PREVENTION OF SEXUAL HARASSMENT UNDER THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
INTRODUCTION
As per the guidelines of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, every workplace shall create and maintain a safe, healthy and conducive work environment for women, free from sexual harassment and discrimination. Every workplace must protect the dignity as well as morality of every woman employee and believe in providing equal opportunities to attain maximum productivity.
Sexual harassment violates the fundamental rights of a woman to equality as enshrined in Article 14 and Article 15 of the Constitution, as well as her right to life or personal liberty under Article 21 of the Constitution. This right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and therefore, the State shall ensure the health and safety of women. The Constitution also emphasis on Article 19 (1) (g), the right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.
The Act provides protection against sexual harassment of women at workplace and the prevention and redressal of complaints of sexual harassment. It also extends to any matters connected therewith or incidental thereto.
WHAT IS SEXUAL HARASSMENT?
Sexual Harassment can be explained as an unwanted conduct of sexual nature which creates a hostile, humiliating and an intimidating or offensive environment for women. Sexual harassment includes unwelcome sexually determined behaviour which incorporates but is not limited to physical contacts and advances, sexually coloured remarks, leering, showing pornography and sexual demands, whether by words or actions. Any other actions or remarks which are derogatory in nature are also included under sexual harassment.
According to the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 :
“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;”
WHO IS AN AGGRIEVED WOMAN?
An aggrieved woman under this Act is a person of any age whether she is an employee or not, but who alleges to have been subjected to any act of sexual harassment in relation to a workplace. She could be a domestic worker who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis. She could be employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, The employment includes a contractor, with or without the knowledge of the principal employer, whether it is for remuneration purposes or working on a voluntary basis. Whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice.
According to the The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 :
“Section 2 (a) “aggrieved woman” means—
(i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to
have been subjected to any act of sexual harassment by the respondent;
(ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house; ”
PREVENTION OF SEXUAL HARASSMENT
The Act clearly states that no woman shall be subjected to sexual harassment at any workplace.
The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment, may amount to sexual harassment :
“(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment ; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.”
WHAT IS A WORKPLACE UNDER THE POSH ACT?
Under this Act, a workplace includes the following :
(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
(iii) hospitals or nursing homes;
(iv) any sports institute, stadium, sports complex or competition or games venue, whether
residential or not used for training, sports or other activities relating thereto;
(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house;”
Thus, in addition to the Head office or Branch offices, it shall also include any place where the Aggrieved woman or the respondent visits in connection with his/her work, during the course of and/or arising out of employment/ contract/ engagement with any workplace, including transportation provided for undertaking such a journey. Any misbehaviour in the nature of Sexual Harassment on any social networking website shall also be considered Sexual Harassment at workplace irrespective of whether such sexual behaviour was shown during or outside of office hours.
BEHAVIOUR CONSIDERED AS INAPPROPRIATE AND LIABLE FOR DISCIPLINARY ACTION UNDER THE POSH ACT
1. Physical Harassment :
a) Offensive gestures.
b) Touching in a sexual manner.
c) Assault or forced sexual attacks.
2. Verbal Harassment :
a) Unpleasant or unwanted remarks
b) Demand or request for sexual favours
c) Comments, jokes, questions on an individual’s sex or personal life
d) Sexually coloured remarks
3. Written, Graphic or Online Harassment :
a) Written communication that entails sexual implications
b) Sharing, posting or display of sexual posters, objects, cartoons, magazines, pictures or any other sexual content
c) Unsolicited forwarding of pornographic pictures through email or any other medium
4. Quid Pro Quo Harassment :
a) Job offer, promotion, raise, opportunities in exchange of sexual favours
b) Explicit or Implicit demand for sexual services
5. Third-Party Harassment :
Third party harassment is perpetrated by a “third party”, someone who is from outside of theWorkplace. It shall include vendors, suppliers and even clients of the workplace. The Workplace and person in-charge shall take necessary and reasonable steps, as per law and the service rules, to assist the affected person in terms of support and preventive action including assisting an employee or any other person who wishes to file a complaint with the local police.
REDRESSAL SYSTEM
Internal Complaints Committee :
According to the guidelines of the Act, every employer of a workplace shall, by an order in writing, constitute a committee to be known as the “Internal Complaints Committee”. The Internal Committee is constituted at all locations or offices of the Workplace where inquiry or redress may be sought.
The Internal Committee shall consist of the following members which are nominated by the employer, namely -
a) A presiding officer, who shall be a woman employed at a senior level at workplace from amongst the employees, provided that in case a senior level woman employee is not available, the Presiding officer shall be nominated from other offices of the Workplace, provided further that in case the other offices of the Workplace do not have a senior level woman employee, the Presiding officer shall be nominated from any other workplace of the same employer or other department.
b) Not less than two members from amongst employees preferably committed to the cause of women or who have had experienced in social work or have legal knowledge
c) One member from amongst non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to Sexual Harassment known as an External Member. Provided that at least one half of the total members so nominated shall be women.
Term :
The Presiding officer and every member of the Internal Committee shall hold office for such a period, not exceeding three years, from the date of their nomination as may be specified by the employer.
Removal or Replacement :
In case the Presiding Officer and / or any member of the Internal Committee :
1. Contravenes any provisions of the Policy
2. Has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him / her
3. Has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him / her
4. Has so abused his / her position as to render his / her continuance in office prejudicial to public interest, such Presiding Officer or member as the case may be, shall be removed from the POSH Committee.
5. Any vacancy so created shall be filled by fresh nomination in accordance with the provisions of the Act
However, a member of the Internal Committee may resign at any time by tendering his resignation in writing to the Workplace.
Local Committee :
1) The Local Committee shall consist of the following members to be nominated by the District Officer, namely :
(a) A Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women;
(b) One Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district;
(c) Two Members, of whom at least one shall be a woman, to be nominated from amongst such non-governmental organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment, which may be prescribed : provided that at least one of the nominees should, preferably, have a background in law or legal knowledge and that at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time.
(d) The concerned officer dealing with the social welfare or women and child development in the district, shall be a member ex officio.
(2) The Chairperson and every Member of the Local Committee shall hold office for such period, not exceeding three years, form the date of their appointment as may be specified by the District Officer.
(3) Where the Chairperson or any Member of the Local Committee :
(a) contravenes the provisions of section 16; or
(b) has been convicted for an offence or an inquiry into an offence under any law for the time being in force is pending against him; or
(c) has been found guilty in any disciplinary proceedings or a disciplinary proceeding is pending against him; or
(d) has so abused his position as to render his continuance in office prejudicial to the public interest, such Chairperson or Member, as the case may be, shall be removed from the Committee and the vacancy so created or any casual vacancy shall be filled by fresh nomination in accordance with the provisions of this section.
(4) The Chairperson or Members of the Local Committee other than the Members nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees or allowances for holding the proceedings of the Local Committee as may be prescribed.
REDRESSAL PROCEDURES
1. Any Aggrieved Woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee of the workplace, or the Local Committee within a period of three months from the date of the incident and in case of series of incidents, within a period of three months from the date of the last incident.
2. Provided that where such complaint cannot be made in writing, the Presiding Officer or any other member of the Internal Committee, the Chairperson or any Member of the Local Committee shall render all reasonable assistance to the Aggrieved Woman for making the complaint in writing. Provided further that the Internal Committee or, as the case may be, the Local Committee may for the reasons to be recorded in writing, extend the time limit not exceeding three months, if satisfied that the circumstances were such which prevented the Aggrieved Woman from filing a complaint within the said period.
3. If the Aggrieved Woman is unable to make a complaint in writing, he/she may contact the Internal Committee’s Presiding Officer or any member of the POSH Committee whose details are provided to every employee through an email and they shall render assistance to such aggrieved woman.
4. Where the Aggrieved Woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
CONCILIATION
1. The Internal Committee or, as the case may be, the Local Committee, may before initiating an inquiry and at the request of the Aggrieved Woman shall take steps to settle the matter between the Complainant and the Respondent through Conciliation. Provided that no monetary settlement shall be made as a basis of conciliation.
2. Where a settlement has been arrived, the Internal Committee or the Local Committee shall record the settlement so arrived and take necessary action.
3. The Internal Committee or the Local Committee shall provide the copies of the settlement as recorded to the Aggrieved Woman and the Respondent.
4. Where a settlement is arrived, no further inquiry shall be conducted by the Internal Committee or the Local Committee, as the case may be.
FALSE OR MALICIOUS COMPLAINT AND FALSE EVIDENCE
1. Where the Internal Committee arrives at a conclusion that the allegation against the respondent is malicious or the Aggrieved Woman or any other person making the complaint has made the complaint knowing it to be false or the Aggrieved Woman or any other person making the complaint has produced any forges or misleading document, it make recommend it to the concerned workplace to take action against the person who has made the complaint.
2. Where the Internal Committee arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend it to the workplace.
COMPENSATION
The POSH Committee may consider various factors as required under the law for the purpose of determining the sums to be paid to the Aggrieved Woman and may take the following into consideration:
1. The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman
2. The loss in the career opportunity due to the incident of sexual harassment.
3. Medical expenses incurred by the victim for physical or psychiatric treatment.
4. The income and financial status of the Respondent.
5. Feasibility of such payment in lump sum or in instalments
DUTIES AND RESPONSIBILITIES UNDER THE POSH ACT
1. Internal Committee :
i) The Internal Committee in calendar year prepare an annual report and submit the same to the workplace.
ii) To review statistical details of the Internal Committee’s reports.
iii) To carry out workshops and seminars regularly on Gender Sensitisation, Diversity and Inclusion and Sexual Harassment for the employees.
iv) To draft, review or amend the Sexual Harassment Policy to comply with the rules and regulations and for better effect.
v) To be fair and biased while arriving at decisions regarding the Aggrieved Woman.
2. Workplace :
i) Provide a safe working environment which shall include safety from the persons coming into contact at the Workplace
ii) Display the penal consequences of Sexual Harassment and the Policy constituting the Internal Committee
iii) Provide necessary facilities to the Internal Committee for dealing with complaints and conducting inquiries
iv) Provide assistance the the aggrieved woman if he/ she chooses to file a complaint under penal provisions
v) Treat Sexual Harassment as a misconduct under the service rules and initiate action for such misconduct
vi) Monitor the timely submission of reports by the Internal Committee
3. Employees :
i) It is the responsibility of all to respect the rights of others and to never encourage harassment. It can be done by:
a. Refusing to participate in any activity which constitutes harassment
b. Supporting the person to reject unwelcome behaviour
c. Acting as a witness if the person being harassed decides to lodge a complaint
ii) All are encouraged to advise others of behaviour that is unwelcome. Often, some behaviours are not intentional. While this does not make it acceptable, it does give the person behaving inappropriately, the opportunity to modify or stop their offensive behaviour.
iii) To be co-operative during investigations and take allegations seriously.
iv) Handle information in a discreet and confidential manner at all times.
v) Maintain ethical standards and behave in an appropriate manner with fellow employees.