SEXUAL HARASSMENT IN THE WORKPLACE:
Workplace harassment can be discriminatory, personal, physical, psychological, sexual, verbal, online, relating to power and quid pro quo, in the nature of retaliation. The rise in the rate of women going to work is increasing by the day, so is harassment faced by them in work place seems to be increasing.
ACTS AMOUNTING TO SEXUAL HARASSMENT INCLUDES BUT ARE NOT LIMITED TO:
1. Rape or attempt to Rape or sexual assault.
2. Unnecessary or intentional touching, leaning over, cornering, or pinching.
3. Unwanted sexual teasing, jokes, remarks, or questions.
4. Whistling at women.
5. Making kissing sounds, howling, and smacking lips.
6. Touching an employee’s clothing, hair, or body.
7. Touching or rubbing oneself sexually in the presence of another person.
The sexual harassment against women is governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The Vishaka case being the point of realization for the requirement of such a legislation, yet coming into existence after 16 years since the judgement was given until which the guidelines given by the Supreme Court, in that case, was followed to govern sexual harassment. The Posh Act was enacted with the objective to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
The POSH Act contains provisions as to how sexual harassment in workplace can be prevented. It also provides for a redressal mechanism through the “Internal Complaints Committee” in the workplace or “Local Complaints Committee” at the district. This act not only covers working women but also extends to the women who enter the workplace as clients, customers, or apprentices, the students and research scholars in colleges and universities, and patients in hospitals.
Before the enactment of this Posh Act the Acts that govern the sexual harassment of women are listed below:
• Indian Constitution – Articles 14, 15, 19 (1) (g) and 21.
Sexual harassment results in violation of a woman’s fundamental rights to equality under articles 14 and 15 and her right to life and dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade, or business with includes a right to a safe environment free from sexual harassment.
• Indian Penal Code – Sections 354A, 354B, 354C, 354D, and 509.
DEFINITION OF SEXUAL HARASSMENT AS PER POSH ACT [Section 2(n)]
“Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely: —
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
In Shanta Kumar vs CSIR , the court held the following “Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented. A mere accidental physical contact, even though unwelcome, would not amount to sexual harassment”.
INTERNAL COMPLAINTS COMMITTEE:
• In Singh Chhabra vs M/s Air France India and Anr the Court held that the Internal Complaints Committee (ICC) should be constituted in strict compliance with the requirements under the law…”
• The court in U.S. Verma, Principal, and Delhi Public School Society Vs. National Commission for Women and Ors held that the requirement under the law concerning the qualification of the independent member on the ICC is an indispensable necessity for meting out justice under the POSH Act, to ensure that the complainant employees are assured objectivity and neutrality in the inquiry, insulated from the employers’ possible intrusions.
PROCEDURES FOLLOWED UNDER THE POSH ACT:
1. The organisation or institution has to set up Internal Complaints Committee, having more than 10 employees, to hear and redress complaints about sexual harassment.
2. Every District Officer shall constitute a committee in the district to be known as the Local Committee to receive complaints of sexual harassment from establishments where the Internal Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.
3. Any aggrieved woman may make a complaint in writing regarding sexual harassment at the workplace to the Internal Committee.
4. In case there is no Internal Committee, the complaint must be made to the Local Committee within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident
5. Legal heirs can make a complaint in case of incapacity or death of the aggrieved woman.
6. The Internal Committee or the Local Committee, may, before initiating an inquiry and at the request of the aggrieved woman can take steps to settle the matter between her and the respondent through conciliation.
7. The Committee will conduct the enquiry and will provide the report of its findings to the employer, or as the case may be, the District Officer within a period of ten days from the date of completion of the inquiry.
8. For the purpose of making an inquiry, the Internal Committee or the Local Committee, shall have the same powers as are vested in a civil court the Code of Civil Procedure, 1908 namely: — (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents, and (c) any other matter which may be prescribed. The inquiry shall be completed within a period of ninety days
9. For the purpose of determining the sums to be paid to the aggrieved woman, the Internal Committee or the Local Committee, shall have regard to (a) the mental trauma, pain, suffering, and emotional distress caused to the aggrieved woman; (b) the loss in the career opportunity due to the incident of sexual harassment; (c) medical expenses incurred by the victim for physical or psychiatric treatment; (d) the income and financial status of the respondent; (e) feasibility of such payment in lump sum or in instalments.
OTHER LEGAL RECOURSES:
The sexual harassment amounts to offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
When the conduct of sexual harassment amounts to any misconduct in the employment, appropriate disciplinary action should be initiated by the employer in accordance with law.
1. Mr. Arun Sugavaneshvar, Advocate practicing at Madras High Court, with 10 years of experience in Family, IPR, and Property matters.
2. Sarfaras Feroz, 4th Year student of BBA, LLB (Hons) at Saveetha School of Law, SIMATS, Chennai.