It is common knowledge that most organisations -- small and big -- in India, don't have a strong, reassuring system to address complaints of sexual harassment in place. Recently, similar allegations against a popular start-up, revealed that though we have a legal provision to battle workplace harassment, it is neither understood, not implemented in organisations the way it should be.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Act. 2013) is designed to help offices build harassment-free workplaces and also help women seek proper redressal when faced with harassment. The act covers all women in both organised and unorganised sectors, even those who are not employees but just visiting a workplace.
The act covers all women in both organised and unorganised sectors, including those who are not employees but visitors in a workplace.
In January, a survey of 6,047 people conducted by the Indian National Bar Association revealed that 38% of women had faced sexual harassment at their workplace, and 68.09 of these had refrained from lodging a complaint due to fear and embarrassment. About 65.2% of the surveyors said that their company did not follow the provisions of the Sexual Harassment of Women at Workplace Act 2013. At least 46.7% of the respondents said that the members of the internal complaints committee at their workplace were not aware of the legal provisions under the 2013 Act.
"Workplaces need to invest in education (which is part of preventive legal compliance)," Gurgaon-based advocate Naina Kapur told HuffPost India. Kapur framed the landmark Vishakha Directions that preceded the 2013 Act, which defined workplace harassment as a violation of Constitutional rights and not just a criminal offense.
"Workplace sexual harassment is a legal issue, not a moral one. It requires a cultural shift in perception and informed subject matter expertise to orient employees," Kapur added. "Most workplace sexual harassment is of a non physical nature. That has to understood first."
About 65.2% of the surveyors said that their company did not follow the provisions of the Sexual Harassment of Women at Workplace Act 2013.
According to a FICCI study from 2015, 35 per cent of Indian companies and 25 per cent of MNCs do not comply with the Sexual Harassment Act, 2013. "There is also a tendency for NGOs, places relying on tele-commuting, start-ups and even loosely organized set-ups (like a sole proprietor and staff) and what fall under the ambit of "shops and establishments" to wind up not having compliance," says Kirthi Jayakumar, founder and CEO of the Red Elephant Foundation, a Chennai-based organisation that conducts workshops and and helps constitute committees on workplace sexual harassment awareness.
"An employee is entitled to a well communicated policy on workplace sexual harassment which is an expression of the Company's position on the issue as well as its prevention and redressal processes," Kapur said. "Workplaces have a legal obligation to provide orientation to ALL workplace employees on the issue."
Here's a step-by-step guide to knowing what constitutes harassment according to law, as well as the legal recourse.
1. Learn to recognise what constitutes workplace sexual harassment.
Workplace sexual harassment includes all unwelcome or unwanted acts such as physical contact or advances, demand or request for sexual favours, showing pornography, making sexually coloured remarks, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
2. At the time of joining, employees should demand to read and review the company's policy on workplace sexual harassment. Most women and men don't, but they should make it a point to ask the HR of the company the following:
a) Does the employer have a policy against workplace sexual harassment? What does it say?
The Act requires employers to have a policy that prohibits, prevents and redresses workplace sexual harassment. As part of this employers have a legal responsibility to do the following:
i) Communicate a policy that prohibits unwelcome behaviour and has a detailed framework for prevention and redressal.
ii) Carry out awareness and orientation for all employees.
iii) Create forums for dialogue
iv) Ensure that the complaints committees is trained in skill and capacity.
v) Publicise the names and contact details of internal complaint committee members.
b) Does the employer have an internal complaints committee in place?
The Act requires every organisation with more than 10 employees to constitute an Internal Complaints Committee through a written order. If the employer has more than one office, each branch is required to have an ICC. At least 50 per cent of the committee's four members should comprise of women.
c) Which NGO is a member? What are the credentials of the members of the committee?
The ICC should be headed by a senior female employee, and in the absence of a senior woman employee in the office, she should be chosen from another office. It should include two other employees who have legal knowledge and experience in social work, as well an external third-party member from an NGO with at least five years of experience working on women's issues or someone familiar with workplace sexual harassment issues and their legal aspects. The external member has to be paid for their services.
"In my view, the third party member on the committee, needs to effectively translate into a subject matter expert with a sound understanding of the law and Constitutional provisions," Kapur adds. "Often a workplace will nominate a person/organisation who works on women's issues. Such casual nominations fail to recognise the skill required and complexity of investigating workplace sexual harassment."
Often a workplace will nominate a person/organisatoon who works on women's issues. Such casual nominations fail to recognise the skill required and complexity of investigating workplace sexual harassment."
e) Have there been any prior instances of harassment, and if so, what was done in those instances to address the issue?
"Investigating a complaint of workplace sexual harassment requires skill in order to ensure a fair and informed decision-making process is in place. ICCs are required to investigate the matter within 90 days and to arrive at findings and recommendations which the employer must then implement," Kapur added.
3. If an employer does not constitute an internal complaints committee, fails to act upon the recommendations of the complaints committee, fails to file an annual report to the District Officer or contravenes the Act, it can be be penalised a fine of up to Rs 50,000 the first time. Repeated breach under the Act can lead to higher punishment and even cancellation or non-renewal of the business license.
4. If an incident of sexual harassment occurs at a workplace that does not have an internal complaints committee, then a complaint can also be filed at the courts. The complainant can either a file a criminal case under Section 254 of the IPC or file a civil case, where she can claim damages and compensation among other remedies such as an injunction.
If an employer does not constitute an Internal Complaints Committee, fails to act upon the recommendations of the Complaints Committee, fails to file an annual report to the District Officer or contravenes the Act, it can be be penalised a fine of up to Rs 50,000 the first time.
5. In case the establishment has under 10 employees, there is an option to go to the local complaints committee. Every District Officer is required to constitute a local complaints committee at each district and if required, at each block.
6. The complaint needs to be made in writing, within three months of the incident. If the woman is unable to make the complaint, any relative, acquaintance or friend can make the complaint with her permission.
7. The inquiry process has to be kept anonymous and should be completed within 90 days of the complaint being filed. The employer or the district officer has to act on the recommendation of the report within 60 days. If any person is not satisfied with the recommendations, they can appeal in an appropriate court or tribunal.
If an incident of sexual harassment occurs at a workplace that does not have an internal complaints committee, then a complaint can also be filed at the courts.
8. The employee also has the option of filing a criminal complaint against the offender in court, along with approaching the internal complaints committee at their workplace.
9. While the inquiry process is kept confidential, its effectiveness in checking victim-blaming and retaliatory action against the complainant depends on the employer. "There is no focus on the ethos that informs workplace sexual harassment, of patriarchy, violence and harassment that keeps a culture of silence alive," Red Elephant's Jayakumar adds.
Read the entire provisions of the Sexual Harassment of Women at Workplace Act here.