Sexual harassment at the workplace

THIS ARTICLE WAS WRITTEN BY AYUSHMAN PATNAIK, A STUDENT OF MAHARAJA AGRASEN INSTITUTE OF MANAGEMENT STUDIES, GGSIPU

With improved access to education and employment, millions of Indian women are entering the country’s workforce today. Many working women face sexual harassment at workplace on daily basis. It is crucial therefore that as a country, we strive to eliminate work-place sexual harassment since women have the right to work in safe and secure environment. Protection of women is necessary for gender equality and development of nation as a whole. -Maneka Gandhi

Sexual harassment of women at workplace is an emerging issue all over the world. The workplace which was previously dominated by the men has been taken over by the women being employed in almost every field of work. As women are being employed in every field, the offences against them are also increasing. Sexual harassment at the workplace is one of the offences against women. Sexual harassment refers to a sexual favour, passing sexually coloured comments, showing pornographic material, any other physical, verbal and non – verbal behaviour of a sexual nature that is unwanted. Women are continuously being exploited at the workplace, but no serious action is being taken against the offender. Various laws and acts has been passed for action against the offenders, but these laws are not effective as it still misses the regulations for strict action.

What is sexual harassment?

Most of the women are still not aware of sexual harassment and that too at the workplace. They are not aware of what constitutes sexual harassment and what are their rights if they become a victim of sexual harassment. Cases of sexual harassment mostly happen with the women of rural area as they are not aware of what is harassment and if they can do something about it.

Section 354A of I.P.C which was added through Criminal Law (Amendment) Act, 2013 states the meaning of sexual harassment-

A man committing any of the following acts-

• physical contact and advances involving unwelcome and explicit sexual overtures; or
• a demand or request for sexual favours; or
• showing pornography against the will of a woman; or
• making sexually coloured remarks, shall be guilty of sexual harassment.[1]

Types of Sexual Harassment at Workplace-  Employee-Employee sexual harassment, gender inequality, Male Sexual Harassment Victims, unsafe workplace environment, Boss-Employee harassment, absurd or Sexual Gestures Harassment, Physical Harassment, Sexual Interest demands, Same-Sex harassment, Stalking Work Harassment, unwanted sexual attention Harassment., Unwelcome touching or grabbing harassment of people, verbal harassment at work etc.[2]

Laws on sexual harassment at the workplace in India-

According to Article 19(1)(g) of the Constitution of India every individual has a right to practice a profession, occupation, trade or business of his/her choice. A woman also has a right to work in any profession or occupation. But this right gets denied due to sexual harassment of women at the workplace, as it forces her to stay away from such work. Sexual harassment of women at the workplace also breaches the right to life and personal liberty as provided under Article 21 that no one should be deprived of his life or personal freedom. As article 21 provides for living a dignified life, a woman cannot live a dignified life or earn a living with dignity if she gets harassed or discriminated at the workplace.

Some of the laws in the Indian Penal Code which provides protection to the women against sexual harassment-

• Section 294 deals with obscene songs and activities in public places.
• Section 354 deals with women being assaulted or exposed to criminal force.
• Section 376 deals with rape.
• Section 510 deals with words or actions that outrage the dignity of a woman.[3]

The landmark case that led to development of laws on sexual harassment at the workplace-

• Vishaka & others Vs. State of Rajasthan [4]

Vishakha and other feminist groups filed Petition against Rajasthan state and India’s central government to implement the fundamental rights of working women under Articles 14, 19, 21 of constitution of India. The petition was filed after Bhanwari Devi; a Rajasthan social worker was brutally gang-raped by Gujjar men in front of her husband as she was trying to stop a child marriage. The trial court acquitted the offender after which all the women social workers gave their support after seeing her commitment. They all filed a petition under the name ‘Vishakha’ in India’s Supreme Court. The apex court was asked to make guidelines to stop workplace sexual harassment.

Vishaka guidelines–

• Employer or other persons responsible are supposed to prevent such instances from happening. The company must consist of a system to include conciliatory and prosecutorial services in case these events happen.
• Whether in the public or private sector, all workers in control of the work place should take reasonable measures to prevent sexual harassment. They should follow the following steps:
• The meaning of sexual harassment must be properly explained at the place of work should be informed, released and distributed through appropriate methods.
• Government rules / regulations. & Public – sector departments must include norms / rules which forbids sexual harassment.
• The Private Employer Standing Orders formed under the Industrial Employment (Standing Orders) Act, 1946 must include regulations to restrict sexual harassment.
• Effective working conditions must be provided for work, leisure activities, health and wellbeing to make sure there’s no hostile workplace atmosphere for women and that no woman should have appropriate reasons to feel that she is discriminated in relation with her job.
• Where such behaviour applies to a particular offence under the I.P.C or any other legislation, the employer shall, by making complaints to the proper authorities, undertake proper measures in compliance with the law.
• Where such conduct amounts to an employment misconduct as defined by the service laws applicable, suitable disciplinary action must be taken by the employer according to the rules.
• Where certain conduct leads to misconduct in employment as specified by the applicable rules of service, the employer may take disciplinary actions in compliance with those rules.
• Regardless of the fact that the specific act constitutes an offence under IPC or any other law, the company should have a redressal mechanism for dealing with such instances.
• A woman should head the Complaint Committee and half of the members should be a woman. The committee must therefore include Organisation’s or one who is familiar with such topics for further support. The committee must be effective in ensuring victim support and sufficient facilities for counselling.
• Employees must be encouraged to raise sexual harassment problems at an employee meeting as well as other appropriate workshop and it should be discussed expressly in Employer-Employee Meetings.

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

• This act came into power after the passing of the bill in 2013 and applies to the whole of India. This act is also known as the POSH act which defines who is an aggrieved woman in relation to the workplace- An ‘aggrieved woman’ is a woman of any age, whether working or not, who claims to have been a victim to an act of sexual harassment.
• The POSH act pertains to Indian regulated as well as unorganized industries. It extends, inter alia, to government organizations, private and public sector organisations, non-governmental organizations, commercial, technical, educational, entertainment, industrial, financial, hospital and nursing homes, educational institutions, sports institutions.
• The guidelines that were outlined were concerned to traditional offices only. However, the POSH act widens the meaning of the workplace. Under the POSH Act, ‘workplace’ means any area the employee visits that occurs from or during the period of employment, including transportation given by the employer to and from the workplace.
• The POSH Act allows an employer to create a ‘Internal Complaints Committee’ (ICC) for each workplace or branch of the company with 10 or more workers to listen and address sexual harassment complaints.
• A sexual harassment grievance may be filed within a 3-month timeframe. This can be advanced to another 3 months if the woman can prove that severe conditions restricted her to do the same. The Act also has a conciliation clause.

Relevant case laws-

D.S. Grewal v. Vimi Joshi[5]

Vimmi Joshi was the head of a public school saying her supervisor had given her letters of love and behaved inappropriately to her. She managed to bring a grievance to the School management board and the complaint was asked to be brought in writing. The Committee subsequently got 2 anonymous complaints toward Joshi after which she was terminated. The High Court observed that this was a valid case of sexual harassment and instructed them to take disciplinary measures. The Supreme Court overturned and annulled the decision of the High Court because the Supreme Court had previously established guidelines for complaints of sexual harassment in Vishaka v. Rajasthan State; a complaint committee would have to be set up further to investigate the complaint. The court ruled that they could not have observed that this was a clear-cut case of sexual harassment because the High Court had not looked into the issue completely. The High Court was ordered to select a three-member panel to hear the case, that must be presided by a female.

The court ruled the same because a complaint committee must be formed to hear the sexual harassment matter at the workplace. However, in this case no committee was formed and thus Supreme court annulled the decision given by high court.

Shanta Kumar V. Council of Scientific and Industrial Research (CSIR) & Ors[6]

In this case, the respondent entered while the petitioner was working in the laboratory stopped all the machines and pulled her out from the laboratory and locked her up. The petitioner claimed that the respondent had been using derogatory terms. The committee reviewed the grievance, concluding that the context of the complaint was not sexual but of an administrative and managerial essence. The report was acknowledged and under issue by the Disciplinary Authority. Shanta Kumar lodged a written petition before the Delhi High Court questioning the Complaint Committee’s actions and the Disciplinary Authority ‘s order absolving the Respondent for the sexual assault charges brought towards him.

The Court observed that any physical contact or advance would be sexual harassment given it is done in the sense of sexually suggestive conduct. A simple inadvertent touch, even if unwanted will not result in sexual misconduct. And if it was offensive, the instance would not count as sexual assault in the specific matter.

Ashok Kumar Singh vs University of Delhi & Ors[7]

The plaintiff had challenged 3 reports presented by the respondent’s Internal Complaints Committee (ICC) by this written petition according to Article 226 of the Constitution of India i.e. Dyal Singh College. The Sexual Harassment of Women at Workplace Act, 2013, established the ICC. The appellant had questioned the findings on the grounds, inter alia, that the reports only gave a prima facie inference that the case had value without explicitly documenting any clear conclusion or maintaining that the appellant ‘s claim had been proven. The Petitioner further claimed that a chance to cross-examine the witness testimony was unlawfully denied to the appellant.

In this case, the Delhi High Court set out specific instructions for the witnesses’ cross-examination and ordered specific reports for each complainant. The Court also instructed that, in the event of any vacancy in the ICC’s Constitution, the same was required to be filed within one week from the date it arose. It also instructed ICC to conclude the inquiry proceedings within a minimum duration of three months.

Conclusion

Sexual harassment is making the workplace an evil place for all females who are willing to work. If a woman does not feel comfortable at the workplace, then the employer is the person to blame for not providing a positive environment at the workplace. The government must implement special laws that deal with these issues. The government should recognize that female worker are also part of the country’s workforce and that the government must provide them with workplace safety. It is crucial to raise employers and employees’ awareness of the prevalence of types of workplace harassment, preventive methods and the legislative structure for combating and preventing sexual harassment.

[1] Criminal Law (Amendment) Act, 2013

[2] https://www.wmlawyers.com/oakland-sexual-harassment-attorneys/types/

j[3] Indian Penal Code, 1986

[4] (1997) 6 SCC 241

[5] (2009) 2 SCC 210

[6] W.P.(C)8149/2010

[7] (2017 LLR 1014)