“Quid Pro Quo” or “Hostile Work Environment”- Sexual harassment at workplace
Be it a bartering upgradation for inconvenient gesture or a hostile working environment, women at work are often subjected to misconduct and/or unwelcoming gestures. Sexual harassment is a serious problem in the workplace and it has become one that receives a lot of negative attention. The harsh reality of sexual harassment cases at workplace is that there is more to worry about under-reporting than people misusing the law. With the advent of the present legislation, a paradigm shift can be noticed in the way employers are made liable for the breach of law by its employees.
BY ANWESHA MISHRA
Since the ancient times, women have been treated as the inferior group and their position has been considered limited to the four walls of the kitchen. With the upgradation in civilization and the gradual onset of globalization, the definition of the method of work developed which brought significant changes to the way the world perceived the potential of women in all sectors of life. The position and status of women has immensely changed ever since. Women all around the world could finally project their strengths and fortitude to new challenges. But like a coin has two sides, on one side women rose to high positions and on the other hand they had to undergo all kinds of possible sufferings. Not just that, they had to be subjected to all kinds of wrong and immoral acts as well. This struggle could easily be identified with a word ‘Consent. With this simple word she precisely gives her answer to the person. And to understand the meaning of it is not that difficult, we believe. But with the larger influx of women in the mainstream workforce of India, sexual harassment at workplace has assumed greater dimensions.
With change being the only constant in the entire world, the #metoo movement broke out in India in the late 2018 with the actress Tanushree Dutta accusing Nana Patekar of sexual harassment during the shooting of one of the movies. The onset of the #metoo movement in India not only proved as voice for the repressed and suppressed, it also brought into attention the issue of sexual harassment in workplaces.
Workplace sexual harassment is a form of gender discrimination which snatches the rights of women to work, equality to life coded under the Constitution of India under Articles 14, 15 & 21. Sexual harassment in the workplace not only is an unacceptable behaviour, it is also detrimental for the economy. It reduces the opportunity for the women by making them feel vulnerable and frightened to think about joining the world of corporate or any other business by creating an insecure and apprehensive environment for them. This not only affects their professional performances, but also leaves a deep imprint on their psychological and emotional state.
In the society, there exist people who consider harassing a woman is a cool act since it makes them feel dominant and the latter submissive. In the offices or any kind of workplace, people ask for sexual favours in exchange of the benefits they can dispense; secondly, few persons are there who could be known as opportunist- who tries to be an attention seeker in the eyes of the women staff and thirdly, the game of power — where a senior or a superior officer would force her junior officer or colleague to do as he say.
Although, it took 16 long years to frame an Act called POSH Act, 2013. The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishakha Judgment.
GOVERNMENT’S DISCIPLINARY ACTIONS AGAINST SEXUAL HARASSMENTS AT WORKPLACES
VISAKHA CASE OF 1997
No matter how advanced the situations are in today’s life, these topics are still a taboo to discuss. Although India has been tackling such problems and has been under the view of the courts and the government recognizing it as a grave violation of women’s rights ever since the Vishakha case in 1997 was viewed. It became a landmark judgement issuing directions to the Union of India to enact an appropriate law for combating workplace sexual harassment.
According to Section 13 of the act there are two stages of enquiry, one is once the charges are found and proved the report of the same must be sent to the DC (Disciplinary Committee) and it will take action as per the service rules. This is again a time-consuming process, where the victim has to produce the evidences again and go through cross examination, which is a kind of mental torture to the victim. The case may be different with a private sector regarding the second process of enquiry, these stages or traditions are acting against the value Constitution of ICC.
Preventive Steps
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without chauvinism to the generality of this obligation they should take the following measures:
a. Express prohibition of sexual harassment at the work place should be notified, published and circulated in appropriate ways.
b. The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for adequate and appropriate penalties against the offender.
c. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (standing orders) Act, 1946.
d. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Criminal Proceedings
Where such conduct amounts to an offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.
Disciplinary Action
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Internal Complaints Committee
The complaint mechanism should be adequate to provide a complaints committee, a special counsellor or other support service, including the maintenance of confidentiality.
The complaints committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The complaint committee must make an annual report to the government department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the complaints committee to the government department.
Worker’s Initiative
Employees should be allowed to raise issues of sexual harassment at a workers’ meeting and in other suitable forum and it should be affirmatively discussed in employer-employee meetings.
Third Party Harassment
Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
The central/state governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in the private sector. These guidelines will not prejudice any rights available under the protection of human rights act, 1993.
The Sexual Harassment Act (Hereby called as an ‘Act’) was finally enacted in the year 2013 for the prevention of sexual harassment against women at workplace in the whole of India. The main objective of the act was protection of Women, prevention and redressal of sexual harassment complaints. Section 2(N)of the act defines Sexual harassment as any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
1. Physical contact and advances; or
2. A demand or request for sexual favours; or
3. Making sexually coloured remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
POSH ACT OF 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the ‘PoSH Act’ is an Indian law enacted with the objective of making workplaces safer for women by preventing, prohibiting and redressing acts of sexual harassment against them in the workplace. The law was made effective in the whole of India on December 9, 2013, by the Ministry for Women and Child Development.
Section 2(n) of the Act defines sexual harassment to include the following unwelcome acts:
i. Physical contact and sexual 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.
These acts may be considered unwelcome if the woman expresses her discomfort upon the commission of these acts, or does not consent to them.
Additionally, the following circumstances may amount to sexual harassment if they are connected with any of the acts or behaviour mentioned above.
i. Implied or explicit promise of preferential treatment in employment.
ii. Implied or explicit threat of detrimental treatment in employment.
iii. Implied or explicit threat about present or future employment status.
iv. Interference with work or creating an intimidating or offensive or hostile work environment.
v. Humiliating treatment likely to affect health or safety.
The PoSH Act protects women in the workplace from sexual harassment. All women employees regardless of whether:
i. They are employed regularly, temporary, ad hoc or daily wage basis.
ii. They are employed directly or through an agent or a contractor.
iii. They are employed with or, without the knowledge of the principal employer.
iv. They are employed for remuneration or on a voluntary basis.
v. The terms of employment are expressed or implied.
The above-mentioned are protected under the PoSH Act. The PoSH Act also applies to women contract workers, probationers, trainees, apprentices and interns.
The PoSH Act mandates the following:
The PoSH Act makes employers responsible for ensuring that the workplace is safe for its employees.
The Internal Committee (IC) is one of the two redressal bodies under the PoSH Act. Any employer of a workplace with 10 or more employees is required to constitute an IC.
The PoSH Act also requires the constitution of a Local Committee (LC) in every District which is responsible for hearing and redressing complaints of sexual harassment from workplaces that may have fewer than 10 employees.
The IC/LC, as the case maybe, is required to conduct an inquiry into every complaint of sexual harassment in accordance with the provisions of the service rules applicable to the respondent within ninety days (90 days) from the submission of the complaint.
The PoSH Act places a duty upon each employer to organize periodic sensitization workshops for all their employees so they are well versed with the provisions of the Act, the organization’s redressal procedures and the consequences of engaging in acts that constitute sexual harassment.
The PoSH Act takes into cognizance, false and malicious complaints and provides for strict action against them.
CONCLUSION
Cases of sexual abuse and harassment are prevalent throughout India in every work sector. Sexual harassment is a serious problem in the workplace and it has become one that receives a lot of negative attention. The harsh reality of sexual harassment cases at workplace is that there is more to worry about under-reporting than people misusing the law. With the advent of the present legislation, a paradigm shift can be noticed in the way employers are made liable for the breach of law by its employees. However, while the Government of India has been taking steps to monitor implementation of the 2013 Act in government offices, there is an absence of a mechanism to check execution in the private sector. The damage that is happening as a result of state apathy is unpardonable and irreparable.