Women, irrespective of their geographical location, position in their job, caste, religion and often age, are often victims of sexual harassment at their workplaces across the globe. An issue of sexual harassment at workplace needs to be handled more carefully as the reputation of both the victim and the accused are at stake, and more importantly the goodwill of the organization for which they serve. However, the primary object is to safeguard the interest of the victim and to find out the truth behind the alleged sexual harassment at workplace by the victim by way of conducting a departmental proceedings and criminal investigation, if required. This issue of sexual harassment or sexual abuse at workplace or office should be looked into from a point of view of a Human Resource professional as well as from the point of view of a legal expert.
With the increase in numbers of working women in India, the responsibility of protecting the dignity of the female employees by their respective employers has increased manifolds. Sexual harassment or abuse of the women employees at their workplaces is basically the result of a perverted mind which needs to be cured with the assistance of psychiatric treatment or exemplary punishment or both. Apart from all these theoretical blabbering, there are certain practical aspects that one should be aware of.
A sexual harassment at workplace is said to have taken place when a women is subject to sexual harassment at her workplace by her employer. The term ‘employer’ in this regard means and includes “any person employed through any of the offices including contract workers, employees will mean all employees of the company.” Thus we can say that a woman can bring charges of sexual harassment at workplace against anyone who is directly or indirectly engaged and/ or appointment by her employer.
Every organization is supposed to form a committee in order to deal with sexual harassment issues at workplace and to investigate into the alleged charges and to provide relief to the victim of sexual harassment at workplace. However, many companies in India, in spite of having a huge numbers of female employees have failed to establish such a committee to safeguard the interest and dignity of their female employees. In this context, a committee means “committee formed by the company/ organization to investigate the cause of sexual harassment of women at workplace” Such committee should consist of 7 members – 3 women employees and 3 employees from the side of management and 1 member should be from an external Non-Governmental organization (NGO). And 1 woman should be compulsorily appointed as the chairwoman of the committee.
Before we discuss more about sexual harassment at workplace, we need to find out what exact the term “sexual harassment at workplace” means. As per the Protection of Human Right Act, “human rights” include the rights to life, dignity, liberty and equality for every Indian. These basic “human rights” have been guaranteed by the Constitution of India. Similarly Indian working women has their right to live with dignity at their workplace and the responsibility of protecting their rights falls on their employer. Recently, the Hon’ble Supreme Court of India has become more stringent on violations of such rights granted to the working Indian women. For a better understanding, the definition of “sexual harassment at workplace” is defined hereunder:
Acts which can be termed as sexual harassment are as follows:
1. Any direct or indirect unwelcome sexually determined behaviour,
2. Physical contact and advances.
3. Demand or request for sexual favours.
4. Sexually covered remarks including showing pornographic material in any form i.e. digital or hard copy.
5. Any other unwelcome physical or non-verbal conduct of a sexual nature.
Procedure of Complaint
For a victim of sexual harassment at workplace, it does not matter whether the said victim woman is drawing salary, honorarium from her employer or providing a voluntary service to her employer. Even the type of organizations i.e. Government, public or private organization in which the woman works do not matter while filing a complaint against sexual harassment at workplace. However, there are certain procedures which one needs to follow while lodging the complaint before the compliant committees which are discussed below:
1. Any female employee including those employed under contract basis if harassed by a co-employee is eligible to file written confidential complaint to the Chairwoman of the committee. The complaint should contain proper details of the incident along with name of witness(es), if any. After receiving the said complaint, the Chairwoman will thoroughly investigate the matter, and if satisfied with the prima facie evidence, the Chairwoman will call a meeting of the committee and start a full investigation. A copy of the said complaint should also be forwarded to the Human Resource personnel of the organisation.
2. The committee will investigate the matter thoroughly and can summon witness(es) and take their oral/ written submission, if necessary in order to determine the validity of the alleged complaint made by the female employee.
3. The committee should give its report in writing with valid reasons for its conclusion to head/ executive of the organization who upon receiving such report from the committee is liable to take necessary actions against the delinquent employee.
4. The total procedure of the investigation starting from the day of filing such complaint before the committee till the day of submitting the investigation report to the organization should be completed within fifteen (15) working days.
The woman complainant as well as the witnesses should not be victimized or discriminated in any manner whatsoever. However, an activity of a woman employee filing false complaint of sexual harassment at workplace against a co-employee, with an intention to settle personal score or to defame the said person, is a gross misconduct and disciplinary measures/ actions can be taken against the female employee.
Responsibilities of the Employer
Every employer whether in Government, private or public sector is responsible for maintaining the dignity and integrity of the female employees in their organizations. And they should give their best effort to stop any kind of sexual harassment or abuse on any of their female employees and should be responsible to take these under mentioned steps:
1. The employer needs to circulate notifications defining the provisions of sexual harassment at workplace to each and every employee of the organization.
2. The service rules and/ or standing orders of an organization whether Government, private or public sector should contain clauses against any kind of sexual harassment at workplace along with appropriate punishments/ penalties.
3. Proper working conditions in relation to work, leisure, health and hygiene etc. should be provided to the female employees of the organization and at no time a female employee should feel discriminated at her workplace.
In case the sexual harassment at workplace is caused by any third party who is neither directly nor indirectly related to the employer, the employer is bound to take all the necessary steps in order to provide assistance to the affected female employee and to do all other acts which are necessary to stop any derogatory actions on any female employees.
Various Laws Which Can Be Used In Case Of Sexual Harassment at Workplace
Certain sections under the Indian Penal Code can be used in order to establish charges against an accused. Apart from filing complaint before the Complaint Committee, remedies under various sections of IPC or Indian Penal Code can easily be found.
Section 354 of IPC reads as follows:
“Section 354. Assault or criminal force to woman with intent to outrage her modesty
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.“
Section 509 of IPC reads as follows:
“Section 509. Word, gesture or act intended to insult the modesty of a woman
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.“
Now apart from IPC, the Indecent Representation of Women (Prohibition) Act, 1987 is well equipped to deal with any form of sexual harassment or sexual abuse of women at their workplace.
Section 4 of IRWP Act reads as follows:
“Prohibition of publication or sending by post of books, pamphlets, etc., containing indecent representation of women.- No person shall produce or cause to be produced, sell, let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which contains indecent representation of women in any form:
Provided that nothing in this section shall apply to-
(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure-
(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet paper, slide, film writing, drawing, painting photograph, representation or figure is i the interest of science, literature, art, or learning or other objects of general concern: or
(ii) which is kept or used bona fide for religious purposes;
(b) any representation sculptured, engraved, painted or other wise represented on or in-
(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act 1958(24 of 1958); or
(ii) any temple, or on any car used for the conveyance or idols, or kept or used for any religious purpose;
(c) any film in respect of which the provisions of Part II of the Cinematograph Act, 1952(37 of 1952) will be applicable.“
For more information on the Indecent Representation of Women (Prohibition) Act, 1987, you can check the whole Act. Thus at the end we can say that sexual harassment at workplace is a delicate subject which needs to be taken care of very diligently.
This article is a republished article by the same author. However, right now a separate law has come into force known as Sexual Harassment of Women at Workplace Act, 2013 which we will deal in subsequent publications. In the meantime if you have further queries related to sexual harassment at workplace, feel free to contact a labour law advocate in Kolkata at the earliest.