Sexual Harassment Law, detailed Analysis

1. INTRODUCTION

‘A’ worked for a reputed consultancy firm in Mumbai. After her failure to reveal conflict of interest due to her husband’s similar consultancy firm and further refusal to repay the loan she took from the employers, she was asked to resign. Instead, the lady filed a sexual harassment case against her employer and his wife.

‘C’ worked as a bank manager for a reputed bank in Mumbai. ‘B’ comes to him asking him to give her a job. C asks B to leave. Next day, he comes to know that a case of Sexual Harassment has been filed against him.

‘D’ was an associate Professor in a University. ‘E’ a student of his, proposes him. ‘D’ refuses the proposal and warns the girl of informing the dean in case of further advances. ‘D’ also informed the girl student of his married status. Few months later a case of sexual harassment is filed against him by E and the professor loses his job and reputation in a University he had been serving for last 12 years.

Now let’s look at the flip side of the story.

‘F’ used to work as a contract RJ for a radio station. She filed a complaint against her manager for requesting sexual favors, after continuously suffering mental agony for months together. The manager who had been working for the radio station for last 14 years produced an affidavit from other employees underlining his impeccable character. The result: The contract of ‘F’ was never renewed. The manager still works for the same radio station and also received a promotion.

All of us know about the recent Sexual Harassment cases against Justice Ganguly and Retd. Justice Swatanter Kumar. Without going into the genuineness of the claims, what do we understand from these examples? We’d say that one can never be too casual in his professional approach.

How can one avoid such circumstances? Unfortunately, the answer is there cannot be any straightjacket formula.

Nevertheless, this analysis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 aims at explaining everything you need to know about the act as an employee, employer/male or a female.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (SHWW Act) is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha on 3 September 2012. It was passed by the Rajya Sabha on 26 February 2013. The Bill got the assent of the President on 23 April 2013.The Act came into force from 9 December 2013.

The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan (1997). Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.

2. REGULATORY FRAMEWORK

The Supreme Court of India, in 1997, in the Vishaka Judgment, for the first time, acknowledged sexual harassment at the workplace as a human rights violation. The Supreme Court relied on the Convention on the Elimination of All Forms Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. In its judgment, the Supreme Court outlined the Guidelines making it mandatory for employers to provide for sympathetic and non-retributive mechanisms to enforce the right to gender equality of working women. As per the Vishaka Judgment, the Guidelines, until such time a legislative frame work on the subject is drawn-up and enacted, have the effect of law and the Guidelines are to be mandatorily followed by organizations, both in the private and government sector. While there were several attempts made to enact a law on this subject previously, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 was eventually passed by the Lower House of the Parliament (Lok Sabha) on September 3, 2012, then passed by the Upper House of the Parliament (Rajya Sabha) on February 26, 2013 and received the President’s assent on April 22, 2013.

Sexual harassment is considered as a violation of the fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the Constitution of India (“Constitution”) and her right to life and to live with dignity as per Article 21 of the Constitution. It has also been considered as a violation of a right to practice or to carry out any occupation, trade or business under Article 19(1)(g) of the Constitution, which includes a right to a safe environment free from harassment.

3. HOW TO HANDLE SEXUAL HARASSMENT AT WORKPLACE:

In order to analyse this aspect, we will understand it in two segments:

1. The first segment will deal with the Preventive methods
2. The second segment will deal with the approach in case of an alleged Sexual Harassment Complaint.

1. A. PREVENTIVE METHODS TO AVOID SEXUAL HARASSMENT AT WORKPLACE

 

1. Employer
2. Employee

• Females
• Males

1. a. PREVENTIVE MEASURES SUGGESTIBLE TO BE TAKEN BY EMPLOYERS

Employers generally tend to take Sexual Harassment policies lightly. They are under this false impression that this involves only the complainant and the alleged accused. The employers should take note that an employer does not appear to be financially liable for the actual misconduct of his or her employees, but may suffer financial consequences if he or she does not comply with the requirements generally outlined above.

An employer found in violation of the Act during an inspection may be liable for a monetary penalty of up to INR 50,000 and repeated offenses could result in the fine being doubled, de-registration or revocation of business licenses.

The violations which may trigger an offense by an employer include:

• Failing to create an ICC under Section 4;
• Failure to take action as required by the ICC under Sections 13 (proven allegations),
• Section 14 (malicious allegations against an accused) and
• Section 22 (annual reporting of the cases handled);
• Contravention or attempted contravention of any provision of the Act.

The Act provides a rough outline of an employer’s requirements to develop a complaint mechanism. Most importantly, Section 4 of the Act requires all workplaces employing ten or more workers to establish an Internal Complaints Committee (“ICC”). The ICC must consist of at least four members under the Chairpersonship of a senior woman employee[1] and must also include two members from amongst the employees preferably committed to the cause of women or with experience in social work or legal knowledge and includes a third party member, preferably affiliated with a non-governmental organization. Employers should develop an ICC in each of their workplaces as soon as possible to avoid penalties for non-compliance.

Section 19 requires employers to organize an orientation, workshops and awareness programs for sensitizing employees to the harms of sexual harassment and to provide assistance to the complainant should she choose to file a police complaint. Further, employers are required to display at the workplace details of the penal consequences of indulging in acts of sexual harassment, the composition of the ICC, and the grievance redressal mechanism available to aggrieved employees.

In addition to ensuring compliance with the other provisions stipulated, the employers are suggested to, inter alia,

1. Provide a safe working environment.
2. Display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee.
3. Also inform employees consequences of registering false complaints through in house communication system / posters / meetings.
4. Prepare and inform the employees about Anti- Sexual Harassment Policy.
5. Treat sexual harassment as misconduct under the service rules and initiate action for misconduct.
6. Express prohibition of sexual harassment in any form.
7. Provision of appropriate work conditions in respect of- work, leisure, health, hygiene to further ensure that there is no hostile environment towards women.
8. No woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
9. A Dress code is suggestible, at the same taking into consideration the concerns of employees as well. This will ensure that your employees are not offended in any way.
10. Encouraging healthy internal interaction and discussion on Anti- Sexual Harassment Policy and how it can be further improved.
11. Use of transparent and translucent glass panes in the office and installing CCTV cameras in such a way that they cover whole of the office.
12. The Anti- Sexual Harassment Policy can include things like what kind of interaction is permissible, respecting individual’s personal space and dignity, suggesting words or terms which might be considered objectionable by other employees.
13. The employer is also required to monitor the timely submission of reports by the ICC.

1. b. PREVENTIVE MEASURES SUGGESTIBLE TO BE TAKEN BY EMPLOYEES

i. FEMALES:

 

The Act has been implemented to address the problems faced by female employees at workplaces. This does not mean that bottlenecks with regard to males have not been addressed. These bottlenecks will be discussed later in the article. The point is that women should take care that they do not succumb to any sort of pressure in filling complaints. The act should be used to protect one self’s constitutional rights. A false complaint is going to invite penal liability under common law as well as penal laws. Furthermore, it sure does tarnish the employee’s image in the workplace.

ii. MALES:

Despite criticism the act has done well in ascertaining that male employees are not negatively impacted by misuse of the act. Nevertheless, males should remember to respect individual space and should conduct themselves in professional manner. Personal opinions should be limited. Personal comments should be avoided as far as possible.

The bottom line is that both female and male employees should know where to draw a line.

Before we go any further we need to understand how a complaint has to be filed and what is the procedure involved?

4. PROCEDURE OF FILLING COMPLAINT UNDER THE ACT

The image gives a graphical representation of the approach required:

Step I

A woman alleging sexual harassment must act quickly to preserve her complaint[2]. A complaint is to be made in writing by an aggrieved woman within 3 months of the date of the incident. The time limit may be extended for a further period of 3 months if, on account of certain circumstances, the woman was prevented from filing the complaint. If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death, her legal heirs may do so.

Step II

Upon receipt of the complaint, the ICC or Local Complaints Committee (LCC) must proceed to make an inquiry in accordance with the service rules applicable to the respondent or in their absence, in accordance with rules framed under the Act.

Step III

The inquiry must be completed within a period of 90 days. In case of a complaint by a domestic worker, if in the opinion of the LCC a prima facie case exists, the LCC is required to forward the complaint to the police to register a case under the relevant provisions of the Indian Penal Code.

Step IV

Where the ICC finds that the allegations against the respondent are proven, it must submit a report to the employer to:

• take action for sexual harassment as a misconduct in accordance with the provisions of the applicable service rules or where no service rules exist, in accordance with rules framed under the Act;

• deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.

• take action which may include suspension, termination, mediation, or other appropriate actions as the ICC sees fit.

Step V

The employer must act on these recommendations within 60 days.

1. B. APPROACH IN CASE OF AN SEXUAL HARASSMENT COMPLAINT

Now that we have discussed preventive measures and the procedure involved, we will try to understand how to handle an alleged Sexual Harassment Complaint.

If a complaint has been found “proved,” under Section 15 compensation for the aggrieved woman is provided for (if it is deemed appropriate by the ICC). Various factors to be considered include the level of mental trauma, pain, suffering, emotional distress, medical expenses incurred, financial status of the respondent, loss in career opportunity due to the incident, and the feasibility of such payment in lump sum or in installments.

The accused person faces a potentially significant financial loss if found liable by the ICC. The Act provides that deductions may be made from the respondent’s salary or wages. This provision lacks specificity as to how much each factor will be taken into account and under what circumstances. If a complaint is not proven, the ICC can instruct the employer or appropriate District Officer that no further action is required.

5. Steps Worth Consideration for the Employer

The employers should make sure that the complaint of the female employee is duly recorded at first instance in presence of if ICC and a witness. Further the complaint should be duly signed by the members of ICC, witness and the complainant.

A report shall be prepared following due procedures in accordance with provisions as enunciated hereunder:

 

• The ICC has to go through the details of the complaint and evaluate if there is a prima facie case or not.

• If the complaint complexity requires that the complainant is to be called for more than once for enquiry, then utmost precaution should be taken to ensure that there is no loss of dignity to the complainant.

• The ICC may, before initiating an enquiry and at the request of the complainant, take steps to settle the matter between her and the accused through conciliation, provided that no monetary settlement shall be made as a basis of conciliation.

• Where a settlement has been arrived during conciliation, the ICC shall recorded the settlement and forward to the employer or District Officer to take action.

• The copies of the settlement as recorded during conciliation shall be provided to the both the parties.

• The ICC shall after completing the enquiry, submit its recommendations to the Management with recommendations of the penalty to be imposed.

• In case no settlement is arrived the ICC, shall, where the Respondent is an employee, proceed to make inquiry into the complaint in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed.

• Where both the parties are employees, the parties shall, during the course of inquiry, be given an opportunity of being heard and a copy of the findings shall be made available to both the parties enabling them to make representation against the findings before the Committee.

• The submission of the recommendations by the ICC to the Management shall be completed within a period of ninety days (90) from the date of receipt of the complaint by the ICC.

• The HR/Personnel/Administrative Department should extend full cooperation in facilitating the proceedings by the ICC.

Before initiating an inquiry, the ICC or LCC may, at the request of the aggrieved woman, take steps to arrive at a settlement between the parties. However, under Sec. 10(1) no monetary settlement can be made as the basis of such conciliation

In case the ICC or LCC is of the view that a malicious or false complaint has been made, it may recommend that a penalty be levied on the complainant in accordance with the applicable service rules (Section – 14). However, an inquiry must be also made. Mere inability to substantiate a complaint will not attract action under the provisions of this act.

6. Possible Outcomes (Situations) Of A Sexual Harassment Complaint Can Be As Under:

• In furtherance to point c, if the accused accepts his fault, then the administration can seek his resignation taking into priority consideration the view of the complainant.

• Another situation can be that the complainant seeks to take legal action against the accused. If the complainant is not content with resignation alone, the ICC should initiate due process of law under the Act.

• The accused after initiation of enquiry might accept the charges, in such a case the enquiry should be duly closed stating the reasons. The complainant should be taken into confidence while giving out the decision.

• The fourth scenario can be the accused does not accept the charges against him and refuses to resign.

This brings us to the seventh part of our analysis:

7. HOW TO HANDLE FALSE COMPLAINTS

If the woman is unable to substantiate her accusation, it would not be termed as a false compliant and would not be a ground to initiate an action against the women. In essence, to show that the complaint was false, the accused person has to prove either of the 2 ingredients above, mere acquittal from the accusation is not enough.

Further, as per section 16, this Act is specially kept outside the purview of RTI Act. The details of false / fabricated cases will not be available and cannot be made public. The identity of the woman is protected even if she has filed a false case.

Therefore, the punishment prescribed for false cases is not a deterrent, due to the following reasons –

• Proving that the accusation was false is very difficult, as it can be done only if complaint is filed on the back of forged documents or with malicious intent. Both these ingredients are difficult to prove. Further, if the woman is unable to substantiate her complaint it does not amount to a false allegation.

• The identity of the woman is protected even if she files a false case. Hence, even if she loses her job due to a false allegation, her identity cannot be disclosed to the public and there is no backlash for her. She may move further and take up employment easily at another organization. The situation is completely different for the man, his identity is made public and he is open to media trials (even in case of false complaints). In case he loses his job, finding another one will be almost impossible.

8. HOW THE MACHINERY WORKS?

The Vishakha Judgment has laid down that appropriate action needs to be taken by employers, and that may include informing appropriate authorities about the complaint. In any case a strict guideline cannot be applied in such cases. The committee can on the basis of the gravity of the complaint decide as and when it need be reported. Foremost, the ICC should take the complainant into confidence and both the parties involved should be involved in the process to maintain transparency. This helps keep the matter unbiased. A balance has to be struck to balance transparency and protecting the identity of the complainant and the alleged accused.

If the complaint involves only allegations of Physical contact, request for sexual favors, showing pornography, sexually colored remarks, voyeurism or stalking it would amount to charges which are bailable in nature. On the other hand use of criminal force will invite non- bailable charges and in such a case the accused should seek anticipatory bail[3] at the first instance. The accused should try and protect oneself.

The second step involves collecting handwritten copy of the F.I. R if the original copy of the F.I.R cannot be obtained. The copy holds legal weight only if it is substantiated by an affidavit by the person copying it. This helps the wrongly accused in taking necessary steps to protect his interests. The accused further has the option of requesting High Court to quash the F.I.R on the basis of the handwritten copy of F.I.R.

Finally, the accused has the option of fighting out the case. Though, it goes without saying that fighting out legal battles is tiresome and lengthy process. On top of it proving the case, where the accused has to prima facie prove his innocence requires mettle and patience.

It is debatable, whether in case of false sexual harassment case, is it sensible to pay money and get out of the trouble.

It is definitely not an ethical step by any standards, but we are not living in utopia. It is for the accused to decide, if he wants to pay and avoid jail in lieu of ethics and principles or he wants to stand by the principles and fight out the case.

There have been instances where people wrongly accused have fought the case and won.

The bottom line is there is no straightjacket formula to avert such scenarios. Though, the employers should conduct awareness programs and comply with the laws. The least the employers can do is take a tough stand in the first instance and set it as an example for other employees to follow. The employees can at the same time self analyse their behavior and self-introspection is going to go a long way in preventing fallout.

The employer and employees can never be too cautious when it comes to professional misconduct at workplaces. The employers would certainly not want their licenses cancelled just because some contract worker had passed a sexually colored remark to a maid. The employees would also not want their job terminated, as apart from losing their job it also marks a stigma on their professional profile, which would inadvertently lead to them facing troubles in finding a decent job again.

The act has done well in inculcating more than what was given in the landmark Vishakha Judgment. The application of the Act and Rules is going to further lend support to the act and clarify few lacunas which remain.

Until such time, companies are well advised to use this time to reorganize themselves in order to comply with their obligations under the Act.