cases of sexual harassment at work place is not confined to cases of the actual commission of acts of harassment, but also covers situations subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.”

This definition has been further elaborated:-

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:-

. The victim as well as the harasser may be a women or a man.

. The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.

. The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.

. Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

. The harasser’s conduct must be unwelcome.

6) Difference between unwelcome and welcome:-

Unwelcome	Welcome
. Feels bad . one sided . Feels Powerless . Powerbased . Unwanted . Illegal . Invading . Demeaning . Cause anger/sadness . Cause negative self esteem	. Feels good . Reciprocal . In Control . equality . wanted . legal . open . appreciative . Happy . Positive self-esteem

7) Types of sexual harassment:-

There are two legally recognized types of sexual harassment:-

1. Quid Pro Quo Sexual Harassment
2. Hostile environment sexual harassment

Quid Pro Quo Sexual Harassment:- it simply means “this for that”. It is a type of exchange-based sexual harassment. If job benefits are offered to an employee on the condition that they partake in some form of sexual conduct, it’s typically referred to as quid pro quo sexual harassment. In this situation, the harasser, who is often a manager or senior-level employee, may offer something of value for a sexual favor. It can also be form of blackmail.

Hostile environment sexual harassment:- It occurs when the harassment has the effect of unreasonably interfering with work performance or psychological well-being or when intimidating or offensive working conditions are created.

8) Sexual Harassment Affects on workplace:-

Sexual harassment in the workplace is an ongoing risk to the safety of employees and business. The implications of sexualharassment in the workplace have a far-reaching impact on everything from company’s/organization’s/corporation’s/forum’s bottom line, to employee morale and to reputation.

. It impacts employee health

. It impacts employee productivity

. It impacts employee’s mental health

. It impacts hiring and retention.

. It impacts brand.

9) Provision of an innovative redress mechanism:-

A) Constitutional Provisions:.

. Article 14 of the constitution identifies sexual harassment as a violation of a women’s fundamental right to gender.

. Article 15 prohibits discrimination on ground of religion, race, caste, sex or place of birth.

. Article 21 treats sexual harassment as a violation of the right to life and live with dignity.

B) Indian penal Code (IPC):-

. Section 292, 293 and 294 deal with obscenity

. Section 354 deal with assault or criminal force to a women with the intent to outrage her modesty.

. Section 509 deals words, gestures or acts intended to insult the modesty of a women.

10) Employer’s Obligations in POSH Act :-

A) Section 4(1) of the Act makes it mandatory for every employer employing 10 or more workers, to constitute an “Internal Committee” to provide employees with procedures for the resolution, settlement or prosecution of acts of sexual harassment.

B) Section 6 makes it mandatory to district officer to constitute an LCC in every district so as to enable women in the unorganized sector or small establishment to work in an environment free of sexual harassment.The LCC will receive complaint:-

. From women working in an organization having less than 10 workers.

. When the complaint vis against the employer himself.

. From domestic workers.

B) Section 19(a) of the Act holds the employer responsible to provide a safe working environment at workplace which shall include safety from persons coming into contact at the workplace.

C) Section 19(b) requires the employer to display the penal consequences of sexual harassment and order constituting the internal committee, at any conspicuous place in the workplace.

D) Section 19(c) requires the employer to organize workshops and awareness programs at regular intervals for sensitizing employees on the provisions of the act, and organizing orientation programs for the members of internal committee.

E) Section 19(d) requires the employer to provide necessary facilities to the internal committee for dealing with the complaint and conduct enquiry.

F) Section 19(e) requires the employer to assist in securing the attendance of the respondents and witness before the internal committee or the local committee as the case may be.

G) Section 19(f) requires the employers to make available all the information to the internal committee, which may be required in connection with the complaint made.

H) Section 19(h) requires the employer to initiate action against the perpetrator under the IPC or any other law, or if the aggrieved women so desires, where the perpetrator is not an employee, in workplace at which the incident of sexual harassment took place.

I) Section 19(i) requires the employer to treat the sexual harassment as misconduct under the service rules and initiate action for such misconduct.

J) Section 19(j) requires the employer to monitor the timely submission of the reports by the internal committee.

K) Section 21(a) requires the employer to ensure that the internal complaint committee prepares and submits an annual report.

L) Section 22 requires the employer to incorporate the report of the number of cases, if any, and their disposal under the Act, in the annual report of the organization.

11) Who can complain:-

Physical Incapacity . complainant . relatives . friend . Co-worker . officer of NCW/SCW	Mental Incapacity . complainant . relatives . friend . special educator . qualified psychiatrist/psychologist . guardian/authority under whose care the complainant is receiving treatment/care.
Death . Any person with knowledge of the incident with the written consent of her/his legal heir	Unable to file complaint for any other reason . Any person with knowledge of the incident with the written consent.

12) Procedure of filing the complaint:-

Section 9 of the act outlines the procedure of filing the complaint of sexual harassment.

A) Section 9(1) says that any aggrieved women can make a complaint of sexual harassment at the workplace to the ICC, in written form, within a period of 90 days from the date of incident, and in case of a series of incidents, within 3 months from the date of the last incident. However, the time limit for filing up of complaint can be extended for another 3 months if the committee finds that the circumstances prevented the women from filing the complaint within the same period.

B) Section 9(2) makes the provision of filing a complaint by the victim’s legal heir or such other person as may be prescribed, in case for her inability to make a complaint due to physical or mental incapacity or death.

Conciliation:-

C) Section 10 of the act provides the procedure for conciliation. Section 10(1) outlines that the internal complaint committee, before initiating any inquiry, at the request of the aggrieved women, can take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement can be made as a basis for conciliation.

D) Section 10(2), (3) and (4) outlines that after arriving at a settlement, the internal complaint committee will record it and provide a copy of the same to the employer and both the parties, and stop investigation into the case.

13) Inquiry into the complaint:-

section 11 and 12 of the act outline the procedure of conducting enquiries into a complaint, and suggest action to be taken during pendency of inquiry.

14) Inquiry report and making final recommendations:-

section 13 and 14 of the act outlines the procedure of submitting the enquiry report and making final recommendations.

15) Punishment:-

A) If respondent found guilty:- where the ICC arrives at a conclusion that the allegation against the respondent has been proved, it shall recommend to the employer to

. Take action for sexual harassment as a misconduct in accordance with the provisions of the service rules applicable to the respondent

. To deduct, notwithstanding anything in the service rules applicable to the respondent, from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved women or to their legal heirs.

B) If respondent not found guilty:- where the ICC arrives at a conclusion that the allegation against the respondent has not been proved, it shall recommend to the employer that no action is required to be taken in the matter.

C) Punishment for false or malicious complaint and false evidence:- section 14(1) describes the actions to be taken if the complaint is found false/malicious. It says, where the ICC arrives at a conclusion that the allegations against the respondent is malicious or the aggrieved women or any other person making the complaint has made the complaint knowing it to be false, or has produced any forged or misleading document, it may be recommended to the employer to take action against the women or the person who has made the complaint, in accordance to the service rules applicable.

Similarly, if the ICC arrives at a conclusion that during the enquiry any witness has given false evidence or produced any forged or misleading documents, it may be recommended to the employer of the witness witness to take action in accordance with the provisions of the service rules applicable, or where no such service rules exist, then in such manner as may be prescribed.

16) Compensation:-

Section 15 of the Act describe the process of determining the compensation to be paid to an aggrieved women. It says that for the purpose of determining of sums to be paid to the aggrieved women, the ICC shall have regard to

. The mental trauma, pain, suffering, and emotional distress caused to the aggrieved women;

. The loss in the career opportunity due to the incident of sexual harassment;

. Medical expenses incurred by the victim for physical or psychiatric treatment;

. The income and final status of the respondent, and

. Feasibility of such treatment in lumpsum or in installments.

17) Penalties:-

A) penalty for publication or making known contents of complaint and enquiry process:-

. Section 16, prohibits the employee from publishing, communicating or making known to the public, press, media, any information relating to the complaint, details of the aggrieved women, respondent and the witness.

. Section 17 says that if it is found that a person entrusted with the duty to deal with the complaint, enquiry or any recommendations or action to be taken under the provision of the act, contravenes the provisions of section 16 , he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person, or where no such service rules exist, in such manner as may be prescribed.

B) Penalty for non-compliance with provision of the act:-

Section 26 of the Act describes penalties for non compliance with provisions of the act and repetition of the non-compliance. It clearly states that if the employer fails to comply with the provisions of the act, he/she shall be punishable with fine which may extend to Rs. 50,000/- and if any employer, after having been previously convicted of an offence punishable under this act, subsequently commits and is convicted of the same offence, she/he shall be liable to

. Twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provide for the same offence; or

. Cancellation of her/his license, or withdrawal, or non-renewal, or approval, or cancellation of registration, as the case may be, by the governments or local authority required for carrying on this business activity.

18) Department of social justice and Empowerment, issued following recommendations, in order to address discrimination and violence against transgender community, in work places:-

. The private sector needs to sensitize employers and employees on issues of transgender person.

. Anti-discrimination policies must be instituted and meaningfully applied to the processes of hiring, retention, promotion, and employee benefits.

. Workplace sexual harassment policies should be made transgender inclusive.

19) Prioritizing prevention:-

. Adopt a sexual harassment policy

. Communicate the policy and other relevant information alongwith consequences

. Constitute ICC

. Establish complaints channels

. Workshop/awareness program/Training

. Establish sensing mechanism

. Ongoing assessment and a robust reporting process

. Support ICC in enquiry process

. Protect victims