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Prevention of Sexual Harassment
at
Workplace in India
by
K Rajasekharan
Advocate , Thrissur Bar
Mobile : 9496125452
1
The Statutes on Prevention of Sexual Harassment
 The Sexual Harassment of Women at Workplace
( Prevention , Prohibition and Redressal) Act 2013 &
 The Sexual Harassment of Women at Workplace
( Prevention , Prohibition and Redressal) Rules 2013
 The law replaced the Vishaka Guidelines 1997 of the
Supreme Court
2
Timeline of the Law
 Lok Sabha initially passed the bill, with no debate, on
3rd
Sep 2012
 Rajya Saha passed it on 26th
February 2013
 Lok Sabha again passed it with minor changes on 11th
March 2013
 The bill got President’s assent on 22 April 2013
 The Rules 2013, were issued on 9 December 2013
 The act and rules, as the government notified, came
into force on 9th Dec 2013
3
Precise Object of the Law
No woman shall be
subjected to sexual
harassment at any
workplace in India
No woman shall be
subjected to sexual
harassment at any
workplace in India
4
What Constitutes Sexual Harassment
 It includes unwelcome sexual behavior of direct or implied
nature such as:
• Physical contact & advances
• Request for sexual favours
• Sexually colored remarks
• Showing pornography &
• unwelcome physical, verbal or non-verbal sexual conduct
 If the complainant had welcomed the respondent’s conduct,
the incident cannot fall under sexual harassment
5
Essential Ingredients of Sexual Harassment
Must be
unwelcome
Must be
unwelcome
Sexual in
nature
Sexual in
nature
Must occur at
Workplace
Must occur at
Workplace
6
File Criminal Case for Criminal Harassment
7
This Law Provides a
Civil Remedy
If the Harassment is
Criminal, File a Complaint
with the Police for action
under IPC 354 /509
Barring of Courts
 No court can take cognisance of an offence
punishable under this act except on a complaint
made by the aggrieved or on her behalf
 Every offence under this law shall be non-cognisable
 It means, no police officer can take suo moto action
on it without any direction from a judicial magistrate
8
Kinds of Workplace Harassment
Hostile Work
Environment
Hostile Work
Environment
Quid Pro Quo
Environment
Quid Pro Quo
Environment
9
Hostile Work Environment means
 Creating an intimidating work environment &
humiliating treatment that affect health/safety of
woman
 A pervasive sexual harassment that makes the work
environment 'hostile'
 The sexist remarks, display of pornography or
sexist/obscene graffiti, physical contact/brushing
against women create hostile work environment
10
Quid Pro Quo Sexual Harassment means
 Implied/explicit promise of preferential treatment in
job
 threat of detrimental nature & threat to job
 sexual favours or advances in exchange for benefits
 Using a sexually explicit behaviour or speech as a
condition for providing employment
 Any retaliatory action such as dismissal, demotion,
difficult work conditions on a refusal to comply with a
'request'
11
‘Workplace’ means
 organizations, departments, institutions, office,
branch unit etc. in the public/private sector, both
organized and unorganized,
 hospitals, nursing homes, educational institutions,
sports institutes, stadiums, sports complex,
 NGOs, trusts, cooperatives, societies , service
providers &
 any place visited by the employee in the course of
employment including transportation
12
‘Employer’ means
 the head or
 the person responsible for formulation &
administration of policies of the workplace
 the person discharging contractual obligations with
respect to his/her employees and
 For a domestic worker, the person who benefits
from that employment
13
Kinds of Employees Covered
 regular/temporary/ad-hoc/daily wage employees,
whether for remuneration including volunteers
 Contractual worker, probationer trainee apprentice
etc
14
Every Woman at Workplace Covered
 The act covers all women
 in the organised or unorganised sectors
 public or private and
 clients, customers and domestic workers
 irrespective of their age or employment status
15
Responsibilities of the Employer
 To prohibit sexual harassment as part of service rules
 To formulate & disseminate a no-harassment
 The Policy should state what constitutes sexual
harassment & the procedures to process a complaint
 To provide safe no-harassment work environment
 To take preventive measures
 To conduct sensitization programmes to
stakeholders
 To declare contact details of the Complaint
Committee
16
Steps Employers must Take
 Prohibit sexual harassment & its penalties in the
rules & publicise it
 Private employers should include the prohibition in
the standing orders under the Industrial Employment
(Standing Orders) Act, 1940 or its equivalent
 Provide work conditions in respect of work, leisure,
health and hygiene with no hostile environment
towards women
 Ensure attendance of the respondent for enquiry
 Support the complainant to file criminal petition
17
No-Harassment Policy & Outlining of Procedures
 A no-sexual harassment policy to be instituted in every
organisation
 It is a declaration to prevent, prohibit or eradicate sexual
harassment &
 An explanation of penalties, including termination of
service, the employer will impose for sexual harassment
&
 with a detailed outline of the grievance handling
procedures
18
No-Harassment Policy Should State
 that anyone found guilty of harassment after
investigation will be put to disciplinary action
 should lay down strict rules regarding harassment of
or by third parties like clients, customers etc.
 an express provision to keep all sexual harassment
complaints and procedures confidential & time
bound
19
Employer to get punishment for Dereliction
 Every employer should create an environment free
from sexual harassment
 An employer will be liable to a fine of Rs 50,000 in
case of any violation of this act
 In subsequent violations, the amount of fine will get
doubled &
 may lead to cancelation of his license or registration
of his firm
20
The Complaint Committee to be Set up
 It is mandatory to set up a Complaints Committee to
deal with incidents of sexual harassment
 The committee must be headed by a woman
 Half of its members should be women &
 It should include a third-party representative from an
NGO/an agency conversant with the subject
 A member of the committee must have 5 years
experience in social service or be familiar with
labour, service, civil or criminal law
21
On Complaint Committee
 Two kinds of committee for different types of
organization are provided for in the law
 An Internal Complaints Committee (ICC), at least a 5
member committee at all workplaces employing 10 or
more workers
 A Local Complaints Committee (LCC). A five-member
committee at the district level for handling complaints
from workplaces employing less than 10 workers
 When the complaint is against the employer, it will be
handled by LCC
22
A Domestic worker can file a complaint
 A domestic worker is one employed for household
work for remuneration
 They can approach the LCC in case of any complaint
 Relatives of the employer cannot file a complaint
23
Procedures for Filing a Complaint
 A complaint shall include 6 copies with supporting
documents
 The complaint committee should send one copy to
the respondent within 7 working days to get a reply
 The respondent has to file his reply within 10
working days
 The complaint committee has to inquire into the
complaint, with principles of natural justice
24
On Preparing a Complaint
 Be specific about the incident
 Don’t make any general allegations such as the officer
harassed me.
 Tell exactly what happened with details, dates, witnesses &
documents
 Be honest, don’t lie, as the complainant can be sued for lying
or false submission
 Also, request what the complainant wants like, “I want the
head to reassign me to a different officer”
 The employer need not have to accept her suggestion, but
her input would be helpful
25
Time Limit for Filing a Complaint
 A complaint of sexual harassment needs to be filed within 3
months
 The period may extend to another 3 months, in grave
circumstances that prevented her from filing the complaint in
time
26
Provision for Conciliation
 The ICC/LCC can take steps to settle the matter
between the aggrieved woman & the respondent,
 This option will be used only at the request of the
woman
 Monetary settlement shall not be the basis of
conciliation
 If the settlement is not reached, the complainant can
go back to the Committee & initiate an inquiry
27
If Prima facie Criminal Case Exist
 If the complaint discloses a criminal offence, the
committee should pass on the complaint within 7
days to the police for criminal action under IPC
 Crime can be charged under IPC 509 or any other
section as the incident discloses
28
Period of Inquiry & Action
 The Committee is required to complete the inquiry
within 90 days
 On completion of the inquiry, the report should be
sent to either the employer or the District Officer
within 10 days of its completion
 they are mandated to take action on the report
within 60 days
 If allegation is not proved the committee to send a
report stating that no action is required
29
Interim Action During Inquiry
 The aggrieved or the respondent can be transferred
to avoid face to face contact
 Grant leave to the aggrieved up to 3months
 Other reliefs to the aggrieved as prescribed in the
rules
 The employer should implement the above
recommendation and inform the committee about it
30
Committee Should Recommend Actions
 against the respondent as per the rules in force
 It may be a deduction of an appropriate sum from the
respondent’s salary or asking him to pay the sum
 If the amount is not paid, it can be recovered as an
arrear of land revenue
 The committee can recommend for restraining the
respondent from supervision of complainant’s work
31
If No Rules on Punishment Framed
 If the institution has not framed its own rules for
punishment, the complaint committee can
recommend an appropriate punishment
 Such a punishment can be a written apology, a
warning, a reprimand or censure, withholding of
promotion/pay rise/increments, termination from
service, subjecting to counselling or forcing to do
community service.
32
On Arriving at the Amount to be Paid
The complaints committee should consider the
following factors:
• the trauma, pain or distress caused
• The loss of career opportunity due to the incident
• Medical expenses incurred
• Income of the respondent
• Feasibility of such payment in lumsum etc.
33
Dealing with a False/Malicious Complaint
 If complaint is false with malicious intent, the
complainant can be penalized as per the Service
Rules
 An enquiry to de conducted prior to establishing
malicious intent
 Mere inability to prove a complaint will not attract
penalty
 Any malicious complaint by a woman will attract the
same punishment, a man who has been found guilty
of the offence at the workplace suffers
34
Prohibits Disclosure of Identity
 Prohibits disclosure of the identity & address of the
aggrieved woman respondent and the witness
 Anyone who discloses the name or identity of the
aggrieved woman or witnesses will be liable to pay a
penalty of Rs 5,000
 But information regarding the justice secured to any
victim, without disclosing the identity, can be
publicised
35
Ex-Parte Decision
 The complaints committee can terminate the inquiry
proceedings or give an ex-parte decision,
 if the complainant or the respondent fails, without
sufficient cause, to present herself or himself for
three consecutive hearings
 Ex-parte or termination order will not be passed
without giving the complainant/respondent a 15-day
notice in writing
36
The Law Recognizes
 Gender equality under Article 14 of the Constitution
of India and
 The right to life & live with dignity under Article 21 of
the Constitution
 Which, in essence, includes a right to a safe
environment free from sexual harassment
37
The Law Lays down
 a uniform procedure for conducting an enquiry into
the complaint on sexual harassment
 across a very wide range of employers
 including the government, armed forces, private
organized sector as well as the unorganized sector
such as agriculture, domestic work, construction
work and the service industry
38
Civil suit for damages
 Civil suit may survive for damages under tort laws
 For mental anguish, physical harassment, loss of
income and employment caused by the sexual
harassment
39
Creating Awareness on Preventive Measures
 Employers must disseminate sexual harassment
prevention policy
 organize workshops on the provisions of the law &
 Conduct employees awareness programmes at
regular intervals for sensitizing all stakeholders about
the procedures
 Provide and publicise contact details of the members
of the Internal complaints committee
40
In Conclusion
 The law makes sexual harassment at workplace a
legal wrong
 It aims at man-woman harmony at work place
 It aims to build up confidence amongst female
employees to stand up against harassment
 It makes the employer duty-bound to ensure a
harassment-free atmosphere for woman to enhance
work productivity
41
42

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Prevention of Sexual Harassment at Workplace in India

  • 1. Prevention of Sexual Harassment at Workplace in India by K Rajasekharan Advocate , Thrissur Bar Mobile : 9496125452 1
  • 2. The Statutes on Prevention of Sexual Harassment  The Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal) Act 2013 &  The Sexual Harassment of Women at Workplace ( Prevention , Prohibition and Redressal) Rules 2013  The law replaced the Vishaka Guidelines 1997 of the Supreme Court 2
  • 3. Timeline of the Law  Lok Sabha initially passed the bill, with no debate, on 3rd Sep 2012  Rajya Saha passed it on 26th February 2013  Lok Sabha again passed it with minor changes on 11th March 2013  The bill got President’s assent on 22 April 2013  The Rules 2013, were issued on 9 December 2013  The act and rules, as the government notified, came into force on 9th Dec 2013 3
  • 4. Precise Object of the Law No woman shall be subjected to sexual harassment at any workplace in India No woman shall be subjected to sexual harassment at any workplace in India 4
  • 5. What Constitutes Sexual Harassment  It includes unwelcome sexual behavior of direct or implied nature such as: • Physical contact & advances • Request for sexual favours • Sexually colored remarks • Showing pornography & • unwelcome physical, verbal or non-verbal sexual conduct  If the complainant had welcomed the respondent’s conduct, the incident cannot fall under sexual harassment 5
  • 6. Essential Ingredients of Sexual Harassment Must be unwelcome Must be unwelcome Sexual in nature Sexual in nature Must occur at Workplace Must occur at Workplace 6
  • 7. File Criminal Case for Criminal Harassment 7 This Law Provides a Civil Remedy If the Harassment is Criminal, File a Complaint with the Police for action under IPC 354 /509
  • 8. Barring of Courts  No court can take cognisance of an offence punishable under this act except on a complaint made by the aggrieved or on her behalf  Every offence under this law shall be non-cognisable  It means, no police officer can take suo moto action on it without any direction from a judicial magistrate 8
  • 9. Kinds of Workplace Harassment Hostile Work Environment Hostile Work Environment Quid Pro Quo Environment Quid Pro Quo Environment 9
  • 10. Hostile Work Environment means  Creating an intimidating work environment & humiliating treatment that affect health/safety of woman  A pervasive sexual harassment that makes the work environment 'hostile'  The sexist remarks, display of pornography or sexist/obscene graffiti, physical contact/brushing against women create hostile work environment 10
  • 11. Quid Pro Quo Sexual Harassment means  Implied/explicit promise of preferential treatment in job  threat of detrimental nature & threat to job  sexual favours or advances in exchange for benefits  Using a sexually explicit behaviour or speech as a condition for providing employment  Any retaliatory action such as dismissal, demotion, difficult work conditions on a refusal to comply with a 'request' 11
  • 12. ‘Workplace’ means  organizations, departments, institutions, office, branch unit etc. in the public/private sector, both organized and unorganized,  hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex,  NGOs, trusts, cooperatives, societies , service providers &  any place visited by the employee in the course of employment including transportation 12
  • 13. ‘Employer’ means  the head or  the person responsible for formulation & administration of policies of the workplace  the person discharging contractual obligations with respect to his/her employees and  For a domestic worker, the person who benefits from that employment 13
  • 14. Kinds of Employees Covered  regular/temporary/ad-hoc/daily wage employees, whether for remuneration including volunteers  Contractual worker, probationer trainee apprentice etc 14
  • 15. Every Woman at Workplace Covered  The act covers all women  in the organised or unorganised sectors  public or private and  clients, customers and domestic workers  irrespective of their age or employment status 15
  • 16. Responsibilities of the Employer  To prohibit sexual harassment as part of service rules  To formulate & disseminate a no-harassment  The Policy should state what constitutes sexual harassment & the procedures to process a complaint  To provide safe no-harassment work environment  To take preventive measures  To conduct sensitization programmes to stakeholders  To declare contact details of the Complaint Committee 16
  • 17. Steps Employers must Take  Prohibit sexual harassment & its penalties in the rules & publicise it  Private employers should include the prohibition in the standing orders under the Industrial Employment (Standing Orders) Act, 1940 or its equivalent  Provide work conditions in respect of work, leisure, health and hygiene with no hostile environment towards women  Ensure attendance of the respondent for enquiry  Support the complainant to file criminal petition 17
  • 18. No-Harassment Policy & Outlining of Procedures  A no-sexual harassment policy to be instituted in every organisation  It is a declaration to prevent, prohibit or eradicate sexual harassment &  An explanation of penalties, including termination of service, the employer will impose for sexual harassment &  with a detailed outline of the grievance handling procedures 18
  • 19. No-Harassment Policy Should State  that anyone found guilty of harassment after investigation will be put to disciplinary action  should lay down strict rules regarding harassment of or by third parties like clients, customers etc.  an express provision to keep all sexual harassment complaints and procedures confidential & time bound 19
  • 20. Employer to get punishment for Dereliction  Every employer should create an environment free from sexual harassment  An employer will be liable to a fine of Rs 50,000 in case of any violation of this act  In subsequent violations, the amount of fine will get doubled &  may lead to cancelation of his license or registration of his firm 20
  • 21. The Complaint Committee to be Set up  It is mandatory to set up a Complaints Committee to deal with incidents of sexual harassment  The committee must be headed by a woman  Half of its members should be women &  It should include a third-party representative from an NGO/an agency conversant with the subject  A member of the committee must have 5 years experience in social service or be familiar with labour, service, civil or criminal law 21
  • 22. On Complaint Committee  Two kinds of committee for different types of organization are provided for in the law  An Internal Complaints Committee (ICC), at least a 5 member committee at all workplaces employing 10 or more workers  A Local Complaints Committee (LCC). A five-member committee at the district level for handling complaints from workplaces employing less than 10 workers  When the complaint is against the employer, it will be handled by LCC 22
  • 23. A Domestic worker can file a complaint  A domestic worker is one employed for household work for remuneration  They can approach the LCC in case of any complaint  Relatives of the employer cannot file a complaint 23
  • 24. Procedures for Filing a Complaint  A complaint shall include 6 copies with supporting documents  The complaint committee should send one copy to the respondent within 7 working days to get a reply  The respondent has to file his reply within 10 working days  The complaint committee has to inquire into the complaint, with principles of natural justice 24
  • 25. On Preparing a Complaint  Be specific about the incident  Don’t make any general allegations such as the officer harassed me.  Tell exactly what happened with details, dates, witnesses & documents  Be honest, don’t lie, as the complainant can be sued for lying or false submission  Also, request what the complainant wants like, “I want the head to reassign me to a different officer”  The employer need not have to accept her suggestion, but her input would be helpful 25
  • 26. Time Limit for Filing a Complaint  A complaint of sexual harassment needs to be filed within 3 months  The period may extend to another 3 months, in grave circumstances that prevented her from filing the complaint in time 26
  • 27. Provision for Conciliation  The ICC/LCC can take steps to settle the matter between the aggrieved woman & the respondent,  This option will be used only at the request of the woman  Monetary settlement shall not be the basis of conciliation  If the settlement is not reached, the complainant can go back to the Committee & initiate an inquiry 27
  • 28. If Prima facie Criminal Case Exist  If the complaint discloses a criminal offence, the committee should pass on the complaint within 7 days to the police for criminal action under IPC  Crime can be charged under IPC 509 or any other section as the incident discloses 28
  • 29. Period of Inquiry & Action  The Committee is required to complete the inquiry within 90 days  On completion of the inquiry, the report should be sent to either the employer or the District Officer within 10 days of its completion  they are mandated to take action on the report within 60 days  If allegation is not proved the committee to send a report stating that no action is required 29
  • 30. Interim Action During Inquiry  The aggrieved or the respondent can be transferred to avoid face to face contact  Grant leave to the aggrieved up to 3months  Other reliefs to the aggrieved as prescribed in the rules  The employer should implement the above recommendation and inform the committee about it 30
  • 31. Committee Should Recommend Actions  against the respondent as per the rules in force  It may be a deduction of an appropriate sum from the respondent’s salary or asking him to pay the sum  If the amount is not paid, it can be recovered as an arrear of land revenue  The committee can recommend for restraining the respondent from supervision of complainant’s work 31
  • 32. If No Rules on Punishment Framed  If the institution has not framed its own rules for punishment, the complaint committee can recommend an appropriate punishment  Such a punishment can be a written apology, a warning, a reprimand or censure, withholding of promotion/pay rise/increments, termination from service, subjecting to counselling or forcing to do community service. 32
  • 33. On Arriving at the Amount to be Paid The complaints committee should consider the following factors: • the trauma, pain or distress caused • The loss of career opportunity due to the incident • Medical expenses incurred • Income of the respondent • Feasibility of such payment in lumsum etc. 33
  • 34. Dealing with a False/Malicious Complaint  If complaint is false with malicious intent, the complainant can be penalized as per the Service Rules  An enquiry to de conducted prior to establishing malicious intent  Mere inability to prove a complaint will not attract penalty  Any malicious complaint by a woman will attract the same punishment, a man who has been found guilty of the offence at the workplace suffers 34
  • 35. Prohibits Disclosure of Identity  Prohibits disclosure of the identity & address of the aggrieved woman respondent and the witness  Anyone who discloses the name or identity of the aggrieved woman or witnesses will be liable to pay a penalty of Rs 5,000  But information regarding the justice secured to any victim, without disclosing the identity, can be publicised 35
  • 36. Ex-Parte Decision  The complaints committee can terminate the inquiry proceedings or give an ex-parte decision,  if the complainant or the respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings  Ex-parte or termination order will not be passed without giving the complainant/respondent a 15-day notice in writing 36
  • 37. The Law Recognizes  Gender equality under Article 14 of the Constitution of India and  The right to life & live with dignity under Article 21 of the Constitution  Which, in essence, includes a right to a safe environment free from sexual harassment 37
  • 38. The Law Lays down  a uniform procedure for conducting an enquiry into the complaint on sexual harassment  across a very wide range of employers  including the government, armed forces, private organized sector as well as the unorganized sector such as agriculture, domestic work, construction work and the service industry 38
  • 39. Civil suit for damages  Civil suit may survive for damages under tort laws  For mental anguish, physical harassment, loss of income and employment caused by the sexual harassment 39
  • 40. Creating Awareness on Preventive Measures  Employers must disseminate sexual harassment prevention policy  organize workshops on the provisions of the law &  Conduct employees awareness programmes at regular intervals for sensitizing all stakeholders about the procedures  Provide and publicise contact details of the members of the Internal complaints committee 40
  • 41. In Conclusion  The law makes sexual harassment at workplace a legal wrong  It aims at man-woman harmony at work place  It aims to build up confidence amongst female employees to stand up against harassment  It makes the employer duty-bound to ensure a harassment-free atmosphere for woman to enhance work productivity 41
  • 42. 42