Prevention of sexual harassment at the workplace

1. 1
Umasree Raghunath
&
Kumaran M Sundaram

2. 2

3. 3
Indian Law on Sexual Harassment
The
Constitution of
India
1997:
Vishaka vs.
State of
Rajasthan
TheSexual
Harassment of
Women at
Workplace
(Prevention,
Prohibition and
Redressal) Act, 2013
TheIndian
Penal Code,
1860
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4. Approach to Practice
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The Vishaka Judgment - 1997
Supreme Court acknowledged that:
 Sexual harassment is a human rights violation
 Sexual harassment is a violation of the constitutionally guaranteed
fundamental rights:
 Articles 14 and 15: Right to equality
 Article 21: Right to life - to live with dignity
 Article 19(1)(g) - Right to practice any
profession/trade/occupation/business, i.e., a right to a safe
environment free from harassment
 There is a need for guidelines to fill the legislative vacuum
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5. The Vishaka Judgment - Guidelines
 Employer’s duty to
 Prevent and prohibit acts of sexual harassment Article 21: Right to
life - to live with dignity
 Redress and resolve grievances pertaining to sexual harassment
 The Guidelines = Law, until such time a legislative frame work on the
subject is enacted

6. Howdo we differentiate?
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The Sexual Harassment of Women at Workplace(Prevention, Prohibition and
Redressal) Act, 2013
 Object: Prevention + Protection + Redressal
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7. Talent
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Who is an “Employee”?
Regular, temporary, ad hoc
employees
EMPLOYEE
Directly/through an agent/contractor
With or without
remuneration/voluntary
Express/implied terms of
employment
Probationer/apprentice…
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8. 8
Who is the “Employer”?
Employer
Supervision Control
Management
Person discharging contractual obligations
with respect to the employees
Person/board/committee responsible for
formulation of policies
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9. The “workplace”
Workplace
Government
owned/controlled
establishments
Hospitals/
Nursing
homes
Private sector
organizations
Sports
institutes,
stadiums, training
institutions
Dwelling place in
case of a domestic
worker
AND…
Vocational/
Educational
Institutions
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10. The extended “workplace” …
Anyplace visited by
the employee
 arising out of;
 or duringcourseof;
employment,
includingtransportation provided by
employer.
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11. “Sexual Harassment” under the New Law
A demand or
request for sexual
favors
Sexual
Harassment
Showing
pornography
Unwelcomephysical, verbal or
non-verbal
conduct of sexual nature
Makingsexually
colored remarks
Physical contact
and advances
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12. Circumstances Considered as Sexual Harassment
 Implied/explicit promise of preferential treatment in
employment
 Implied/explicit threat of detrimental treatment in employment
 Implied/explicit threat about present or future employment
status
 Interference with work or creating an intimidating/hostile
environment
 Humiliating treatment, likely to affect health or safety
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13. Internal Complaints Committee
 Mandatory for establishments employing 10 or more
employees
 ICC to be appointed by an order in writing
 At least ½ of the membership of the ICC to be women
 ICC to prepare and submit an annual report to the
employer and the District Officer
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14. Internal Complaints Committee
Presiding Officer – Senior woman employee from the
workplace/other admin units/office/organizations.
2 Members – Committed tothe cause of
women/experience in social work/legal knowledge
One member froman NGO/other women’s
organization/familiar with issues relating tosexual
harassment.
ICC
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15. Local Complaints Committee
 To be set up in every district
 LCC is the grievance redressal body with respect to:
 organizations having less than 10 employees
 organizations that have not set up an ICC
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16. 16
Grievance Redressal Process
IncidentofSexual
Harassment
Complaint made to
ICC/LCC
Settlement
 Not monetary;
 ICCto record
settlement and
forwardtoLCCand
parties
 No further inquiry
INQUIRY
Reasonsfordelaytoberecordedin
writing
Beyond3 months
3 months
Employeerequestsfora
settlement
No
settlement
Employeedoesnot
requestfor
settlement
Beyond3
months
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17. 17
Grievance Redressal Process
Inquiry
Principlesofnatural
justicetobe
followed
Inquiryreporttobe
submittedtothe
Employerand the
parties
Noactionto betaken;
Assessmentofwhether
chargesarefalse/malicious
• ICC/LCC toinquireintowhetherthe
allegationsweremadewitha
maliciousintention.
• Inabilitytosubstantiatethe complaint
orprovideadequate proofdoesn’tnot
amount to malice.
Punishmentasper
servicerules;
Monetarypenalty
payabletothe
aggrievedwoman
Appealto
court/tribunal
Allegationnot
proved
Allegationproved
[within 60days]
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18. 18
Interim Reliefs
Duringthe pendencyof the enquiry,upon written request by theaggrieved
employee:
 Transferthe aggrieved woman or the respondent to anyother workplace
 Grantleave to the aggrieved woman upto a period of threemonths
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Determination of Compensation
 Mental trauma,pain, suffering, emotional distress caused
 Loss in careeropportunity due to the incident
 Medical expenses incurred
 Income/financialstatus of the respondent
 Feasibility of such paymentin lumpsum or ininstallments
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20. ValueBilling
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Employer’s Obligations
 Provide a safe workingenvironment
 Display at the workplace, details of:
 the penal consequences of indulgingin acts of sexual harassment
 composition of the ICC
 the grievance redressal mechanismavailable to aggrieved employees
 Organizeworkshops and awareness programs for sensitizing employees
 Organizing orientation programs for membersof theICC
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21. 21
Employer’s Obligations
 Cooperate and assist duringthe courseof the inquiry
 Treatsexual harassment as misconduct underthe service rules
 Provide assistance to the aggrieved employee, should shechoose to file a police
complaint;
 Initiate action underthe IPCor suchother applicable law
 Ensuretimely submission of reports to the District Officer
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22. Penalties
 Failure to constitute anICC
 Contravention of any provision underthe statute
 Fine of INR50,000(approx. US$1,000)
 Cancellation of business licenses
 All offences underthe statute arenon-cognizable
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23. The Indian Penal Code Provision
Section509 - Word, gesture or act intended to insult themodesty of a woman
Offence:

utteranceofany word,

making any sound or gesture

exhibiting any object
With an intention tointrude upon theprivacy of suchwoman
Punishment:Simple imprisonment up to3 years +fine
Nature of offence: Cognizable
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24. Amendment to the Indian Penal CodeProvision
Section 354A: Sexual harassment andpunishment forsexual harassment
Offence:
 physical contact andadvances involving unwelcome and explicit sexual overtures; or
 a demand orrequest for sexual favors; or
 showing pornographyagainst the willof awoman; or
 making sexually colored remarks
Punishment: Commission of anoffence under (I), (ii) or(iii) punishable with rigorousimprisonment fora
term of up to3 years and/or fine; commission ofoffence under (iv) punishable with imprisonment for a
term up toone year and/or fine
Natureofoffence: Cognizable
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25. Limitations based on our analysis
 No protection for male employees
 No referenceto protection from‘victimization’
 Constitution of ICCfor different offices and External representation within ICC
 Timelines may beunrealistic
 Deterrencedue to employeraction for false ormalicious complaints
 Ability to deduct from harasser’s salary
 Absence of monetary liability onthe part of the employer
 No protection from otherforms of harassment
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26. Thank You
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