Professional Documents
Culture Documents
SEXUAL HARASSMENT
AT
WORKPLACE
FACULTY OF LAW, ICFAI, HYDERABAD
11FLUHH0102191
A REPORT ON
SUBMITTED BY:
Manan Chhabra
Submitted to:
FACULTY GUIDE
PROJECT GUIDE
Dr. L.Laxmi
IBS, Hyderabad
ACKNOWLEDGEMENT
I hereby take this opportunity to thank Bhasin and Bhasin Associates for providing me an
exposure in the field of Labour Law through the course of my summer internship.
I would like to express my sincere gratitude towards my project guide Mrs. Poonam Das,
for providing me great insights about Labour Law, Firms area of practice, for guiding me
all throughout and for being a great support.
I would also like to thank Dr.L.Laxmi, my faculty guide for instructing me and giving
me her valuable advice on my project.
Thanking You,
Manan Chhabra
Table of Contents
Introduction 2
Glossary
Introduction
Sexual harassment at the workplace is not a new thing but centuries old-at least if we
define sexual harassment as unwanted sexual relations imposed by superiors on the
subordinates. Sixty per cent of working women have faced sexual harassment at some
point of time in their working lives. For every woman who raises an outcry, there are
hundreds of others who suffer in silence, quit their jobs or get transfers.
For years, sexual harassment was considered an unavoidable part of a working woman's
life. Now awareness is slowly rising that no woman (employee) should humbly accept
sexual harassment as part of her/his lot.
Women have faced coercion at the workplace since time immemorial to the extent of
grave physical and mental injury. Most modern accounts of history of sexual harassment
at the workplace agree that recognition of this problem gathered momentum from the
early 20th Century.
Sexual harassment has been recognized as most intimidating, most violating form of
violence since long in countries like UK, USA and many countries have not only taken
note of how degrading experiences of sexual harassment can be for women as well as
employers but have adapted legislative measures to combat sexual harassment.
Quid pro quo and hostile work environment are the two broad types of sexual
harassment.
Sexual harassment at workplace is generally classified into two distinct types. 'Quid pro
quo', means seeking sexual favors or advances in exchange for work benefits and it occurs
when consent to sexually explicit behavior or speech is made a condition for employment
or refusal to comply with a 'request' is met with retaliatory action such as dismissal,
demotion, difficult work conditions. 'Hostile working environment' is more pervasive
form of sexual harassment involving work conditions or behavior that make the work
environment 'hostile' for the woman to be in. Certain sexist remarks, display of
pornography or sexist/obscene graffiti, physical contact/brushing against female
employees are some examples of hostile work environment, which are not made
conditions for employment.
Glossary
Workplace:
The workplace is any area where the employee is required to represent, carry out, perform
or implement any duties, obligations or services required. By this token, a home would be
a workplace for a domestic maid. For a person engaged in a field job, the area that she/he
covers in the course of her/his work represents her workplace.
Sexual harassment:
Sexual harassment is described as harassment in subtle ways, which may include sexual
implications, inappropriate sexual gestures and propositions for dates or sexual favors. In
more blatant forms, such harassment may include leering, pinching, grabbing, hugging,
patting,
brushing
against
and
touching.
The Supreme Court's guidelines describe physical contact or advances; demand or request
for sexual favors; sexually colored remarks and showing pornography as offensive
conduct.
Sexual harassment becomes even more serious when the granting of sexual favors is made
a term or condition of the individual's employment, when it interferes with the individual's
work performance or it creates an intimidating or hostile work environment. The offensive
conduct could be exhibited by a superior, a colleague, a subordinate or a client
Sexual harassment results in the violation of the fundamental right to "gender equality"
and "the right to life and liberty" besides the right under Article 15 of the Constitution
(which deals with the prohibition of discrimination on grounds of religion, race, caste,
creed or sex).
Keeping these rights in mind, the Supreme Court has passed twelve guidelines that have
the force of law. They were taken by a division bench as there was "an absence of enacted
law to provide for the effective enforcement of the basic human right of gender equality
and guarantee against sexual harassment at the workplace." These guidelines are to be
observed until legislation is enacted (ACT of 2013).
Some of these guidelines are:
It shall be the duty of the employer or other accountable persons in the workplace or
other institutions to prevent or deter the commission of acts of sexual harassment and to
provide the procedure for the resolution, settlement or prosecution of acts of sexual
harassment.
The employer should initiate action in accordance with the law by making a complaint
with the appropriate authority. Victims should have an option to seek their own transfer or
that of the perpetrator.
A complaint mechanism should be created in the organization. This complaint mechanism
should ensure time-bound treatment of complaints. The complaints committee should be
headed by a woman and not less than half of its members should be women. In order to
prevent the possibility of undue pressure or influence from senior levels, a third party,
especially an NGO familiar with sexual harassment, should be involved in the complaints
committee.
The committee must submit an annual report to the government. Employees must be
allowed to raise the issue of sexual harassment at various group meetings.
The guidelines also provide for the initiation of criminal proceedings where sexual
harassment is proved beyond doubt.
Employer's responsibility:
The employer is responsible for creating appropriate working conditions for health, work,
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leisure and hygiene. When the victim complains to the employer, the burden is on the
employer to make apt investigations. If the employer does not pay attention to the
complaint, he can be held responsible. The employer must set up a complaint mechanism
in each department of the company. The Supreme Court's guidelines are binding on
Central and State governments and the private and public sector.
QUID PRO QUO HARASSMENT is when employment and/or employment decisions for
an employee are based on that employees acceptance or rejection of unwelcome sexual
behavior.
For example, a supervisor fires an employee because that employee will not go out with
him or her.
HOSTILE WORK ENVIRONMENT is a work environment created by unwelcome
sexual behavior or behavior directed at an employee because of that employee's sex that is
offensive, hostile and/or intimidating and that adversely affects that employee's ability to
do his or her job.
For example, pervasive unwelcome sexual comments or jokes that continue even though
the recipient has indicated that those behaviors are unwelcome.
In, Apparel Export Promotion Council Vs. A.K. Chopra1, the Hon'ble Supreme Court
while deciding an issue whether the act of a superior officer (wherein such superior officer
tried to molest his junior woman employee) would amount to sexual harassment, the
Court relied on the definition of the term 'sexual harassment' laid down by the Supreme
Court in the Vishaka Judgment (which is similar to the definition of the Sexual
Harassment provided in the Act) held that "the act of the respondent was unbecoming of
good conduct and behavior expected from a superior officer and undoubtedly amounted to
sexual harassment.
Section 3 of the Act provides that no woman shall be subjected to sexual harassment at
any workplace. This section further provides the circumstances which if present or
connected with any act or behavior of sexual harassment may amount to sexual
harassment such as implied or expressed promise to preferential treatment or implied or
explicit threat of detrimental treatment in her employment, implied or explicit threat about
her present or future employment, interference with work or creating an intimidating or
offensive or hostile work environment, humiliating treatment likely to affect health or
safety of a woman
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commuting
to
and
from
the
place
of
employment.
The definition of 'employee' under the Sexual Harassment Act is fairly wide and
covers regular, temporary, ad hoc employees, individuals engaged on daily wage
basis, either directly or through an agent, contract labor, co-workers, probationers,
trainees, and apprentices, with or without the knowledge of the principal employer,
whether for remuneration or not, working on a voluntary basis or otherwise,
whether the terms of employment are express or implied.
Internal Complaints Committee and Local Complaints Committee: The
Sexual Harassment Act requires an employer to set up an Internal Complaints
Committee' (ICC) at each office or branch, of an organization employing at least
10 employees. The government is in turn required to set up a Local Complaints
Committees (LCC) at the district level to investigate complaints regarding sexual
harassment from establishments where the ICC has not been constituted on
account of the establishment having less than 10 employees or if the complaint is
against the employer. The Sexual Harassment Act also sets out the constitution of
the committees, process to be followed for making a complaint and inquiring into
the complaint in a time bound manner.
Interim Reliefs: The Sexual Harassment Act empowers the ICC and the LCC to
recommend to the employer, at the request of the aggrieved employee, interim
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measures such as (i) transfer of the aggrieved woman or the respondent to any
other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3
months in addition to her regular statutory/ contractual leave entitlement.
Process for Complaint and Inquiry: Please refer to the following flowchart
which provides, in brief, the process to be followed by the aggrieved employee to
make the complaint and by the employer to inquire into the complaint. The law
allows female employees to request for conciliation in order to settle the matter
although a monetary settlement should not be made as a basis of conciliation.
Action against Frivolous Complaints: So as to ensure that the protections
contemplated under the Sexual Harassment Act do not get misused, provisions for
action against "false or malicious" complainants have been made.
12
Finally, the court stated that the guidelines are to be treated as a declaration of law in
accordance with Article 1413 of the Constitution until the enactment of appropriate
legislation and that the guidelines do not prejudice any rights available under the
Protection of Human Rights Act 1993.
The Vishakha guidelines categorically state that: 4
It is the duty of the employer or other responsible persons in the workplace or institution
to:
All women who draw a regular salary, receive an honorarium, or work in a voluntary
capacity in the government, private sector or unorganized sector come under the purview
of these guidelines.
Complaints mechanism
A woman must head the complaints committee and no less than half its members
should be women.
The committee should include an NGO/individual familiar with the issue of sexual
harassment.
3 Article 141: The law declared by the Supreme Court shall be binding on all courts within the territory of India.
4 A brief history of the battle against sexual harassment at the workplace; by Vibhuti patel (infochangeindia.org)
15
Preventive steps
Employers' responsibilities
Recognize the liability of the company, etc., for sexual harassment by the
employees or management. Employers are not necessarily insulated from that
liability because they were not aware of sexual harassment by staff.
and
harassment.
behavior
as
an
offence.
faced
by
women.
* A statement that anyone found guilty of harassment after investigation will be subject to
disciplinary action.
The range of penalties that the complaints committee can levy against the
offender should include:
also
be
aware
of
the
policy.
* Conducting periodic training for all employees, with active involvement of the
complaints committee.
Employers' duty
Freedom from sexual harassment is a condition of work that an employee is entitled to
expect. Women's rights at the workplace are human rights.
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The Court was specifically required to consider whether individual state governments had
made the changes to procedure and policy required by the Vishaka Guidelines and a
number of earlier orders of the Court.
Law
Article 141 Constitution of India
The Vishaka Guidelines
Protection of Women against Sexual Harassment Bill 2010 (the Bill) still pending.
Central Civil Service (conduct) Rules, 1964 (CCS Rules)
Industrial Employment (Standing Orders) Rules.
Decision
The Court stated that the Vishaka Guidelines had to be implemented in form, substance
and spirit in order to help bring gender parity by ensuring women can work with dignity,
decency and due respect. It noted that the Vishaka Guidelines require both employers and
other responsible persons or institutions to observe them and to help prevent sexual
harassment of women.
The Court held that a number of states were falling short in this regard. It referred back to
its earlier findings on 17 January 2006, that the Vishaka Guidelines had not been properly
implemented by various States and Departments in India and referred to the direction it
provided on that occasion to help to achieve better coordination and implementation. The
Court went on to note that some states appeared not to have implemented earlier Court
decisions which had required them to make their legislation compliant with the Vishaka
Guidelines. It noted that some states had only amended certain aspects of their legislations
rather than carrying out all required amendments and others had taken even less action.
Accordingly, it held that the Vishaka Guidelines should not remain just symbolic but
rather shall provide direction until the legislative enactment of the Bill. Hence, holding
that a number of states had not done everything required to comply with the Guidelines,
the Court provided the following directions:
States governments must make the necessary amendments to their CCS Rules and
Standing Orders within two months of the date of judgment.
States governments must ensure there is an adequate number of Complaint Committees
within each state to hear complaints and that such Committees are headed up by a woman.
State functionaries must put in place sufficient mechanisms to ensure effective
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which constitute the offence of sexual harassment and further envisages penalty /
punishment for such acts. A man committing an offence under this section is punishable
with imprisonment, the term of which may range between 1 - 3 years or with fine or both.
Since the amendment criminalizes all acts of sexual harassment, employers shall be
required to report any offences of sexual harassment to the appropriate authorities.
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ANALYSIS/ CONCLUSION
a. The Sexual Harassment Act only addresses the issue of protection of women
employees and is not gender neutral. Male employees, if subjected to sexual
harassment, cannot claim protection or relief under the law.
b. The definition of 'aggrieved woman' does not make a reference to victimization
(on the part of the employer) of the employee who has made the complaint of
harassment, which would be fairly common in such situations. This was in fact an
important recommendation of the Standing Committee. The definition of the
'sexual harassment', the words 'verbal, textual, physical, graphic or electronic
actions' should have been added in order for the purposes of clarity, as it would
cover some of the technological developments.
c. It may become a challenge for employers to constitute an ICC at all administrative
units or offices. It may also become necessary for the employer to spend more time
and efforts in training members of the ICC who are to be replaced every 3 years.
There is also a lack of clarity as to who shall be a chairperson of the ICC in
absence of a senior level female employee. Also, in such cases, the composition of
the committee members should ideally have been an odd number in order for the
committee to arrive at a decision based on majority.
d. The ICC also needs to involve a member from amongst non-governmental
organizations or associations committed to the cause of women or who have had
experience in social work or have legal knowledge. Employers may not be
comfortable with such an external representation, considering the sensitivities
surrounding this issue and the need to maintain strict confidentiality.
e. The law casts an obligation upon the employer to address the grievances in respect
of sexual harassment at workplace in a time bound manner, which in several cases
may not be practically possible as the employees or witnesses involved may not
easily or readily co-operate.
f. The law allows the employer to initiate action against the complainant in case of a
false or malicious complaint. This provision, although meant to protect the
employer's interests, is likely to deter victims from reporting such incidents and
filing complaints, which may in turn defeat the purpose for which the law was
enacted.
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g. In case the accusation has been proved, the Sexual Harassment Act allows the ICC
to recommend to the employer to deduct from the respondent's salary such sums it
may consider appropriate to be paid to the aggrieved woman. However, there may
need to be made certain corresponding changes to the Payment of Wages Act, 1936
of India, which restricts the nature of deductions that may be made from an
employee's salary.
h. Considering that India has a diverse set of religions, cultures, castes, languages,
etc. the government also needs to start focusing on providing protection for some
of the other forms of harassment, which is fairly common in several of the
developed countries (same sex harassment).
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Figure 1 POSITION OF SEXUAL HARASSMENT IN INDIA (AS PER THE ACT)
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