Revisiting Laws Around Sexual Harassment At Workplaces

Update: 2017-04-11 11:51 GMT
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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.

By - Anubhav Kapoor

Anubhav Kapoor is counted among the Top 100 General Counsel in India. As Director of Legal Affairs at Ford India, ANUBHAV is responsible for legal, IP, regulatory compliance and corporate governance practices and policies of the entities of Ford in India. He is based out of Pune. Anubhav has 27 years of experience as in-house counsel across industries including IT, automotive, aerospace, pharmaceuticals, food, banking & insurance software and engineering. His areas of expertise include M&A, arbitration & litigation management, structuring of large business contracts, IPR and global compliances to name a few. Passionate about innovation, he has helped large corporates devise their IP creation and monetization strategies. He has also handled contracts and litigations involving complex IP issues.

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