Sexual harassment at Workplace: serious lapses
Author: Shivangi Singh Student of Christ University
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Abstract – Even after ten years of the POSH Act, directions were issued by the Supreme Court of India to check whether the Union, States, and Union Territories had formed Internal Complaint Committees and that the panel composition strictly followed the guidelines under the Act. Year after year, a new report suggests that sexual harassment complaints are spiking in Indian companies at an alarming rate.
Background of the Act
Back in 1992, a Dalit woman named Bhanwari Devi, a social worker working for the Rural Development Programme for the Government of Rajasthan, was gang raped by five men after she tried to prevent the marriage of a one-year-old girl. The Court drew its conclusion from various provisions of the Constitution, which includes Article 15 (against discrimination based on grounds only of religion, place of birth, race, sex and caste, meanwhile concluding relevant international conventions to eliminate any discrimination that discriminates women, CEDAW which was ratified by India in 1993, International Labour Convention on Discrimination ( Employment and Occupation ) Convention ( NO. C111 ) ratified by India on 3 June 1960. To provide a platform for the grievance and redressal mechanism for the hazards faced by the working women during their employment.
In India, to combat Workplace sexual harassment at Workplace, the framework was laid down by Vishaka v. State of Rajasthan (1997), acting as a landmark judgement; for its implementation, the apex court intervenes for follow-up directions multiple times.
Earlier Developments
Without any statutory remedy to address this concern, Section 354 for Outraging the Modesty of a Woman and Section 509 for Insulting the Modesty of a Woman were the only sections under the Indian Penal Code.
Under section 2(n) of the Sexual Harassment of Women at Workplace Act, 2013, what constitutes sexual harassment is defined by the Vishaka Guidelines brought up the need to define sexual harassment. General Recommendation 19 to the CEDAW Convention. ‘Sexual Harassment’ includes any such unwelcome sexually-determined behaviour (whether direct or indirect) like :
Physical contact and advances
Showing pornography
Any sexual conduct which affects the health and safety of a woman
A demand or request for sexual favours
Sexually-coloured remarks
Any sexual acts carried out which is directly related to the victim’s employment or work.
Any other unwelcome physical, whether verbal or nonverbal, conduct of a sexual nature.
Conduct that can be humiliating for the woman. It also points to five circumstances which would constitute sexual harassment if connected to the acts mentioned above – (i) promise, whether implied or explicit, preferential treatment in the employment (ii) detrimental treatment threat in employment whether implied or explicit (iii) present or future employment status threat whether implied or explicit (iv) Interference with work or creating an intimidating or hostile or interference with work offensive or work environment and (v) Humiliating treatment which is likely to affect health or safety.
Section 2(o) of the PoSH Act defines Workplace. Three criteria to determine the workplace constitution were laid down in the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008) –
1. That the residence is an extension or contiguous part of the working place,
2 Proximity from the place of work and
3. Management control over the place/residence where the working woman is residing.
Complaints committee
A. Internal Complaints Committee
constituted at all offices and administrative units of the company, and after the appointment, the complaints committee policy details have to be notified to all persons at the Workplace. It further consists of – i) Presiding officer
ii) Internal Members
iii) External Members
iv) 50% Women
B. Local Complaints Committee under section 5 of the POSH Act- set up at the district level by the district government to redress and investigate from the unorganized sector of establishments where the ICC has not been constituted, having less than ten employees or if the complaint is against the employer.
C. Powers of the ICC, as per section 11 (3), are the same as that of a civil court and thus,
i) requiring the discovery and production of documents
ii) enforcing and examining him on oath and summoning the attendance of any person; and
iii) any other matter which might be prescribed
D. Functions of the Internal Complaints Committee is –
i) recommendation of actions to be taken by the employer
ii) To resolve complaints based on the guidelines by the aggrieved of the Internal Complaints Committee Policy
iii) Implementation of the policies being laid down by the Internal Complaints Committee Policy for the prevention of sexual harassment
Responsibilities of the Internal Complaints Committee – POSH law allows every organization to simultaneously publish the details and names of the current IC members at prominent places on the premises on their official website. However, the primary responsibility is –
i) Coordinate with employers to implement appropriate action.
ii) To initiate and conduct an inquiry when needed, as per the company’s procedure
iii) To submit findings and recommendations of all such inquiries
iv) To receive complaints of sexual harassment at the Workplace
v) To submit annual reports in prescribed formats as per the prescription
vi) Due vigilance requirement to redress the sexual harassment complaints received and resolve them
vii) To maintain strict confidentiality throughout the process per established guidelines.
Conciliation
As per section 10 of the Posh Act, at the aggrieved woman’s request, the Internal Committee/Local Committee may attempt to resolve a complaint between the parties through conciliation by reaching an amicable settlement. This process of conciliation is an informal way to resolve complaints before they go for a formal investigation, with the possibility that the complaint gets resolved before the inquiry proceeding begins. However, monetary settlement should not be used as a means or basis of conciliation. Internal Committee or the Local committee should record the settlement to the aggrieved woman and the respondent; copies should be provided after the settlement is reached. Further, the IC may not investigate once the settlement is reached under the POSH Act.
Interim relief
The employer may be recommended interim measures as a response to a complaint by the Local Committee or Internal Committee, which includes –
i) It is prohibited for the respondent to report on the performance of the woman who filed the complaint or to write her confidential report, as delegation to another employee may happen;
ii) The aggrieved woman is allowed additional statutory or contractual leave for three months;
iii) Relocation of the aggrieved woman or the respondent to any other workplace.
Punishments and compensation
By the POSH Act, the employee might be punished in the following ways, by the employee for engaging in sexual harassment :
i) As per section 13 of the POSH Act, reduction of the respondent’s wages to pay compensation to the aggrieved woman;
ii) The punishment to be given be prescribed under the organization’s service rules and
iii) In case of absence of service rules in the organization, the disciplinary action may include a written apology, warning, reprimand, censure, withholding of pay rise or increment, withholding of promotion, terminating the respondent from service, performing community service, or undergoing a counselling session.
Section 15 of the POSH Act also provides compensation for aggrieved women. The following factors need to be taken into account to determine the compensation :
i) Whether the alleged perpetrator has a considerable status or a high income;
ii) Career opportunities loss caused by the sexual harassment;
iii) The expense incurred by the victim for the physical and mental health treatment
iv) The mental trauma, suffering, pain and emotional distress of the affected employee
v) Feasibility of lump sum or instalment payments
vi) The IC shall forward the order of recovery to the District Officer concerned if the respondent fails to pay the sum above.
Confidentiality –
Specifically, the statute stipulates that information about sexual harassment at the Workplace shall not be subject to the Right of Information Act, 2005 provisions. In such cases, the shared personal experiences and details by the parties involved can be empathetic and intimate, which, when subjected at large, could result in discrimination and humiliation. Therefore, as per section 16 of the POSH Act, the law states that confidentiality must be maintained concerning details of the incident, the identity of the victim, and the media and the public. The principle of natural justice is held as the respondent is given the right to all details of the complaint to respond to the complaint effectively; otherwise, it would lead to a violation of the principle that emphasizes that’ no man shall be condemned unheard ‘, principles such as Rule against bias and Audi alteram partem.
Impact of cases in India
Two significant cases followed the Vishaka case, which further. In 1999, the Supreme Court of India upheld the dismissal of a superior officer at the Export Promotion Council, a Delhi-based Apparel, for sexual harassment. This case, known as the Apparel Export Promotion Council v. A.K. Chopra, played a significant role in strengthening the legal framework surrounding workplace sexual harassment. It broadened the definition of sexual harassment and stated that physical contact is not always necessary for an act to be considered Workplace sexual harassment. Any unwelcome act can be seen as sexual harassment.
Further, in the Medha Kotwal Lele & Ors v. Union of India & Ors case of 2013, the Supreme Court emphasized the importance of states following the Vishaka Guidelines and ensuring their effective implementation. The Court also clarified that if the guidelines are not complied with, the victim or the aggrieved person can approach the High Court. Two significant cases followed the Vishaka case, further reinforcing the legal framework for combating Workplace sexual harassment. The dismissal of a superior officer of the Delhi-based Apparel Export Promotion Council for sexual harassment was upheld by the Supreme Court in the Apparel Export Promotion Council v. A.K. Chopra (1999). The Court broadened the definition of sexual harassment and stated that physical contact is not always necessary for an act to be considered Workplace sexual harassment. Any unwelcome act can be seen as sexual harassment.
The Supreme Court later, in the case of Medha Kotwal Lele & Ors v. Union of India & Ors in 2013, emphasized the importance of states following the Vishaka Guidelines and ensuring their effective implementation. The Court also clarified that if the guidelines are not complied with, the victim or the aggrieved person can approach the High Court.
Impact of the POSH Law
The three-fold effects of the law are as follows –
1 Quid Pro Quo Harassment: This Latin term loosely translates to ” this for that”. It happens when the power affects the employment decision ( such as demotion, performance evaluations, hiring, termination and decision about employee compensation upon submission or rejection of a sexual favour for someone. Signs of Quid Pro Quo Sexual Harassment are Favouritism in the organization, employee’s employment benefits not matching performance, A new employee stepping up the ladder quicker than they should, Managers being unreasonably protective about specific employees, Unexplained close relationships between supervisors and employees, and Competent employees not receiving the benefits they deserve.
The harassing behaviour can be either verbal ( physical, sexual advances or sexually offensive comments) or non-verbal ( being forced to watch offensive images ). The primary challenge in investigating such a situation is that it can be very subtle, and the chances of victim complaining about it are very low either because employees are being provided benefits or they have a fear of retaliation; the majority there is fear of losing the job.
2 Understanding the Unwelcome behaviour: Unwelcome behaviour was discussed in the Committee Report on Amendments to Criminal Law headed by late Justice J.S. Verma (Author of the Vishakha Judgement). One of the factors that shall be given due weightage shall be the subjective perception of the person making the complaint, as some state based on the ‘reasonableness’ of a woman; that is, subjective nature-based. However, the definition requires some clarification. Interpreting the word “unwelcome” contained in the said definition should give due weight to both subjective and objective criteria to ensure that women’s comfort levels and different perceptions are being appropriately protected.
3. Prevention of a hostile work environment – A woman’s sense of health, security, mental stability and safety is affected; when she is exposed to sexual harassment and advances, it simply damages her in the long run, which leads to her unhealthy life and instability. Examples: Name calling and gossiping about employees, Interfering with someone’s ability to move freely, Stalking and Manager casually making remarks about an employee’s body. It can be anyone in the organization responsible for creating a hostile work environment, such as a manager or supervisor, a contractor, a visitor, a client, or a co-worker.
Hurdles to Act’s implementation
Lack of expertise of the IC: Under article 226 of the Constitution, many enquiry reports are challenged in the High Courts by way of writ petition being filed, as IC have little to no experience in handling such judicial and sensitive complaints; although, the law has casted onus of implementation of rules and act on IC, given powers of Civil Court to examine the evidence and carry out the enquiry.
The Supreme Court called out lacunae in the ICC constitution in its recent judgement, citing the newspaper report that 16 out of 30 national sports federations in the country have not constituted an ICC to date, backdrop of the Wrestler’s protest in Delhi against the Wrestling Federation of India (WFI) headed by Brij Bhushan Sharan Singh being alleged for the acts of sexual harassment, it also flagged improper constitution either had an inadequate number of members or lacked a mandatory external member.
Stakeholders point out that the law is largely inaccessible to women workers in the informal sector. Around 80% are employed there. Corner office Harassment, Confidentiality, How to deal with electronic evidence, lack of concrete evidence, courts being more reluctant, fear of job loss, organization power dynamics, inefficient functioning and lack of clarity in the law, men and members of LGBTQIA+ also need protection.
Conclusion – It has given women a voice to voice their concerns, strengthened them, and created a safe workplace. Given the reputational and financial risks associated with the mishandling of complaints under this Act, the employers should take practical steps to generate awareness about their POSH Policy and to ensure its effective implementation across the organization, monitoring and amending it timely to mandate the appointment of at least one person with legal background.