Overview of Sexual Harassment at Workplace

It is very common nowadays to hear cases of sexual harassment at workplaces in the world whether the nation is a developed one or is at a developing stage.  Sexual harassment is an inappropriate behaviour against women mostly as they are one of the most vulnerable parts of society from a long time. It has been found that some men also face the problem of sexual harassment. A nation having stringent and well-defined statutes and regulations helps in providing relief to the victims of harassment in the workplace. Thus, it is a serious issue in the workplace and needs to be monitored correctly and strictly.

Sexual harassment is a violation of basic human rights such as the right to equality and the right to life with dignity. In India, after several reported acts of sexual harassment, the legislature enacted a law named Prevention of Sexual Harassment at Workplace Act, 2013 after considering the provisions mentioned under the international convention for the protection of women against the discrimination being faced by females. It is mandatory for the organizations to establish an Internal Complaint Committee (ICC) so that if any female is aggrieved from any sexual harassment, then she can make a complaint to such committee and seek redressal. When an organization has no established ICC, she can approach a Local Complaint Committee (LCC) to make such a complaint.

A woman is said to be aggrieved when she alleges that she has suffered any sexual harassment at the workplace, irrespective of the age of the woman and employment by the respondent. The definition of an aggrieved woman has been stated under Section 2 (a) of the Sexual Harassment at Workplace Act, 2013. The Act provides relief to woman at the workplace whether she is employed in the organization or not.

Sexual harassment has been defined under the Act as an unwelcomed behavior or an action, directly or indirectly, in a workplace, inclusive of:

1. Any physical contact and advances; or
2. A demand asking or request for sexual favors; or
3. Making any sexually colored remarks; or
4. Showing pornography to a female; or
5. Any other unwelcome physical, verbal, or non-verbal behavior of sexual nature.

For example: A manager’s assistant makes sexually colored remarks to a newly appointed female in the workplace. She has the right to file a complaint against the assistant for harassment to the committee under the provisions of the Act.

A workplace includes most public places like hospitals, government departments, etc and private places such as private organizations and residential places for domestic workers. A domestic worker working in a household also has the right to file a complaint and seek protection under the Act for any harassment being faced by her while working.

Who can file a complaint under the Act?

As per Section 9 of the Act, the below-mentioned list contains people who have the right to file a complaint in writing to the Internal Complaint Committee under the Act.

• A woman who is an aggrieved woman
• An aggrieved woman with the help of a member of the ICC

If a situation arises where the woman aggrieved is unable to file a complaint due to any mental or physical incapability, or death, the below-stated people can file a complaint on behalf of the aggrieved.

• Any legal heir of the aggrieved woman.
• A person has been prescribed to file a complaint on her behalf.

There are certain rules mentioned in the Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Rules, 2013. As per Rule 6:

• If a woman is unable to file a complaint herself due to any physical incapability, then the below-stated people can file a complaint on behalf of her. These are:

1. A relative, co-worker or a friend of the aggrieved woman
2. An officer working in the state or national commission for women.
3. A person who has sufficient information about the incident and also written permission from the woman, or

• If such a woman is unable to file a complaint by herself due to any mental incapacity then,

1. Her friend, relative or special educator, or
2. A competent psychiatrist or psychologist
3. Any competent person having authority and under whose care she is receiving the treatment or care
4. A person who has sufficient information about the incident jointly with any of the people stated in the above options.

• If the woman is unable to file a complaint due to any other reason, then a person having sufficient knowledge about the incident can file a complaint on her behalf only if such person has taken written consent from the aggrieved.
• If the woman aggrieved dies, then a complaint can be filed by a person on her behalf if he/she has sufficient knowledge about the harassment she faced only if he/she has written consent from any of her legal heirs.

Process of Filing a Complaint

The Act provides for a procedure through which an aggrieved woman can make a complaint against the respondent for sexual harassment. The process has been defined under Chapter 4 of the Act. The Act does not prescribe any pre-defined format for making a complaint.

It is the responsibility of the aggrieved woman to file a complaint within 3 months since the incident happened. If sexual harassment against women has been made a number of times, then she has the responsibility to file a complaint within 3 months from the date of the last incident occurred.

Such a complaint should be filed before the members of the Internal Complaint Committee. The complaint should be addressed to the members in simple language along with all the essential details like time, place, date, name and the designation of the respondent and witnesses if any. The aggrieved woman should also state whether she asked the respondent to perform such an unwelcomed act or behavior. The aggrieved woman has also given a right to mention the relief which she wishes to seek from the respondent and the organization.

Inquiry and Investigation

After the complaint has been made, it is the responsibility of the ICC to conduct an inquiry and investigation about the complaint as per the provisions stated under Chapter 5 of the Act.

An Internal Complaint Committee has the same powers equal to that of a civil court while investigating a matter. The powers are defined under Section 11 of the Act. These are:

• Sending summon to the accused and his examination on oath.
• Calling for the production of documents
• Discovery of documents
• Any other matter related to the offence

If the respondent is an employee in the organization, and prima facie if it looks like such as case exists, then such a complaint is mandatorily required to be forwarded to the police within a time span of 7 days.

If in case, both parties are employees in the same organization, then both parties are given an opportunity to be heard during the inquiry stage. For parties to make representation against the findings of the ICC, both parties are given copies of the findings.

While the inquiry is pending, the aggrieved woman can make a request writing to the ICC to suggest the employer to:

• Transfer the respondent or the aggrieved woman to another office/branch of the organization, or the Respondent to another workplace
• Grant up to 3 months of leave to the aggrieved
• Any other relief claimed by the aggrieved

Relief during Pendency of Inquiry

The rules of 2013 provide certain relief to the aggrieved during the inquiry is pending. These have been stated under Rule 8. As per the request of the aggrieved, the ICC may suggest the employer to provide relief to the aggrieved in the manner described below:

• The ICC can ask the employers to restrict the respondent from reporting the aggrieved’s performance at work, and allot the same work to another competent person, or
• In cases of a complaint made under an educational organization, restrict the respondent from supervising any activities of the aggrieved.

The ICC has the power to suggest the employer from taking necessary steps and actions against the complainant if the complaint and allegations have been made with malicious intent.

The ICC has the responsibility to finish the inquiry within 90 days. After the inquiry has been completed, the ICC or an LCC has to file a report of the inquiry. It is mandatory to send a copy of such a report to both parties within the time span of 10 days. If the committee finds out that the allegations made against the respondent are true, then the committee can make suggestions to the employer for:

• Taking an action against the conduct of sexual harassment of the respondent as per the prescribed rules of the organization, or
• Order the respondent for paying a definite sum of money to the woman or her heirs in case of death or incapacity. The employer has the authority to deduct the amount defined from the salary of the respondent and pay it to the woman. In case, if the respondent makes a default in payment of the amount, the ICC can forward such an order of recovery to the competent district officer having the jurisdiction.

Manner of Inquiry into Complaint

There is a prescribed manner in which an inquiry is made after a complaint has been made. It has been defined under Rule 7. The complainant is required to submit 6 copies of the complaint with the documents supporting it and the details of the witnesses at the time of filing a complaint.

After the committee has received the complaint, the committee has to send a copy of the complaint within 7 working days to the complainant. The respondent is under an obligation to send a reply within a period of 10 days from the receipt of the complaint along with other necessary documents and details of the witnesses such as their names and address.

The committee must follow the principles of natural justice while making the inquiry into the matter. The committee can terminate or pass an ex-parte decision if any of the parties fail to be present during 3 consecutive hearings without any prior notice or any sufficient reasons for non-presence. An order for termination or ex-parte decision must not be made by the committee before giving prior notice of 15 days in advance to the party.

Investigation

After the inquiry has been made, the committee must also conduct the investigation as per the principles of natural justice. For such purposes, it is suggested for the organizations to have a well-established policy involving measures to prevent sexual harassment in the workplace and strict punishments for the person committing such harassment. The employer is under an obligation to assist the ICC or an LCC during the investigation being carried out. The committees have the authority to take any interim action when the investigation is going on.

Process of Conciliation

The committee can also initiate conciliation proceedings between the parties to solve the matter as per the situations mentioned under Section 10 of the Act. An aggrieved can woman make a request before initiation of an inquiry under the Act for trying to solve the matter by the conciliation method prescribed under Section 11 to the LCC or ICC.

Section 11 prescribes parties to enter into a conciliation method to resolve the dispute before initiation of formal inquiry. It is an informal method to solve the complaint. The settlement should not be made by payment of some money to the aggrieved.

After the matter has been resolved through conciliation, the same should be informed to the ICC or LCC as per the situation. The ICC or LCC shall consider the settlement and inform the same to employer of the organization or to the district officer, as per the case.

Each party must be provided copies of the settlement made between them. After the settlement has been made, the matter shall be closed for any further inquiries. Thus, it is important for people to take proper and correct legal assistance.

Corpbiz has highly qualified professionals to provide legal consultancy and assistance in such matters.

If the respondent fails to comply with the settlement achieved by means of conciliation, the aggrieved woman has the right to inform the same to the ICC. Then, the ICC can initiate the inquiry and forward the complaint to the police.

Factors for deciding the Compensation Amount

As per Section 15 of the Act, there are certain factors which are responsible for deciding the amount as compensation. The ICC or LCC needs to consider such below mentioned factors while deciding the amount.

• Any mental trauma, emotional stress, pain and suffering caused to the woman due to sexual harassment.
• The loss she has borne in her career due to such an incident.
• All medical expenses for treatment of the aggrieved woman, if any.
• The financial and income position of the Respondent.
• Feasibility of the respondent in paying the compensation amount in a lump sum or in installments.

Measures to avoid Sexual Harassment in the workplace

There are certain possible measures to avoid sexual harassment in the workplace. These are:

• Female workers should be given respectable treatment.
• No misuse of power or a position should be made to gain any wrong advances from the female employee.
• Any wrongful behavior depicting the seeking of sexual advances must be prohibited.
• If the female employee doesn’t wish to make connections outside the workplace, the male employee should restrict himself from making professional contact with the woman.
• If it is found that a female employee feels discomfort from having a conversation with a male employee, such conversations must be stopped immediately.
• A friendly and appropriate work environment should be provided to the female employee considering health and hygiene so that women should feel safe at work. No woman should feel that she has disadvantages in her employment status due to any wrongful reasons.
• Different pamphlets and notices should be pasted in the conspicuous places of the organization stating the prohibition of sexual harassment in the work place.