Sexual Harassment at Workplace
Honey Chandnani, Vivekanand Education Society’s College of Law, Mumbai
“If all men are born free, how is it that all women are born slaves?”- Mary Astel
As a woman we have at some points in our life been exposed to misogyny, sexism, bullying by male superiors Sexual Harassment is nothing less than showcasing male dominance. As the role of women has shifted from household work to the commercial world, offences against her have also increased.
Dilemmas and Internal Struggle of women:-
Bhawna, a young girl joined a Private Firm as a fresher. Within a few days, her boss started to give her undue attention and would make her stay late at work alone with him. Bhavna started to feel uncomfortable as he would often try to come close to her. One day, he tried to physically assault her but she escaped. She didn't understand how to react or whom to reach out to, as there was no one she was familiar with and there was no formal Cell that addressed Sexual Harassment. She was also worried that she may lose her job if she complains about this to anyone.
What should a female employee do if she has been sexually harassed?
As in the above illustration of Bhavna, we have seen that many times women don’t speak up and raise issues relating to sexual harassment because either they have fear of losing jobs or don’t have any support to raise an action against the harasser. Here are the few points that one should follow when they are a victim of sexual harassment and don’t know the actions that are needed to be taken
1. Speak out: - The woman should preferably discuss this with her colleagues or some other person so that the act does not go unnoticed. This would not make the offender repeat the act with the women or any other women. Talking about the issue would help her to take effective steps to control the action at the initial stage itself.
2. Keep records: - A track record of the happening should be kept in a document with the date, time and an account of the incident.
3. Report of the complaint: - The victim should make a formal complaint to the seniors regarding sexual harassment. If there is a complaint mechanism in the organization then the complaint should be made to the designated person and proper complaint procedure should be followed as prescribed by that complaint mechanism. If there is no complaint mechanism in the organization then the woman should report it to the employer or any senior official.
4. File a police complaint: - The woman should file a police complaint so that the offender does not repeat the offence of sexual harassment and the act should not go unpunished.
5. File a complaint with a women commission: - A woman can also file a complaint with the women mechanism and investigation cell of the women commission that would ensure that the investigation by the police is monitored. Many times an inquiry committee is set up which calls for the evidence and witnesses and makes enquiries which provide immediate reliefs for the victim of violence.
Remedies of Sexual Harassment at the workplace (Legal position):-
1. Protection of Constitutional Rights:-
Each incident of sexual harassment at workplace results in a violation of Fundamental rights i.e. Right to equality and Right to Life and Liberty the two most precious Fundamental rights guaranteed by the Constitution of India. It is a clear violation of the right to equality (Article 14), right against discrimination on sex (Article 15), right to practice any profession, occupation or trade (Article 19(1)(g) and right to life and liberty (Article 21). Our constitution guarantees every woman the right to employment and sexual harassment at a workplace curtails the enjoyment of this right.
Article 19(1) (g) of the Constitution guarantees every individual the right to “practice any profession or to carry any occupation, trade or business. Sexual Harassment at workplace bring the women at an inequitable position as compared to the male employees and ultimately violates her right to employment. The fundamental right to carry on any occupation, trade or profession depends on the availability of the safe working environment.
It also violates Article 21 i.e. Right to life and personal liberty. Right to livelihood is violated in case of sexual harassment. The safe working environment is essential for the exercise of the right to work and right to live with dignity. Sexual harassment at workplace violates their sense of dignity and the right to earn with living with dignity.
2. Guidelines Provided by Supreme Court for prevention of sexual harassment and what should be done:-
1) It shall be the duty of the employer or other responsible persons in workplaces to prevent the acts of the sexual harassment and to provide the procedures for resolution, settlement and acts to take against the sexual harassment
2) Rules and Regulations of Government and Public sector relating to conduct and discipline should include rules prohibiting Sexual Harassment and provide appropriate penalties against the offender.
3) In private sectors, the employer should take the steps to include the prohibition of sexual harassment in the Industrial Employment (Standing Orders) Act, 1946.
4) Appropriate working conditions for work, leisure, health and hygiene and she should not have reasonable grounds to believe that she is disadvantaged.
5) It shall be the duty of the employer to initiate actions against the offender under the Indian Penal Code and the employer should initiate the appropriate action in accordance with law by making a complaint with the appropriate authority.
6) The employer should create an appropriate complaint mechanism in the organization for redress of the complaint made by the victim.
7) The complaint committee would maintain confidentiality and would be headed by a woman and not less than half of its members should be women. The complaint committee would also include an NGO who is familiar with the issue.
8) Employees should be allowed to raise issues relating to sexual harassment at the meetings and appropriate forums.
9) Awareness should be created regarding the rights of female employees by notifying the guidelines in a suitable manner.
10) The central and state government requested every organization both organized and unorganized to apply these guidelines.
3. Protection Under Indian Penal Code, 1860
Indian Penal Code, 1860 is used to punish the offender with respect to the nature of the act committed by him.
The following sections of the Indian Penal Code, 1860 covers acts of sexual harassment:-
Section 354- Assault or criminal force on a woman with intent to outrage her modesty.
The terms assault here means to cause a physical attack. It not only means that the victim is physically assaulted but also includes verbal acts as well as gestures of a person intending to outrage the modesty of a woman. So any woman who feels that any person who is intending to outrage her modesty through his intentions, for example, pulling a saree, removing her saree and asking for sexual favours this would ultimately lead to sexual assault.
Section 354A- Sexual Harassment and punishment for Sexual Harassment
When a man is trying to maintain physical contact or is asking for sexual favours, forcefully making the woman watch pornography, making sexually coloured remarks will be liable under Sexual Harassment and will be punished with an imprisonment of not less than 3 years or fine or with both.
Section 509- Deals with words Word, gesture or act intended to outrage the modesty of women
The object of this section is to protect the modesty of the women and this can be identified when he is trying to insult by words or gestures which are heard or seen by women or when the privacy of the woman is affected or induced.
4. Remedies for a woman under Protection of Women from Sexual Harassment Act, 2013
This Act provides for effective complaints and redressal mechanisms. Under this Act, every employer is required to create Internal Complaint mechanism at every office or mechanism having more than 10 employees which are known as internal complaint mechanism which shall consist of presiding officers and other two members will be women who have the legal knowledge and the other member from the NGO. Local complaint committee is to be formed if the ICC is not formed where there are less than 10 employees and the complaint is against the employer itself. A written complaint needed to be filed within 3 months from the date of the incident.
The issues related to sexual harassment are very sensitive and require an understanding, assessment and commitment to redress the grievance. In most of the organizations, the female employees are not aware of the existing policies or remedial measures within the organization. Many women also chose the convenient path of compromising a lot about consequences whereas very few who feel that their self-respect is a non- negotiable entity stand up against it. Be happy that you come in that elite list of very few women who speak up.