April 11, 2017

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Revisiting Laws Around Sexual Harassment At Workplaces

- Anubhav Kapoor, General Counsel and Company Secretary [ Tata Technologies ]

Anubhav Kapoor

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.

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