- WHAT IS SEXUAL HARASSMENT?
Sexual harassment can be defined as any unwelcome, sexually determined physical, verbal, or non-verbal conduct which can be direct or indirect. For example, giving sexually suggestive remarks about women, demands for sexual favors, and sexually offensive visuals in the workplace. The definition also covers situations where a woman could be disadvantaged in her workplace as a result of threats relating to employment decisions that could negatively affect her working life.
- WHAT ARE THE DIFFERENT KINDS OF SEXUAL HARASSMENT?
There are two types of sexual harassment claims: “quid pro quo” and “hostile work environment.” Quid pro quo means “this for that.” It is a kind of expressed or implied demands for sexual favors in exchange for some benefit. It is generally committed by the ones having a superior or higher post.
Hostile work environment harassment arises when speech or conduct is so severe and pervasive it that creates an intimidating or demeaning environment or situation that negatively affects a person’s job performance. Hostile work environment situations are not as easy to recognize, given that an individual comment or occurrence may not be severe, demeaning behavior may occur that is not based on sex, and there may be long periods between offensive incidents. It can be committed by any person in the workplace.
- WHAT IS THE LAW GOVERNING SEXUAL HARASSMENT IN INDIA?
After the landmark judgment of Vishaka v. State of Rajasthan, a set of guideline was prepared for protection of right to equality and dignity. Following the Vishaka guidelines, the Government of India, in 2013 introduced the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act. The Act ensures women’s right to equality at workplace and addresses the problem of sexual harassment through Prohibition, Prevention and Redressal.
- WHO ARE COVERED BY THIS ACT?
The Act is not a gender neutral Act and it only protects women. Any women who is subjected to any sexual harassment at her workplace can avail this act and claim protection under it. This act broadly covers all the women, irrespective of her age or employment status, organised or unorganised sector and includes clients, customers and domestic workers as well.
- WHAT ARE THE KEY COMPLIANCES THAT A COMPANY NEEDS TO ENSURE WITH RESPECT TO THE ACT?
The duty to curb sexual harassment at workplace is on the employer. By the ‘employer’ it means any heads and offices of government and it also includes any person who is responsible for management and supervision and controls the workplace. The key compliance that a employer need to make is constitution of Internal Committee. Then implement the recommendations given by the ICC at the workplace.
- WHAT IS THE PROCEDURE FOR COMPLAINT? HOW WILL AN AGGRIEVED WOMAN MAKE A COMPLAINT?
Any aggrieved women whose has been through sexual harassment at the workplace can make a complain to the Internal Committee constituted at the workplace, by writing to the Committee. If any such committee is not formed, then the aggrieved women can make the complaint to the Local Committee set up by the government at every district. The complaint should be made within a period of three months from the date of last incident. The description of the incident should contain date, timing, respondents name and parties working relationship.
When an aggrieved woman is unable to make a complaint on account of her health incapacity or death, her legal heir or such other person as may be prescribed may make a complaint on her behalf.
- WHAT IS THE PROCEDURE AFTER RECEIVING THE COMPLAINT?
After receiving the complaint, the Internal Committee or the Local Committee first try to settle the matter between the two parties by means of conciliation, before getting into any inquiry. If any settlement takes place, then the Committees record statement of the aggrieved and send it to the employer to take action as per the recommendations provided by them.
If the settlement is not reached between the two parties, the Committees look into inquiry of the matter.
- WHAT ARE THE OBLIGATIONS AN EMPLOYER NEED TO MAINTAIN DURING INQUIRY?
During the pendency of the inquiry, there are few obligations that the Employer need to maintain. The employer need to transfer the aggrieved woman or the respondent to any other workplace or he can give leave to the aggrieved woman for a span of three months or he can also grant her any other relief. The employer needs to abide by the recommendations given by the ICC or Local Committee.
- HOW IS COMPENSATION DETERMINED?
While deciding the amount of compensation need to be paid to the aggrieved woman, the Internal Committee or the local committee look into few factors such as the mental distress, stress and trauma faced to the aggrieved woman, the loss of career opportunity caused due to the incident, the medical expenses incurred by the victim for physical or psychiatric treatment. Moreover the side of the respondent is also taken care of. The financial status and the feasibility to pay a lump sum amount of the respondent are also taken into consideration.
- TIMELINES FOR INQUIRY
The Act for Prevention of Sexual Harassment at workplace states that the inquiry should be completed within 90 days from the inquiry started.
- WHAT IS SHE- BOX?
Ministry of Women and Child Development, Government of India has developed an online complaint management system titled Sexual Harassment electronic–Box (SHe-Box) for registering complaints related to sexual harassment at workplace by women, including government and private employees. Once a complaint is submitted to the SHe-Box portal, it directly reaches to the concerned authority having jurisdiction to take action in the matter. The portal has been developed with the objective to facilitate the registration of complaints related to sexual harassment of women at workplace. his Sexual Harassment electronic Box (SHe-Box) is an effort of Government of India to provide a single window access to every woman. This is irrespective of her work status, whether working in organised or unorganised, private or public sector. It is to facilitate the registration of complaint related to sexual harassment.
Corrida Legal is consistently rated as the best corporate and employment law firm & lawyers in Gurgaon, Delhi and Mumbai. Reach out to us on LinkedIn or contact us at contact@corridalegal.com/+91-8826680614 in case you require any legal assistance. The author of this article is Pushkar Thakur, Managing Partner at Corrida Legal. Pushkar is an ex AVP, Legal, Nomura and has led the legal teams at corporates namely Emaar India and Drake & Scull India. He represents clients before all major courts of India and has worked with Kochhar & Co., law firm. Pushkar is an expert in corporate law, contracts, litigation, employment law and data protection. Reach out to him on LinkedIn at: https://www.linkedin.com/in/pushkarthakurcorridalegal/ or pushkar.thakur@corridalegal.com. In case of urgent issues, you may call him at +91-8826680614.