Understanding and Addressing Sexual Harassment at the Workplace: Definitions, Legal Provisions, and Reporting Mechanisms

Understanding Sexual Harassment at the Workplace: Definitions, Provisions, and Reporting Mechanisms

Sexual harassment at the workplace is a pervasive issue that undermines the dignity and safety of employees. It not only affects the victims but also has detrimental impacts on the workplace environment and productivity. This comprehensive guide aims to provide a detailed understanding of sexual harassment at the workplace, covering definitions, legal provisions, reporting mechanisms, and seeking relief, with examples and relevant case laws.

A. Defining Sexual Harassment

Sexual harassment refers to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment.
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such an individual.
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment.

B. Examples of Sexual Harassment

• Unwanted Physical Contact or Advances:
  • Example : A manager repeatedly touches an employee’s shoulder or back inappropriately despite clear discomfort expressed by the employee.
• Requests for Sexual Favors:
  • Example : A supervisor implies that a promotion could be secured in exchange for a date or sexual favors.
• Sexually Colored Remarks:
  • Example : A colleague makes frequent sexual jokes or comments about an employee’s appearance.
• Showing Pornography:
  • Example : An employee shows explicit images or videos to a colleague during work hours.
• Unwelcome Conduct of a Sexual Nature:
  • Example : Persistent unwelcome flirting or attempts to engage in a romantic relationship despite clear disinterest from the other party.

C. Legal Provisions

In India, the primary legislation addressing sexual harassment at the workplace is the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). The Act aims to provide protection against sexual harassment of women at the workplace and for the prevention and redressal of complaints.

D. Key Provisions of the Act:

1. Definition of Aggrieved Woman:
   • The Act covers women of all ages, whether employed or not, who allege to have been subjected to any act of sexual harassment.
2. Workplace Definition:
   • The Act covers workplaces in both the organized and unorganized sectors, including:
     • Government and private sectors.
     • Hospitals and nursing homes.
     • Educational institutions.
     • Sports institutes, stadiums.
     • Any place visited by the employee during the course of employment, including transportation.
3. Employer Definition:
   • An employer is defined as:
     • Any person responsible for the management, supervision, and control of the workplace.
     • This includes the head of the department, officer, or any other person discharging contractual obligations with respect to the employees.
4. Internal Complaints Committee (ICC):
   • Every employer with more than 10 employees is required to constitute an ICC at each office or branch. The ICC should consist of:
     • A Presiding Officer (woman employee at a senior level).
     • At least two members from amongst employees committed to the cause of women or who have had experience in social work or have legal knowledge.
     • One external member from an NGO or association committed to the cause of women or a person familiar with issues relating to sexual harassment.
5. Local Complaints Committee (LCC):
   • For workplaces with fewer than 10 employees or if the complaint is against the employer, a Local Complaints Committee must be constituted by the District Officer.
6. Duties of the Employer:
   • Provide a safe working environment.
   • Display conspicuous notices about the penal consequences of sexual harassment.
   • Organize workshops and awareness programs.
   • Provide assistance to the complainant if she decides to file a complaint in relation to the offense under the Indian Penal Code or any other law.

E. Reporting Mechanism

Filing a Complaint

1. Submission of Complaint:
   • The aggrieved woman must submit a written complaint to the ICC or LCC within three months from the date of the incident. The committee may extend the time limit by another three months if there are valid reasons for the delay.
2. Assistance for Filing the Complaint:
   • If the aggrieved woman is unable to make a complaint due to physical or mental incapacity, death, or otherwise, her legal heir, relative, friend, co-worker, psychologist, or any other person who has knowledge of the incident may file the complaint on her behalf.

Inquiry Process

1. Initial Inquiry:
   • Upon receiving the complaint, the ICC or LCC must conduct a preliminary inquiry to establish the facts and decide whether the matter requires a detailed investigation.
2. Detailed Inquiry:
   • The committee must complete the inquiry within 90 days from the receipt of the complaint.
   • Both parties (complainant and respondent) should be given an opportunity to be heard and submit evidence.
3. Interim Relief:
   • During the pendency of the inquiry, the committee may recommend interim relief to the aggrieved woman, such as:
     • Transfer of the aggrieved woman or the respondent to another workplace.
     • Grant leave to the aggrieved woman up to three months.
     • Restrain the respondent from reporting on the work performance of the aggrieved woman.

F. Recommendations and Action

1. Committee’s Recommendations:
   • After the inquiry, the committee should provide a detailed report with its findings and recommendations within 10 days to the employer or the District Officer.
   • If the allegations are proven, the committee may recommend:
     • Disciplinary action against the respondent as per the service rules.
     • Deduction from the respondent’s salary or wages to be paid to the aggrieved woman as compensation.
2. Implementation of Recommendations:
   • The employer or the District Officer must act upon the recommendations within 60 days of receiving the report.

G. Seeking Relief

1. Compensation:
   • The Act allows for compensation to be paid to the aggrieved woman based on factors such as:
     • The mental trauma, pain, suffering, and emotional distress caused.
     • The loss of career opportunities due to the incident.
     • Medical expenses incurred by the victim for physical or psychiatric treatment.
     • Income and financial status of the respondent.
2. Criminal Proceedings:
   • In cases where the incident amounts to an offense under the Indian Penal Code, the victim can choose to initiate criminal proceedings alongside the complaint under the Act.

H. If the Complaint is Not Attended

1. Escalation to Higher Authorities:
   • If the complaint is not attended to or if the aggrieved woman is dissatisfied with the outcome, she can escalate the matter to higher authorities within the organization or to the District Officer.
2. Legal Recourse:
   • The victim can approach the courts for legal remedy if the employer fails to comply with the provisions of the Act.
3. Penalties for Non-Compliance:
   • Employers who do not constitute an ICC or do not comply with the requirements of the Act may face penalties, including fines up to INR 50,000/-. Repeated non-compliance can lead to higher penalties and cancellation of business licenses.

I. Case Laws Related to POSH

1. Vishaka & Others v. State of Rajasthan (1997):
   • This landmark judgment by the Supreme Court of India laid down the guidelines to be followed by establishments in dealing with complaints about sexual harassment. These guidelines formed the basis for the POSH Act.
2. Medha Kotwal Lele & Ors v. Union of India & Ors (2012):
   • The Supreme Court emphasized the need for strict compliance with the Vishaka guidelines and directed state governments to ensure the establishment of committees and mechanisms as prescribed.
3. Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008):
   • This case highlighted the importance of following due process in inquiries related to sexual harassment and the necessity of a proper functioning committee.
4. Dr. Punita K. Sodhi v. Union of India & Ors (2010):
   • The case underscored the need for unbiased and fair inquiry processes, ensuring that the complainant is not subjected to victimization.

J. Conclusion

Sexual harassment at the workplace is a grave violation of human rights and a significant barrier to achieving workplace equality. Understanding the definitions, legal provisions, and reporting mechanisms is crucial for both employees and employers to foster a safe and inclusive work environment. Employers must take proactive steps to prevent sexual harassment and ensure prompt and fair handling of complaints to protect the dignity and rights of all employees. The POSH Act provides a robust framework for addressing and redressing sexual harassment, and adherence to its provisions is essential for creating a safe workplace for everyone.

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You may read related blog, Workplace conflicts and harassments in India

Ten Key points

That provide a concise overview of the critical elements involved in addressing and managing sexual harassment at the workplace in India..

1. Definition:
   • Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that affects employment conditions or creates a hostile work environment.
2. Legal Framework:
   • The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) is the primary legislation in India addressing sexual harassment at workplaces.
3. Workplace and Employer Definition:
   • A workplace includes any place visited by the employee during the course of employment, including transportation. An employer is any person responsible for managing, supervising, or controlling the workplace.
4. Internal Complaints Committee (ICC):
   • Every organization with more than 10 employees must have an ICC to handle complaints of sexual harassment. The committee must include a senior female employee, two members committed to women’s causes or with legal knowledge, and an external member from an NGO or association.
5. Local Complaints Committee (LCC):
   • For workplaces with fewer than 10 employees or if the complaint is against the employer, the District Officer must establish an LCC.
6. Complaint Filing:
   • Aggrieved women must submit a written complaint to the ICC or LCC within three months of the incident. This period can be extended by another three months for valid reasons.
7. Inquiry Process:
   • The ICC or LCC must complete the inquiry within 90 days, providing both parties an opportunity to present their case and evidence. Interim reliefs may be recommended during the inquiry.
8. Recommendations and Implementation:
   • Post-inquiry, the committee must report its findings within 10 days. Employers must act on the recommendations within 60 days, which may include disciplinary actions and compensation.
9. Non-Compliance Penalties:
   • Employers failing to constitute an ICC or comply with the POSH Act face penalties up to INR 50,000. Repeated violations can lead to higher fines and cancellation of business licenses.
10. Notable Case Laws:

• Key judicial decisions, such as Vishaka & Others v. State of Rajasthan (1997) and Medha Kotwal Lele & Ors v. Union of India & Ors (2012), have shaped the legal landscape and enforcement of guidelines for preventing and addressing sexual harassment at workplaces.

These points provide a concise overview of the critical elements involved in addressing and managing sexual harassment at the workplace in India. Please note new criminal laws shall be applicable as applicable wherever Indian Penal Code sections has been mentioned we.f July 01, 2024.