Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013: A Critical Analysis

Aasawari Dogra & Nimrit Kaur Ahluwalia

Army Institute of Law, Mohali

Editor’s Note: The paper is a comprehensive analysis of the entire Sexual Harassment at the Workplace (Prevention, prohibition and Redressal) Act, of 2013 and also has recommendations from the author.”

Abstract:

Over the years, women in our society have been subjected to various injustices and inequalities at every stage of life. They face neglect, all kinds of physical and mental abuses, servitude and rejection. Today, women across the globe are making attempts to fight back the discrimination they face, but despite this, their struggle for equality, recognition and survival does not reach a conclusion.

Work undertaken by women in every field is grossly underestimated, under-valued and subject to gender based discrimination. Despite a plethora of legislations that attempt to remove inequalities in the workplace, India is witnessing a steady decline in the participation rate of women in the labour workforce.

Sexual harassment is a serious manifestation of sex discrimination at the workplace and a violation of human rights as well as fundamental rights, enshrined in the Constitution of India. It is yet another form of violence against women reflecting patriarchal mindsets and gender based discrimination that women experience at work. It is also a manifestation of power relations, as women are much more likely to be the victims of sexual harassment because of their already existing vulnerability, insecurity, and social conditioning to accept discrimination in silence.

The research methodology adopted for this paper is doctrinal, statutes and secondary sources of information like case laws, books, articles, websites, newspapers etc.

The aim of this research paper is to suggest measures to empower women and provide protection against sexual harassment and offer the right to work with dignity and non discrimination, based on the Human Rights treaties and the ratification of International Conventions by the Indian Government. Hence, there is a strong need to strengthen the Sexual Harassment Act and consider the recommendations provided that would make its protection more comprehensive and effective.

BACKGROUND:

Sexual Harassment at the workplace in India has continued to be a serious offence and not something often openly spoken about. 1997 was a turning point in this regard when we finally understood sexual harassment of women through a constitutional lens. The Supreme Court of India, in the Vishaka Guidelines[1], acknowledged Sexual Harassment at the workplace as a human rights violation. Keeping in lieu the increase in the number of cases of Sexual Harassment faced by women, there was an urgent need for a forceful law to come into place to protect against such harassment. On 23rd April, 2013, a comprehensive legislation was finally brought into force that deals with the protection of women against sexual harassment at workplace by enacting ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013’. This new legislation makes every effort to be a user friendly constitutional tool in the hands of the employers and employees, to create healthy and safe workplaces and safeguard the vision of Vishaka guidelines[2], one reaffirmed by the Justice Verma Committee (2013)[3].

SEXUAL HARASSMENT DEFINED:

  • By EEOC, United States of America:

The American Equal Employment Opportunity Commission, in 1980 produced one of the first set of guidelines dealing with Sexual Harassment.[4] The Commission took the position that sexual harassment was a violation of Title VII of the Civil Rights Act of 1964[5]. US Courts including the US Supreme Court have approvingly referred to the EEOC guidelines while deciding complaints of discrimination on ground of sex under Title VII.

EEOC guidelines define Sexual Harassment as follows:

“Sexual Harassment:

  • Harassment on the basis of sex is a violation of Section 703 of Title VII. Unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used on the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
  • In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination by the legality of a particular action will be made from the facts, on a case by case basis”. [6]
  • India:

The definition that has been provided in the Sexual Harassment at Workplace (Prevention, Prohibition & Redresseal) Act, 2013[7] is in consonance with the Vishakha Judgement[8]. It includes within its ambit “any unwelcome acts or behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, making sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal or non verbal conduct of sexual nature.”[9]

The act provides that a woman shall not be subjected to sexual harassment at any workplace as defined within the act. As per the statute, presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment; threat of detrimental treatment in employment; threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment likely to affect the lady employee’s health or safety may amount to sexual harassment.[10]

Comparison:

  1. The American Equal Employment Opportunity Committee Guidelines define sexual harassment, from the aspect of both, men and women. On the contrary, the Sexual Harassment at Workplace (Prevention, Prohibition & Redresseal) Act, 2013, of India only emphasis the harassment against women.
  2. Under the EEOC Guidelines, the law takes into consideration, sexual harassment from a supervisor, a supervisor from another department, co-worker, a client or a customer. However, the same is not applicable under the Sexual Harassment Act, 2013, as it only focuses on “employers” as being guilty of committing sexual harassment. And is silent towards the other probable possibilities.

KEY ISSUES & RECOMMENDATIONS

  1. Ambiguities pertaining to the definitions
  • The said definition, under the “unorganized sector”[11] is not exempted from the ambit of the proposed legislation. Thus, as suggested by the Justice Verma Committee Report, the proposed legislation should also cover women in the armed forces and police, government institutions, all public bodies, all panchayats, all establishments covered under the Factories Act, 1948 and the Industrial Disputes Act, 1947 and all employers in the private sector, armed forces, police, agricultural workers and women students/ staff of all schools and educational institutions.
  • The definition of “Respondent”[12] as given under Sexual Harassment at Workplace (Prevention, Prohibition & Redresseal) Act, 2013 uses the word “person”. The legislation is silent as to whether this “person” or perpetrator can be a woman or a transgender as well.
  1. Issues regarding Complaints:
  • With regard to Section 26 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition bad Redressal) Act, 2013[13] there arises a doubt as to whom complaint is made about the employer’s failure to constitute an Internal Complaints Committee as per the requirements of the act under this section.

The act is silent upon who is to shoulder the responsibility if the committee is not constituted within an organization. Who has to initiate action against the non constitution of the committee? Hence, the need of a more defined structure is felt wherefore the responsibility of keeping a check on the constitution of such a committee is fixed.

  • The act also fails to cover the women who were employees of the institution at the time of harassment but were terminated due to one or the other reasons before they got a chance or an opportunity to file a complaint.
  • Often there have been cases where people have been falsely[14] Hence, we propose that there should be a mechanism for identifying false complaints and ensuring that such instances do not arise in the future.
  1. Prevention of misuse of the Act:
  • Instances of people filing false complaints have become common these days. Sometimes, a situation arises wherein people because of sharing a sour relationship with their colleagues files a sexual harassment case which might seem like a person’s way of seeking revenge. Thus, it is suggested that there should be a mechanism laid down for identifying false complaints. The misuse of the act must be prevented and those making false complaints too should be penalized.
  1. Internal Complaints Committee :Problems
  • The act requires the establishment of an Internal Complaints Committee in all administrative units or offices for each workplace. The committee requires four members out of which three should be employees and one should be a non – employee. Half of the members of the committee are supposed to be women and it is also required for it to be headed be a senior level woman employee belonging to that workplace.[15]

But what has not been taken into consideration is the fact that a particular organization may not have a senior level woman employee to head such a committee. Not only this, but it may not have the required number of women employees to constitute this committee. There is also no provision laying down the credibility and expertise of the members who would constitute the committee. The training and capacity building of these members has not been spoken about either.

  • Another problem in the formation of the Internal Complaints Committee is that an establishment with different branches, offices or departments requires the formation of an ICC at each branch, office or department[16]. This is a very unrealistic suggestion as a high level establishment might have hundreds of offices spread across the country. It would not be possible to form such a committee at every level.
  • Budgetary allocations for the committee must also be specified in the Act. What resources should be put into the constitution of this committee, where the committee would be funded from, how this money would be utilized etc. should be considered. We would also like to suggest that the role of ICC under criminal investigations must be specified as to whether a civil and criminal trial can go on simultaneously.
  • Section 11(ii) of the act that enables the internal complaints committee to be given powers of a civil court for summoning discovery and production of documents[17] whereas the composition is without any legal background and no requirement of trainings thereafter is there in the provisions.
  • It is also worth noting that the procedure of enquiry and complaints committee procedure is very cumbersome regarding the documents and paperwork.
  1. Confidentiality of the case
  • The act talks about a provision under which 6 copies of the case inclusive of the name of the victim and the witnesses are to be made. The same in most cases, jeopardizes the case, as the victim and the witnesses are threatened by the defendant, etc. Thus, we suggest that adequate changes must be made and the confidentiality of the case should be ensured.
  • As highlighted in Tarun Tejpal citation regarding the difficulty in identifying the head in the Media House and stressed that there has to be onus on the respondent also regarding the maintaining of the confidentiality and the ambiguity about what sections need to be published.
  1. Section 19(g) and 19(h) of the Act
  • There is a lot of ambiguity and confusion regarding the sections 19(g) and 19(h) mentioned in the act. Therefore, the clarity of these acts is something that needs to be worked upon.
  1. The nature of the workplace
  • It may be noticed that the law is very general and is not sensitive to different natures of the workplaces. The agricultural sector and residential areas for domestic helps are not sensitive to LCC and its proceedings.
  • The Act is vague and silent upon the issue that whether educational institutions form a ‘workplace’. There are a few higher education institutions that have a working Sexual Harassment Committee in place and would prefer to continue with the system they have established and is successfully working, particularly as the Act limits who may be members on the Committee (and appears to exclude students).
  1. Absence of Internal Committee
  • There is no internal committee to look into the ICC at the state level and LCC. Provisions for the creation of the same must be incorporated and mentioned in the act.
  • The committee should also be advertised on a large scale.
  1. Time Frame
  • Section 9(1) stating the limitation of three months for the complaint to be made might be difficult in some cases. Section 9 provides that the period of 3 months can be extended by another 3 months at the discretion of the Complaints Committee.
  1. Address the aspect of victimization
  • It is a common feature in most sexual harassment cases that the employer or the person against whom a complaint is filed retaliates against the complainant through counter-complaints, dismissing the services of complainant, creating a hostile work environment etc. There is no provision in the Act or the Rules which deals with this aspect, making it a tough call for women to approach the mechanism under the Act.
  1. The Act is biased against urban-office conditions
  • It does not provide the same civil remedy to domestic workers as it does to other women. Complaints from domestic workers have to be mandatorily forwarded to the Police Station, regardless of whether they want to use the criminal justice system or not. The civil remedy of compensation etc. is absent in their case.
  1. The onus of implementation of the Act is on the Employers, whereas the state should also hold some responsibility for its enforcement?
  • The Act places main responsibility on the employer for implementation and leaves the State largely out of the purview of responsibility. There is no set-time frame for the LCC’s etc to be notified and no punishment for government officials for failing to do so. The role of the state especially the state government is negligible in terms of ensuring the enforceability of the Act.
  1. Does not deal with sexual harassment faced by males
  • This act has completely ignored the sexual harassment faced by the males in their work place. Sexual harassment faced by males often goes unnoticed. This happens more because of the social ridicule that men would face if they would report any case of sexual harassment being faced by them especially in a patriarchal country like ours. Thus, they instead choose to suffer in silence and very often there are no reports of cases of sexual harassment faced by men at workplace. For this purpose, the head of the Internal complaints Committee should not be gender specific for the males too could be subjected to sexual harassment at workplace.
  • Judging from the findings of a recent Economic Times-Synovate survey, the men need to be incorporated in the bill as soon as possible. Of the 527 people queried across seven cities – Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai and Pune – 19% said they have faced some kind of sexual harassment at office. In Bangalore, 51% of the respondents had been sexually harassed, while in Delhi and Hyderabad, 31% and 28% of those surveyed said they had been sexually harassed. Around 38% of the respondents across 7 cities in India said that in today’s workplaces, “men are as vulnerable to sexual harassment as women.”[18]
  1. Inclusion of a non employee in the constitution of the ICC
  • The act requires a person “amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment”[19]. However employers might not be comfortable in relying on a person from outside their establishment on such a sensitive matter. They often like to keep such matters as confidential as possible so as to avoid unwanted publicity. Such instances usually lead to a downfall in the image of the establishment in the market. Thus, employers would find it difficult to trust a person from an outside organization with such a case. It also puts unnecessary burden on women’s organizations to be a part of the act.
  1. Awareness
  • The need of the hour is awareness generation regarding various aspects of the act. This can be done through various ways.
  • A series of online courses for awareness generation of the Act for basic level of awareness in a form of a module should be created.
  • Home Ministry should play a bigger role like advertising and taking measures to sensitize the youth.
  • The employers must be assigned a duty to devise a sexual harassment policy and that should be prominently displayed within the premises with complete details on the procedure for making a complaint.
  • There is vagueness pertaining to the definition of what exactly constitutes sexual harassment. It might be a very subjective experience for each woman. Hence, women might often be unaware about the citation of difference between physical and sexual harassment. Hence, a clarity pertaining to the same must be incorporated.
  1. Other Recommendations
  • The high power vigilance and monitoring committee shall meet at least twice in a calendar year, in the month of January and July to review the implementation of the provisions of the Act and other matters connected therewith, prosecution of cases under the Act, role of different officers/agencies responsible for implementing the provisions of the Act.
  • Section 10(1) of the Act[20] regarding the conciliation is contrary to the nature and spirit of the Vishakha Guidelines.
  • Due to lack of witness protection, witnesses are not willing to come forward to support the women concerned. Thus, we suggest a protection mechanism to be incorporated within the act.

CONCLUSION

Sexual Harassment at work is something that most people often face but not many talk about openly. This is usually for the fear of losing their job, facing mockery at the hands of the society, getting trapped in the never ending judicial proceedings or due to other unsaid reasons. After a detailed research on The Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act 2013, we infer that the legislators have undoubtedly come up with a very comprehensive framework which enables the women of our country to fight for their rights and try and put an end to this menace. However, it must be noted that the present laws are not fully sufficient and have a few loopholes which still need to be addressed. The act has exclusively been established to cater to harassment cases against women, and thus has failed to include men in it’s ambit. Therefore, appropriate measures to fulfil this gap must be institutionalised.

Apart from this, large companies have taken a number of steps but most have to still implement measures in order to live up to the spirit of the act. Also, a majority of business establishments are still in the process of figuring out what to do. Hence, we suggest that a greater clarity may be brought into the act.

Another important aspect of the act is the Internal Complaints Committee. However it has a few flaws which must be addressed as soon as possible in order to ensure a better implementation.

There is also an urgent need for incorporating various suitable recommendations being suggested over the course of time for a better functioning mechanism of the said provision. Keeping in lieu, the illiteracy rates and unawareness, campaigns and education must be provided to the general population of India.

Thus, we would like to conclude by saying, that with institutionalisation of this act, sexual harassment at workplace is no longer a taboo and has provided the country’s women their key to justice. With the incorporation of the recommendations suggested over the course of time and continues endeavours, we are sure, that this act will further improve the conditions of our society.

Edited by Amoolya Khurana

[1]Vishaka and Others Vs. State of Rajasthan and Others (JT 1997 (7) SC 384

[2] ibid

[3] http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf

[4] Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 CFR 1604.11(a) (1985)

[5] http://www.eeoc.gov/laws/statutes/titlevii.cfm

[6] 45 Federal Register 74, 677 (10th November, 1980) , codified in 29 Code of Federal Regulations (CFR), Section 1604.11

[7]Section 2(n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)    Act,2013: “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:–

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature

[8]Supra 1

[9] Supra 8

[10]Section 3(2) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)    Act,2013:  The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: —

(i) implied or explicit promise of preferential treatment in her employment; or

(ii) implied or explicit threat of detrimental treatment in her employment: or

(iii) implied or explicit threat about her present or future employment status; or

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or

(v) Humiliating treatment likely to affect her health or safety.

[11] Section 2, (p) of The Sexual Harassment of Women at Workplace (Prevetion, Prohibition and Redressal) Act, 2013:  “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

[12]Section 3, (m) of The Sexual Harassment of Women at Workplace (Prevetion, Prohibition and Redressal) Act, 2013:   “respondent” means a person against whom the aggrieved woman has made a complaint under section 9.

[13]Section 26 of the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013  – Penalty for noncompliance with provisions of Act

(1) Where the employer fails to—

(a) constitute an Internal Committee under sub-section (1) of section 4

(b) take action under sections 13, 14 and 22; and

(c) contravenes or attempts to contravene or abets contravention of other provisions of this Act or any rules made there under,

He shall be punishable with fine which may extend to fifty thousand rupees.

(2) If any employer, after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to

(i) twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offence:

Provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

(ii) Cancellation, of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

[14] Smriti Singh “Woman fined Rs 5 lakh for false sexual harassment case filed 15 years ago

Available at: http://timesofindia.indiatimes.com/city/delhi/Woman-fined-Rs-5-lakh-for-false-sexual-harassment-case-filed-15-years-ago/articleshow/10952533.cms (Last Visited on 15th September 2014, 7:25 p.m.)

[15]Section 4(2) (a) of the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013  – Penalty for noncompliance with provisions of Act

– Constitution of Internal Complaints Committee

The Internal Committee shall consist of the following members to be nominated by the employer, namely:–

  • Presiding Officer who shall be a woman employed at a senior level at workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding Officer shall be nominated from other offices or administrative units of the workplace referred to in sub-section.

Provided further that in case the other offices or administrative units of the workplace do not have a senior level woman employee, the Presiding Officer shall be nominated from any other workplace of the same employer or other department or organization.

[16]Section 4(1) of the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013  – Penalty for noncompliance with provisions of Act (1) Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”:

Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices.

[17] Section 11(2) of the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013 –

 Notwithstanding anything contained in section 509 of the Indian Penal Code(45 of 1860), the court may, when the respondent is convicted of the offence, order payment of such sums as it may consider appropriate, to the aggrieved woman by the respondent having regard to the provisions of section 15.

[18] Men too are victims of sexual harassment by Kritika Kapoor.

Available at: http://timesofindia.indiatimes.com/life-style/relationships/man-woman/Men-too-are-victims-of-sexual-harassment/articleshow/16336627.cms  (Last visited on September 12, 05:45 pm.)

[19] Section 4( 2)(c) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013

[20]Section 10 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013- Conciliation:

  • The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation:

Provided that no monetary settlement shall be made as a basis of conciliation.

2 Replies to “Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013: A Critical Analysis”

  1. A very thought provoking criticism. Many issues are made to come to the minds of the reader. Well done.

    anandi

Leave a Reply

Your email address will not be published. Required fields are marked *