Sexual harassment is a serious manifestation of discrimination at workplace and a violation of human rights. 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...
Sexual harassment is a serious manifestation of
discrimination at workplace and a violation of
human rights. 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 law on sexual harassment is one of the progressive
legislations rolled out by GOI ensuring women a healthy work
environment. It's been almost three years since the legislation
has been enacted. Based on experience of implementing it and
the reports available in the public domain, the Act could be
strengthened in certain areas that will built the efficacy of the
legislation.
The Sexual Harassment at Workplace (Prevention, Prohibition,
and Redressal) Act, 2013 ["The Act"] only addresses the issue
of protection of women employees and is not gender neutral.
Remaining employees, if subjected to sexual harassment,
cannot claim protection or relief under the law. The statute
nowhere provides any protection against retaliation and
victimization, which is a very common consequence faced by
individuals upon making a complaint of sexual harassment.
The law also casts an obligation upon an employer to address
grievances with respect to sexual harassment at workplace
in a time-bound manner, which in several cases may not
be practically possible as employees or witnesses involved
may not easily or readily co-operate. Another interesting
inclusion in the statute is the ability of an employer to punish
a complainant in case of a false or malicious complaint.
These provisions, although meant
to protect an employer's interest,
is likely to deter victims from
reporting such incidents and filing
complaints, which may defeat the
purpose for which the law has been
enacted.
Grievance Redressal Mechanism:
The Act obligates to establish the
Internal Complaints Committee
("ICC") to each office or branch of an
organization employing at least 10
employees. The ICC would consist
of a Presiding Officer who shall
be a woman employed at a senior
level in the organization, at least
two members from the organization
who are committed to the cause
of women, and one member from
outside, preferably from an NGO,
to hear and redress grievances
pertaining to sexual harassment.
The Act briefly casts certain duties
on an employer: Providing a safe working environment;
displaying the penal consequences of sexual harassment at
various conspicuous places in a workplace; and organizing
workshops and awareness programs in this regard.
Another establishment is the Local Complaints Committee
("LCC") to investigate complaints regarding the same from
establishments where the ICC has not been constituted.
The Act requires the establishment of an ICC in all
administrative units or offices or branches 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 committee members are supposed to
be women, and it is also required that the committee be
headed by a senior-level woman employee belonging to that
workplace.
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 or it may not
have the required number of women employees to constitute
the 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 have not been spoken about either.
Another problem in the formation of the ICC is that
an establishment with different branches, offices, or
departments requires the formation of an ICC at each branch,
office, or department. 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.
In addition, the Act does not prescribe any timeframe to
conduct and complete this conciliation or to implement the
settlement, if any, arrived at through conciliation. Hence,
a complaint can gather dust for
months till an inquiry is initiated
into it under the Act.
The committee is obliged to prepare
an annual report in the prescribed
format with details of all cases that
have been filed and disposed of.
This report must be submitted to the
employer and District Officer, who
will in turn forward it to the state
government. But as per the various
surveys, only few companies adhere
to the same and this has been
proved one of the problems where
the reporting is not made and no
legal consequences are lined up.
We would also like to suggest that
the role of the ICC under criminal
investigations must be specified as
to whether civil and criminal trials
can go on simultaneously. Section
11(ii) of the Act empowers the ICC
with powers of a civil court for
summoning discovery and production of documents whereas
there is no requirement of any legal background or training
for members who would constitute the LCC. It is also worth
noting that the enquiry procedure and complaints committee
procedure could be very cumbersome regarding documents
and paperwork.
Coming to the end of the topic, if harassment is proved, the
law leaves it up to the ICC to decide a monetary fine to be
paid by the offender depending on his "income and financial
status" irrespective of the nature and kind of sexual assault.
Moreover, if the aggrieved woman wants to approach the
court, she can do so only after taking authorization of the
LCC or ICC, and if these bodies are complicit to the aggressor,
the problem aggravates. The successful execution of the Act
depends upon the goodwill of the employer, District Officer,
ICC, or LCC, making it all the more vulnerable.
While the Act, in general, is a welcome legislation bringing
a greater degree of clarity and enforceability to the sexual
harassment law and practice in the country, there are some
provisions that could well lead to overall ineffectiveness
of the Act and rules in addressing sexual harassment at
workplaces. To prevent this, the legislative machinery
should consider revisiting the same and making suitable
amendments to the Act.
Disclaimer
- The views expressed in this article are the personal
views of the author and are purely informative in nature.