RECEIVING AND REDRESSING A WORKPLACE SEXUAL HARASSMENT COMPLAINT

Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right.

- Vishaka and Others vs. State of Rajasthan and Others (13.08.1997)

Around the world, organizations are taking measures to promote gender equality and provide a safe and secure workplace for everyone, which is free from any form of harassment. In India, protection against sexual harassment is vested in all persons as a part of their right to life with dignity under Article 21 of the Constitution.¹

Fostering a safe and respectful workplace is not only a moral imperative but also a legal requirement for employers in India. Workplace sexual harassment is a serious concern that employers must address adequately and efficiently to ensure a safe workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act) and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (Rules) were enacted with the intention of providing protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment. In the decade following its enactment in 2013, the Act has undergone revisions through legislative amendments, and the interpretation of certain provisions of the Act has evolved with time through clarifications and directions of the courts in India.

A report published by Complykaro and Economic Times showed that there was a 31% increase in sexual harassment complaints at the workplace in the financial year ending March 2023 as compared to the financial year ending March 2022. A recent analysis of companies in the BSE100 ESG Index conducted by Forbes India and Complykaro indicated that there was a steep increase of 101% in the number of pending sexual harassment cases at workplaces in the financial year ending March 2023.This could be attributed to several reasons including return of workforce to workplaces post COVID-19 pandemic and increased awareness and sensitisation among employees.

Given the above context, it is crucial for employers in India to be aware of the nitty-gritties of the law and understand the process of handling and addressing workplace sexual harassment complaints effectively, sensitively and in a time bound manner. This article outlines key considerations that every employer should be aware of when it comes to receiving and redressing sexual harassment complaints.

What is ’sexual harassment’?

The Act prohibits sexual harassment of women at any workplace. ‘Sexual harassment’ has been defined under the Act to include any one or more of the following unwelcome acts or behaviour (whether directly or by implication):

i. physical contact and advances;

ii. a demand or request for sexual favours;

iii. making sexually coloured remarks;

iv. showing pornography;

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

Further, any circumstances of implied or explicit promise of preferential treatment in employment, implied or explicit threat of detrimental treatment in employment, or implied or explicit threat about a woman’s present or future employment status, in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment.

In recent years, courts have interpreted the definition of sexual harassment at the workplace to include use of abusive and unprofessional language having a sexual undertone, interference with a woman’s work, or creating an intimidating, offensive, or hostile work environment for a woman at her workplace, and humiliating treatment likely to affect the health and safety of a woman at her workplace. Unwarranted sexual advances, stalking, leering, inappropriate or offensive jokes or comments, physical gestures including caressing, touching, and hugging, sexually tinted gestures, derogatory comments on dressing or physical appearance, inappropriate or offensive messages, and intimidating or threating around sexual favours, are an indicative list of instances that could be considered as acts of sexual harassment.

Feedback on performance at work, exercise of human resource functions such as following up on unauthorized absence from work, management duly exercising their rights, constructive feedback on conduct, and gender-based discrimination or sexism in isolation, are some instances of acts that do not amount to sexual harassment.

What is a workplace?

A workplace means the primary place of employment as much as the physical office space where one works. However, as flexible workforce engagement models and remote working models evolve, the conventional understanding of a ‘workplace’ has also evolved over the years. Currently, the definition per the law is broad enough to cover places and instances that come within the purview of an ‘extended workplace’ i.e., any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment. For example, any place where a woman travels for work, business trips, team building sessions, seminars, and conferences, whether at or outside office premises, and commutes to and from any place as part of her employment. Sexual harassment over cyberspace, including sending offensive or derogatory messages via electronic media, also amounts to sexual harassment under the definition of the law since an employee working remotely or from home, is also covered as a ‘workplace’ under the Act.

Other obligations that should be taken into consideration by an employer

In addition to those mentioned above, an employer should comply with the obligations, including:

a. Each organization with at least 10 employers must mandatorily frame and publish a policy on prevention of sexual harassment at workplace which strongly emphasises on the organisation’s zero tolerance policy. The policy must lay down in detail the organisation’s method of receiving and redressing complaints of workplace harassment and the consequences of being found guilty of sexual harassment.

b. Each employer must organise workshops and awareness sessions to sensitize employees to aid in prevention of workplace sexual harassment. As a part of training, employees must be made aware of the provisions and protections under the Act and the organisation’s prevention of sexual harassment at workplace policy.

c. Employers must also conduct orientation and training sessions for members of the IC to train them to sensitively and effectively redress the complaints received.

d. Every organisation is required to file a report annually inter alia detailing the training/awareness sessions conducted, nature and number of sexual harassment complaints received and their status during the year.

e. Employers must ensure that information regarding the contents of the complaint, identity and address of the victim, respondent and witness; inquiry proceedings and the actions taken based on the recommendations of the internal complaints committee are not published or communicated to the public, press and media.

f. Organisations must strictly deal with false complaints of sexual harassment and impose penalties as per the Act.

g. Employers must provide assistance to the complainant if she chooses to file a complaint in relation to the offence under the Indian Penal Code, 1860 or any other law for the time being in force.

Internal Complaints Committee under the Act

Every employer with at least 10 employees is required to constitute an internal complaints committee (IC) comprising at least a chairperson, 2 members, and an external member in accordance with the Act. The law has prescribed that at least half of the members of the IC are women. If an employer has offices or administrative units in different locations, an IC must be established in every location where at least 10 employees are engaged.

As a general rule, members of the IC must be impartial, must not have any personal knowledge or interest in the case under investigation and must not be connected to the case in any manner. Further, the external member on the IC should be an independent person who is associated with an NGO or committed to the cause of women or person familiar with issues relating to sexual harassment.

If a complainant has to file a complaint of sexual harassment and the employer has not established an IC on account of having less than 10 employees or the complaint is against the employer himself, the employee may file a complaint with the local complaints committee. Employers may, as a good practice, educate employees about the presence and functioning of the local complaints committee.

Who can file a complaint?

The Act as it stands today only provides protection to women. Individuals of other genders cannot file a complaint of sexual harassment under the Act. However, the Act defines ‘respondent’ as a person against whom the aggrieved woman has made a complaint and does not specify a particular gender. The High Court of Calcutta² held that complaints of sexual harassment against a person of the same gender as the complainant are maintainable under the Act. The court opined that there is nothing under the Act that precludes a same-gender complaint and that a woman can also hurt the modesty or dignity of another woman. Although the law protects only women against sexual harassment, certain progressive employers have put in place a gender-neutral policy which protect the entire workforce irrespective of the gender of an individual.

In case an aggrieved woman is unable to file the complaint on account of physical or mental incapacity, or death, her relative or friend, co-worker, psychologist or psychiatrists, legal heir (or, any person who has knowledge of the incident, with the written consent of her legal heir),etc. as prescribed under the Act, may file the complaint on her behalf. An aggrieved woman need not file a complaint with the ICin person. A complaint may be submitted through another person, electronically, or through any other media³.

The Act and Rules are silent with respect to anonymous complaints of sexual harassment. The Act neither recognizes nor provides the procedure for receiving and redressing anonymous complaints of sexual harassment. In light of this, the Delhi High Court opined that anonymous complaints of sexual harassment are most likely to be dismissed⁴. However, organisations through their internal policies may extend the protection to receive and accept anonymous complaints of sexual harassment even though there is no obligation to under the law to do so.

The Act does not provide for the IC to take suo moto cognizance of an incident of sexual harassment at the workplace and initiate an inquiry. IC may take up a complaint only upon receipt of a written complaint from an aggrieved woman or from another person on her behalf.

Timelines for receiving and redressing complaints

Conclusion

Receiving and redressing a workplace sexual harassment complaint in a sensitive and effective manner is critical for every organisation. Employers must be aware of the sensitivity involved in sexual harassment complaints and the legal framework that deals with the prevention, prohibition, and redressal of sexual harassment of women at the workplace. By adhering to the legal framework, having a well-defined policy per the Act, conducting fair and transparent investigations, and creating a supportive environment for employees, employers can contribute to a safer and more inclusive workplace for all, while being compliant with applicable laws. Employers should adopt more contemporary approaches to address workplace sexual harassment issues and ensure a safe working environment for all such as a gender-neutral prevention of sexual harassment at workplace policy, focus on employee sensitisation, and bystander intervention training.

Disclaimer – The views expressed in this article are the personal views of the authors and are purely informative in nature.