Naaree.com interviewed Advocate Garima Srivastava to learn about workplace sexual harassment in India. Here she explains how sexual harassment looks and how women can deal with it and fight it in the workplace and the courts.
What are the most common forms of workplace sexual harassment in India?
When we think of sexual harassment at the workplace, we tend to think of a male superior/boss threatening a female employee with serious repercussions if she rejects his sexual advances or refuses to give in to demands for sexual favors.
However, the most common forms of workplace sexual harassment are insidious as opposed to direct. But, what is appalling is that these forms of sexual harassment are perceived as “harmless” by most people!
In most cases, sexual harassment proceeds in a seemingly inconspicuous manner but has detrimental effects on both the psychological well being as well as the career prospects of the victim.
The most common forms of sexual harassment at the workplace include but are not limited to:
- unwanted invitations for dinner, dates, drinks or parties
- obscene gestures, lewd jokes about sex or gender
- sexual innuendos and comments, sexist remarks
- showing pornography, sexually explicit images or offensive pictures/images
- sending sexually explicit emails or messages or other forms of sexually explicit communication and
- attempts at seeking physical proximity or contact with a woman.
Sexual harassment can take a variety of forms but broadly there are two forms:
a. quid pro quo sexual harassment which takes place when employment conditions and decisions are based on whether an employee is willing to grant sexual favors. Promotions, increments, work assignments, training opportunities and performance appraisals are some of the benefits that can be granted in exchange for sexual favors;
b. a hostile work environment in which unwelcome conduct of a sexual nature creates an uncomfortable environment for some employees. Sexually provocative pictures, sexually explicit conversations, inappropriate touching are all examples of this form of harassment.
The affront to personal dignity that occurs as a consequence of sexual harassment detrimentally affects the work environment. What matters is the impact of the behavior on the work environment not the intent behind the behavior. Women of all age groups and backgrounds experience sexual harassment.
How can you be sure that what you’re facing classifies as sexual harassment?
The keyword here is “unwelcome”. Sexual harassment is unwelcome conduct. Sexual harassment is a legally recognized form of sex discrimination.
Sex based conduct in the workplace is unwelcome when an employee does not initiate or solicit the conduct or when the employee regards the conduct as offensive. Whether the behavior was unwelcome is a subjective test, that is, it is a subjective question from the perspective of the person alleging sexual harassment.
How the alleged victim of harassment perceived and experienced the conduct of the alleged offender is pertinent not the intention behind such conduct. It is irrelevant that such behavior/conduct may not have been unwelcome to the others.
The legal test for sexual harassment has the following components:
- the behavior must be unwelcome;
- it must be of a sexual nature;
- it must be such that a reasonable person would anticipate in the circumstances that the harassed person would be offended, humiliated and/or intimidated.
Whether the behavior was offensive, humiliating or intimidating is an objective test which means whether a reasonable person would have anticipated that the behavior would have had this effect.
Unwelcome behavior need not be repeated or continuous. A single instance of unwelcome conduct can amount to sexual harassment.
Furthermore, the Act has widened the definition of “workplace” to include departments, branch offices, hospitals, stadiums, educational institutions or any place visited by the employee during the course of employment including transportation.
What should women keep in mind when dealing with a harasser?
Dealing with a harasser is obviously not easy but what women need to bear foremost in their minds is that a complaint of sexual harassment cannot be dismissed simply because the woman subjected to harassment did not confront or inform the harasser that his conduct was unwelcome.
There is no compulsion on the woman to confront or tell the harasser directly that his behavior is unwelcome. Consent or participation which is obtained by fear, intimidation and threats will not rule out a complaint of sexual harassment.
It is the employer’s duty and responsibility under the law to provide women a safe working environment. If the employee is in a vulnerable position, she may appear to acquiesce in the unwelcome conduct of the harasser. However, this does not mean that the conduct was consensual or that sexual harassment has not occurred.
Ignoring sexual harassment will only worsen your situation so familiarize yourself with your rights and ACT. You can choose a course of action depending on the gravity of the situation but inaction will only embolden the harasser to violate rights of other women too.
Speaking up will not only help women find support but may in fact protect others from becoming victims of harassment.
What legal options are available to women in India who deal with workplace sexual harassment?
Our Constitution recognizes the fundamental rights of working women under Articles 14, 15, 19 & 21.
The Supreme Court of India, in its landmark judgment in Vishaka & Others vs State of Rajasthan (1997), for the first time, recognized sexual harassment at the workplace as a human rights violation and not just a personal injury.
The judgment laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment. These guidelines have been codified in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act & Rules, 2013.
The ambit of this Act is very wide and its provisions are applicable to both the organized and the unorganized sectors, public and private sectors. The definition of ‘employee’ under the Act is fairly wide and covers regular, ad hoc and temporary employees, individuals engaged on a daily wage basis, contract labour, probationers, trainees, apprentices and even voluntary and domestic workers.
The Act requires an employer to set up an Internal Complaints Committee (ICC) at each office or branch of an organization employing at least 10 people. The government is required to set up a Local Complaints Committee (LCC) at the district level to investigate complaints of sexual harassment from organizations where the ICC has not been constituted owing to the organization having less than 10 employees or where the complaint is against the employer.
The Act sets out constitution of the Committees, the procedure to be followed for making a complaint and the investigation that has to be completed within a stipulated timeframe: a written complaint has to be filed by the harassed female employee (“aggrieved woman” under the law) within 3 months of the date of the incident.
The Complaints Committees have the powers of civil courts to gather evidence. The Committee is required to complete the inquiry within a period 90 days. Upon completion of the inquiry, the Report will be sent to the employer or the District Officer, as the case may be, and they have to take action on the Report within 60 days.
The complainant also has the option to ask the Complaints Committee to facilitate conciliation before initiating an enquiry. If a settlement is arrived at between the parties, no further inquiry shall be conducted by the ICC or the LCC.
However, if the aggrieved woman informs the ICC or the LCC that any term of the settlement has not been complied with by the respondent (alleged offender), the ICC or the LCC shall proceed to make an inquiry into the complaint or forward the complaint to the police.
The inquiry process has to be confidential and a penalty is imposed where confidentiality is breached. During the pendency of the inquiry of the ICC/LCC, on a written request by the aggrieved woman, the ICC/LCC can recommend the employer to transfer the aggrieved woman or the respondent to any other workplace or grant leave to the aggrieved woman up to a period of 3 months or grant such other relief as may be prescribed.
Under the Companies Act, 2013, sexual harassment can also be reported by a third party or a whistleblower. Furthermore, the law has made provisions for friends, co-workers, psychologists, psychiatrists and legal heirs to file a complaint if the aggrieved woman is unable to make her complaint owing to physical or mental incapacity or death.
Under the Act, it is the employer’s duty to provide assistance to the aggrieved woman if she chooses to file a complaint under the Indian Penal Code (IPC) or any other law, cause to initiate under the IPC or any other law against the perpetrator or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place and treat sexual harassment as misconduct under the service rules and initiate action for such misconduct. There is penalty for non-compliance with the provisions of the Act.
The Indian Penal Code was amended in April 2013 to include a new section pertaining to sexual harassment of women. The Criminal Law Amendment Act has introduced Section 354A which enlists the acts which constitute the offence of sexual harassment and prescribes penalty for the same.
Section 354A includes within the scope of sexual harassment the following acts:
- Physical contact and advances involving unwelcome and explicit sexual overtures;
- A demand or request for sexual favors;
- Showing pornography against the will of the woman; and
- Making sexually colored remarks
What is the best way to go about reporting sexual harassment?
Before I answer this question, I must point out that most women do not report sexual harassment at the workplace because they apprehend retaliation by the employer or the harasser.
In most cases where sexual harassment is proved, employers may terminate the employment of a harasser but eventually they may terminate the employment of the complainant as well as she is perceived as a “troublemaker”, not the recipient of trouble.
Very often the harasser is a superior who wields control over the reporting employee’s prospects for promotion, status of her progress at work and the most convenient weapon in the arsenal of such harassers is raising “performance issues” against the complainant or giving her a negative feedback during appraisals.
Similarly, a retaliating employer can threaten the complainant’s job prospects in another company by giving the prospective employer an adverse report on her competence, credentials and even moral conduct.
Often the only witness is a co-worker who may be reluctant to depose against another colleague or a superior. Consequently, the ICC could find the complaint “not proved” for lack of evidence and label it a “false” or “malicious” complaint not recognizing the crucial difference between a complaint “not proved” and a “false” or “malicious” complaint.
These are genuine fears that overwhelm a harassed woman but unfortunately, it is the reality, especially of corporate India. Most corporate entities have been found to be largely non-compliant with the law on sexual harassment. Now in this scenario, how does a woman go about reporting workplace harassment?
Women must always bear in mind that there is no one way of responding to harassment. Every situation is different and if the victim is unable to evaluate the situation for herself to take suitable action against the harasser, she must consult a lawyer who can give her clarity on the best course of action because facts pertaining to unwelcome conduct would have to be brought within the purview of the law to satisfy the tests for establishing sexual harassment.
If you are feeling harassed, document the situation immediately: include dates, time, places, incidents, names of person(s) involved and witnesses.
Maintain a record of phone calls, web chats, SMS/MMS, emails or any other communication that will help to establish the factum of harassment. Put down your grievance(s) in writing or in an electronic form and report it to Human Resources Department.
As stated above, “unwelcome” conduct is an essential requirement of sexual harassment. Firmly refuse any offers of dinners, parties, drinks or other forms of socialization which are not work related. Most importantly, speak to your colleagues about your experiences with the harasser because chances are that you are not the sole victim of harassment.
If your employer retaliates against you, you may seek the assistance of an NGO or write in to the Ministry of Corporate Affairs or the Ministry of Women and Child Development or even directly approach the police where the offence is of a criminal nature such as stalking, molestation, assault or demand for sexual favors.
What are the steps that a woman should take to ensure that her complaint is taken seriously?
Despite the stringent provisions of law, there is no certainty that a female employee’s complaint of sexual harassment will be taken seriously by her employer. As I have pointed out above, most employers have been found to be non-compliant with the law on sexual harassment.
The best course of action is to let your employer know that you will escalate your complaint with the higher authorities if you have reasonable grounds to believe that it will not act on your complaint seriously or is likely to retaliate against you or victimize you.
Is there anything else to keep in mind?
Sexual harassment is linked with power and is designed to coerce women; in fact it’s a combination of unacceptable sexual behavior and abuse of power in a society which often treats women as sex objects.
The Sexual Harassment Act has been enacted with the objective of providing women protection against sexual harassment at the workplace, prevention and redressal of complaints of sexual harassment.
Presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment, threat of detrimental treatment in employment and threat about present or future employment affect the aggrieved woman’s health and safety and amount to sexual harassment.
Victimization, vilification and retaliation are common consequences faced by women who report sexual harassment but in my opinion, despite all these odds stacked against women, rising number of complaints of sexual harassment against men occupying high profile offices indicates that finally harassers who abuse power are increasingly finding themselves in the dock and facing social embarrassment if not imprisonment or termination of employment. This is a positive development.
The Ministry of Women and Child Development has released a Handbook on the Sexual Harassment of Women at Workplace Act, 2013. It is a ready reckoner for aggrieved women, employers and members of ICC and an initiative to spread awareness about workplace sexual harassment.
All employers and working women should consult this handbook as it prescribes best practices to enable a harassment free workplace.
Garima Srivastava is an Advocate practicing in New Delhi. She conducts workshops across India to create awareness among women pertaining to their rights under various laws, especially laws applicable in the workplace. Her areas of practice and interest include constitutional law, environmental law, corporate and commercial laws, consumer disputes and child rights. You can write in to her at firstname.lastname@example.org or connect with her on LinkedIn.
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