LAW ON WORKPLACE SEXUAL HARASSMENT - SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

LAW ON WORKPLACE SEXUAL HARASSMENT

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

CONSTITUTIONAL PROVISION :

Under Articles 14, 15 and 21 of the Constitution of India, Workplace sexual harassment is a form of gender discrimination which violates a “woman’s fundamental right to equality and right to life”.

WHY THE LAW ON WORKPLACE SEXUAL HARASSMENT FOR WOMEN :

Workplace sexual harassment creates not only an insecure and fearful working environment for women but also inhibits their ability to deliver their work effectively. Workplace Sexual Harassment also adversely affects social and economic growth of women and lays them in bodily and emotive pain.

EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT

1.      The Vishaka Judgement In 1992, Bhanwari Devi, a dalit woman employed with the rural development programme of the Government of Rajasthan, was cruelly gang raped. This incident uncovered the need of legal interferent to protect women from all type of Sexual Harassment. As per the Vishaka judgment, ‘Sexual Harassment’ includes such unwelcome sexually determined behavior (whether directly or by implication) as:

a.      Physical contact and advances

b.      A demand or request for sexual favours;

c.      Sexually coloured remarks;

d.      Showing pornography;

e.      Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

2.      Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007 approved by the Union Cabinet.

3.      The Bill was introduced in the Lok Sabha.

4.      The Bill was amended and re-introduced in the Lok Sabha.

5.      On September 03, 2012, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Lok Sabha

6.      On February 26, 2013, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was passed by the Rajya Sabha.

7.      On April 23, 2013, The Indian Ministry of women and child Development notified December 09, 2013 as the effective date of the Act and the Rules.

KEY PROVISIONS OF THE POSH ACT

Following are the key obligations imposed on Employer :

1.     PROHIBITION & PREVENTION

2.     REDRESS

1.     PROHIBITION & PREVENTION

WHAT IS WORKPLACE SEXUAL HARASSMENT?

“Sexual Harassment” includes anyone or more of the following undesirable acts or behavior (whether directly or by implication), namely:

a)      Physical contact or advances;

b)     A demand or request for sexual favours;

c)      Making sexually coloured remarks;

d)     Showing pornography;

e)     Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature

WHO IS AN EMPLOYER?

An employer refers to :

a)      The head of the department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the Appropriate Government or local authority or such officer specified in this behalf.

b)     Any person (whether contractual or not) responsible for the management, supervision and control of a designated workplace not covered under clause a.

c)      A person or a household who employs or benefits from the employment of domestic worker or women employees.

WHO IS AN APPROPRIATE GOVERNMENT?

As per the Act, Appropriate Government means:

a)      In relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly—

*        By the Central Government or the Union Territory administration, the Central Government;

*        By the State Government, the State Government;

b)     In relation to any workplace not covered under sub-clause (a) and falling within its territory, the State Government.

WHO IS A DISTRICT OFFICER (DO)?

State Governments will notify a District Magistrate/Additional District Magistrate/Collector/Deputy Collector as a District Officer at the local level. The District Officer will be responsible for carrying out the powers and functions under the Act at the district levels (including every block, taluka, tehsil, ward, and municipality).

RESPONSIBILITIES OF DISTRICT AUTHORITIES

Under the law, the employer/DO is obliged to create a workplace free of sexual harassment. It is the responsibility of the Employer/District Officer in general to:

a)      Create and communicate a detailed policy;

b)     Ensure awareness and orientation on the issue;

c)      Constitute Complaints Committee(s) in every workplace and district so that every working woman is provided with a mechanism for redress of her complaint(s);

d)     Ensure Complaints Committees are trained in both skill and capacity;

e)     Prepare an annual report and report to the respective state government;

f)       District Officer will also appoint a nodal officer to receive complaints at the local level.

COMPLAINTS COMMITTEE/S

a)     INTERNAL COMPLAINTS COMMITTEE (ICC)

Every employer is obliged to constitute a written ICC which will be comprising of :

a)      Chairman : Women working at senior level as employee; if not available then nominated from other office/units/ department/ workplace of the same employer

b)     2 Members (minimum) : From amongst employees committed to the cause of women/ having legal knowledge/experience in social work

c)      Member : From amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment

b)     LOCAL COMPLAINTS COMMITTEE (LCC)

The District Officer will constitute an LCC in every district to enable women in the unorganised sector or small establishments to work in an environment free of sexual harassment. The LCC will receive complaints:

? From women working in an organisation having less than 10 workers;

? When the complaint is against the employer himself;

? From domestic workers.

1.      Chairperson : Nominated from amongst the eminent women in the field of social work and committed to the cause of women

2.      Member : Nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district

3.      2 Members : Nominated from amongst such NGO/associations/persons committed to the cause of women or familiar with the issues relating to sexual harassment, provided that:

*        At least one must be a woman

*        At least one must have a background of law or legal knowledge

4.      Ex Officio member : The concerned officer dealing with social welfare or women and child development in the district

c)      EXTERNAL MEMBERS ON THE COMPLAINTS COMMITTEE/S

The Act refers to external members, which generally means persons who have expertise with the issue of sexual harassment. Given the largely intangible nature of workplace sexual harassment, there are a range of complexities involved in responding effectively to workplace sexual harassment complaints. For this reason, external third party/members on the Complaints Committee/s (from civil society or legal background) should possess the following attributes:

a.      Demonstrated knowledge, skill and capacity in dealing with workplace sexual harassment issues/complaints;

b.      Sound grasp and practice of the legal aspects/implications

CRITERIA FOR THE EXTERNAL MEMBER

A ‘person familiar with issues relating to women’ would mean such persons who have expertise in issues related to sexual harassment and may include any of the following:

*        At least 5 years of experience as a social worker, working towards women’s empowerment and in particular, addressing workplace sexual harassment;

*        Familiarity with labour, service, civil or criminal law.

POLICY ON “SEXUAL HARASSMENT AT WORKPLACE”

Employers/District Officers are responsible for complying with prohibition, prevention, and redress of workplace sexual harassment. This implies, need a policy which :

a)      prohibits unwelcome behaviour that creates workplace sexual harassment;

b)     supports prevention of workplace sexual harassment through training, awareness, and sensitization sessions; and

c)      provides a detailed framework for redress.

DISSEMINATION OF INFORMATION AND AWARENESS GENERATION

Employers/ District Officers have a legal responsibility to:

a)      Well convey a policy that prohibits unwelcome behaviour that creates workplace sexual harassment, and offers a detailed structure for prevention, and redress processes.

b)     Carry out awareness and training for all employees.

c)      Create forums for dialogue i.e. Panchayati Raj Institutions, Gram Sabhas, Women’s Groups, Urban Local Bodies or like bodies, as appropriate.

d)     Ensure capacity and skill building of Complaints Committees.

e)     Widely publicize names and contact details of Complaints Committee members.

2.     REDRESS

WHO CAN COMPLAIN AND WHERE?

Generally, where there are less than ten women workers employed, any woman can complain to the Local Complaints Committee (LCC) with the support of the Nodal Officer, when required.

WHO IS NODAL OFFICER AND WHST IS HIS/HER DUTY?

It is the duty of the District Officer to appoint a person as the Nodal Officer in every block, taluka and tehsil in rural or tribal areas and wards or municipalities in the urban areas, to receive the complaints of workplace sexual harassment from women. The Nodal Officer will forward all such complaints within seven days of its receipt to the concerned Complaints Committee for appropriate action. In most other workplaces, a woman employee can make a complaint to the Internal Complaints Committee.

CONTENT OF THE COMPLAINT

The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.

WHAT CAN AN EMPLOYEE/WORKER EXPECT?

When it comes to redress for workplace sexual harassment, employee/worker has a right to expect a trained, skilled and competent Complaints Committee, a time bound process, information confidentiality, assurance of non-retaliation, counselling or other enabling support where needed and assistance if the complainant opts for criminal proceedings.

RIGHTS OF THE COMPLAINANT

Expected an compassionate approach from the Complaints Committee so that she can state her grievance in a fearless environment. Law gives following rights to complainant :  

a.      Keeping her identity confidential throughout the process

b.      Support, in lodging FIR in case she chooses to lodge criminal proceedings

c.      In case of fear of bullying from the respondent, her statement can be recorded in absence of the respondent

d.      Right to appeal, in case, not satisfied with the recommendations/findings of the Complaints Committee

RIGHTS OF THE RESPONDENT

A patient hearing to present his case in a non-biased manner

a.      A copy of the statement along with all the evidence and a list of witnesses submitted by the complainant

b.      Keeping his identity confidential throughout the process

c.      Right to appeal in case not satisfied with the recommendations/findings of the Complaints Committee

KEY RESPONSIBILITIES OF COMPLIN COMMITTEE

To effectively address workplace sexual harassment complaints, a Complaints Committees must first be aware of their key responsibilities, some of which are highlighted below:

a.      Fully ready

b.      Know the Act, Policy and/or relevant Service Rules

c.      Gather and record all relevant data

d.      Ascertain main issues in the complaint

e.      Prepare relevant interview questions

f.       Conduct necessary interviews

g.      Ensure parties are made aware of the process and their rights/responsibilities within it

h.      Analyse information gathered

i.        Prepare the report with findings/recommendations

A Complaints Committee/s is required to be trained in both skill and capacity to carry out a fair and informed inquiry into a complaint of workplace sexual harassment. An absence of such training will lead to unequal and unfair results, which can cost employers, employees, complainants as well as respondents.

EXPECTATED BEHAVIOUR OF COMPLAIN COMMITTEE

1.      Create an enabling meeting environment.

2.      Use body language that communicates complete attention to the parties.

3.      Treat the complainant with respect. 4. Discard pre-determined ideas.

4.      Determine the harm.

5.      Do not Get aggressive.

6.      Do not insist on a graphic description of the sexual harassment. Interrupt.

7.      Discuss the complaint in the presence of the complainant or the respondent.

TIMELINES AS PER THE ACT

?        Submission of Complaint – Within 3 months of the last incident

?        Notice to the Respondent – Within 7 days of receiving copy of the complaint

?        Completion of Inquiry – Within 90 days

?        Submission of Report by ICC/LCC to employer/DO – Within 10 days of completion of the inquiry

?        Implementation of Recommendations – Within 60 days

?        Appeal – Within 90 days of the recommendations