MANAN CHHABRA

SEXUAL HARASSMENT
AT
WORKPLACE
FACULTY OF LAW, ICFAI, HYDERABAD
11FLUHH0102191

A REPORT ON

Sexual Harassment at Workplace- A case study

SUBMITTED BY:
Manan Chhabra

A Summer Internship report submitted in the partial fulfillment of

BBA.LLB Program of ICFAI, Hyderabad.

Submitted to:
FACULTY GUIDE

PROJECT GUIDE

Dr. L.Laxmi

Mr. Poonam Das

IBS, Hyderabad

Bhasin and Bhasin

ACKNOWLEDGEMENT

I hereby take this opportunity to thank Bhasin and Bhasin Associates for providing me an
exposure in the field of Labour Law through the course of my summer internship.
I would like to express my sincere gratitude towards my project guide Mrs. Poonam Das,
for providing me great insights about Labour Law, Firms area of practice, for guiding me
all throughout and for being a great support.
I would also like to thank Dr.L.Laxmi, my faculty guide for instructing me and giving
me her valuable advice on my project.

Thanking You,
Manan Chhabra

Table of Contents
Introduction 2
Glossary

Important Terms with respect to sexual harassment 5

Legal Aspects of Sexual Harassment at workplace 7
Extent of Sexual Harassment at workplace 9
Salient Features of Sexual Harassment Act 10
Case
Studies
.12
Cause of
Concern
.20
Cost of Non
Compliance..2
1
Recommendations and
Suggestions.22
Analysis/
Conclusion..
.24

Introduction
Sexual harassment at the workplace is not a new thing but centuries old-at least if we
define sexual harassment as unwanted sexual relations imposed by superiors on the
subordinates. Sixty per cent of working women have faced sexual harassment at some
point of time in their working lives. For every woman who raises an outcry, there are
hundreds of others who suffer in silence, quit their jobs or get transfers.
For years, sexual harassment was considered an unavoidable part of a working woman's
life. Now awareness is slowly rising that no woman (employee) should humbly accept
sexual harassment as part of her/his lot.
Women have faced coercion at the workplace since time immemorial to the extent of
grave physical and mental injury. Most modern accounts of history of sexual harassment
at the workplace agree that recognition of this problem gathered momentum from the
early 20th Century.
Sexual harassment has been recognized as most intimidating, most violating form of
violence since long in countries like UK, USA and many countries have not only taken
note of how degrading experiences of sexual harassment can be for women as well as
employers but have adapted legislative measures to combat sexual harassment.
Quid pro quo and hostile work environment are the two broad types of sexual
harassment.
Sexual harassment at workplace is generally classified into two distinct types. 'Quid pro
quo', means seeking sexual favors or advances in exchange for work benefits and it occurs
when consent to sexually explicit behavior or speech is made a condition for employment
or refusal to comply with a 'request' is met with retaliatory action such as dismissal,
demotion, difficult work conditions. 'Hostile working environment' is more pervasive
form of sexual harassment involving work conditions or behavior that make the work
environment 'hostile' for the woman to be in. Certain sexist remarks, display of
pornography or sexist/obscene graffiti, physical contact/brushing against female
employees are some examples of hostile work environment, which are not made
conditions for employment.

Glossary
Workplace:
The workplace is any area where the employee is required to represent, carry out, perform
or implement any duties, obligations or services required. By this token, a home would be
a workplace for a domestic maid. For a person engaged in a field job, the area that she/he
covers in the course of her/his work represents her workplace.
Sexual harassment:
Sexual harassment is described as harassment in subtle ways, which may include sexual
implications, inappropriate sexual gestures and propositions for dates or sexual favors. In
more blatant forms, such harassment may include leering, pinching, grabbing, hugging,
patting,

brushing

against

and

touching.

The Supreme Court's guidelines describe physical contact or advances; demand or request
for sexual favors; sexually colored remarks and showing pornography as offensive
conduct.
Sexual harassment becomes even more serious when the granting of sexual favors is made
a term or condition of the individual's employment, when it interferes with the individual's
work performance or it creates an intimidating or hostile work environment. The offensive
conduct could be exhibited by a superior, a colleague, a subordinate or a client

Guidelines governing Sexual Harassment at the workplace:

Sexual harassment results in the violation of the fundamental right to "gender equality"
and "the right to life and liberty" besides the right under Article 15 of the Constitution
(which deals with the prohibition of discrimination on grounds of religion, race, caste,
creed or sex).
Keeping these rights in mind, the Supreme Court has passed twelve guidelines that have
the force of law. They were taken by a division bench as there was "an absence of enacted
law to provide for the effective enforcement of the basic human right of gender equality
and guarantee against sexual harassment at the workplace." These guidelines are to be
observed until legislation is enacted (ACT of 2013).
Some of these guidelines are:
It shall be the duty of the employer or other accountable persons in the workplace or
other institutions to prevent or deter the commission of acts of sexual harassment and to
provide the procedure for the resolution, settlement or prosecution of acts of sexual
harassment.
The employer should initiate action in accordance with the law by making a complaint
with the appropriate authority. Victims should have an option to seek their own transfer or
that of the perpetrator.
A complaint mechanism should be created in the organization. This complaint mechanism
should ensure time-bound treatment of complaints. The complaints committee should be
headed by a woman and not less than half of its members should be women. In order to
prevent the possibility of undue pressure or influence from senior levels, a third party,
especially an NGO familiar with sexual harassment, should be involved in the complaints
committee.
The committee must submit an annual report to the government. Employees must be
allowed to raise the issue of sexual harassment at various group meetings.
The guidelines also provide for the initiation of criminal proceedings where sexual
harassment is proved beyond doubt.
Employer's responsibility:
The employer is responsible for creating appropriate working conditions for health, work,
4

leisure and hygiene. When the victim complains to the employer, the burden is on the
employer to make apt investigations. If the employer does not pay attention to the
complaint, he can be held responsible. The employer must set up a complaint mechanism
in each department of the company. The Supreme Court's guidelines are binding on
Central and State governments and the private and public sector.

IMPORTANT TERMS WITH RESPECT TO SEXUAL HARASSMENT

UNWELCOME BEHAVIOUR is the critical word. Unwelcome does not mean
"involuntary." A victim may consent or agree to certain conduct and actively participate in
it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome
whenever the person subjected to it considers it unwelcome. Whether the person in fact
welcomed a request for a date, sex-oriented comment, or joke depends on all the
circumstances.
SEXISM is an attitude. It is an attitude of a person of one sex that he or she is superior to
a person of the other sex.
For example, a man thinks that women are too emotional. Or a woman thinks that men are
chauvinists.
SEX DISCRIMINATION is a behavior. It occurs when employment decisions are based
on an employees sex or when an employee is treated differently because of his or her sex.
For example, a female supervisor always asks the male employees, in a coed workplace,
to move the boxes of computer paper. Or, a male supervisor always asks the female
employees, in a coed workplace to plan office parties.
SEXUAL HARASSMENT is a behavior. It is defined as unwelcome behavior of a sexual
nature.
For example, a man whistles at a woman when she walks by. Or a woman looks a man up
and down when he walks towards her.
SUBTLE SEXUAL HARASSMENT is a behavior but not a legal term. It is unwelcome
behavior of a sexual nature that if allowed to continue could create a
QUID PRO QUO and/or a Hostile Work Environment for the recipient.
For example, unwelcome sexual comments, jokes, and innuendoes.

QUID PRO QUO HARASSMENT is when employment and/or employment decisions for
an employee are based on that employees acceptance or rejection of unwelcome sexual
behavior.
For example, a supervisor fires an employee because that employee will not go out with
him or her.
HOSTILE WORK ENVIRONMENT is a work environment created by unwelcome
sexual behavior or behavior directed at an employee because of that employee's sex that is
offensive, hostile and/or intimidating and that adversely affects that employee's ability to
do his or her job.
For example, pervasive unwelcome sexual comments or jokes that continue even though
the recipient has indicated that those behaviors are unwelcome.

LEGAL ASPECTS OF SEXUAL HARASSMENT AT WORKPLACE

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way
of publication in the Gazette of India.
As this issue of sexual harassment of women at workplace is now a globally recognized
problem and the prohibition against it is almost universal in nature. Indias ratification of
the convention on Elimination of All forms of Discrimination against Women at
Workplace, (CEDAW) in 1993, which binds the state parties (countries who ratify the
document) to prevent and prohibit Sexual Harassment of Women at Workplace.
The Sexual Harassment Act has been enacted with the objective of providing women
protection against sexual harassment at the workplace and for the prevention and redressal
of complaints of sexual harassment. Sexual harassment is considered as a violation of the
fundamental right of a woman to equality as guaranteed under Articles 14 and 15 of the
Constitution of India ("Constitution") and her right to life and to live with dignity as per
Article 21 of the Constitution.
The statute has been enacted almost 16 years after the Supreme Court of India, in its
landmark judgment in Vishaka and others v. State of Rajasthan ("Vishaka Judgement") ,
laid down guidelines making it obligatory for every employer to provide a mechanism to
redress grievances relating to workplace sexual harassment and enforce the right to gender
equality of working women ("Guidelines"). Codification of the requirements is a muchawaited development and is a significant step towards creating awareness on the issue of
workplace sexual harassment and ensuring women a safe and healthy work environment.
The Act has adopted the definition of 'sexual harassment' from Vishaka Judgment and the
term sexual harassment includes any unwelcome acts or behavior (whether directly or by
implication) such as physical contact and advances, demand or request for sexual favors,
making sexually colored remarks, showing pornography or any other unwelcome
physical, verbal or non-verbal conduct of sexual nature.

In, Apparel Export Promotion Council Vs. A.K. Chopra1, the Hon'ble Supreme Court
while deciding an issue whether the act of a superior officer (wherein such superior officer
tried to molest his junior woman employee) would amount to sexual harassment, the
Court relied on the definition of the term 'sexual harassment' laid down by the Supreme
Court in the Vishaka Judgment (which is similar to the definition of the Sexual
Harassment provided in the Act) held that "the act of the respondent was unbecoming of
good conduct and behavior expected from a superior officer and undoubtedly amounted to
sexual harassment.
Section 3 of the Act provides that no woman shall be subjected to sexual harassment at
any workplace. This section further provides the circumstances which if present or
connected with any act or behavior of sexual harassment may amount to sexual
harassment such as implied or expressed promise to preferential treatment or implied or
explicit threat of detrimental treatment in her employment, implied or explicit threat about
her present or future employment, interference with work or creating an intimidating or
offensive or hostile work environment, humiliating treatment likely to affect health or
safety of a woman

1 1997 IIAD Delhi 12, 66 (1997) DLT 327

9

EXTENT OF SEXUAL HARASSMENT AT WORKPLACE-INDIAN

CONTEXT
Most of the researches tell that, in terms of who is most likely to be harassed in the
Workplace are most likely women. Amongst all the twenty-two countries covered by the
IPSOS Reuters survey (2010), India recorded highest incidence of sexual harassment.
Similarly Centre for Transforming India survey (2010) revealed that nearly 88 percent of
women witnessed some form of workplace sexual harassment during the course of their
work. Additionally, the survey found that there were poor awareness levels among female
employees on workplace sexual harassment and therefore majority of them continued with
their ordeal of suffering due to fear of professional victimization.
Early 1990s had many countries enacting specific legislations on sexual harassment
happening at workplaces. India saw enactment Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act in April 2013. It is important to
note even before the said law was enacted, the Supreme Court of India for the first time
recognized the existence of sexual harassment at workplace, and the need for legal
recourse for the same in its landmark decision i.e. Vishakha and Others vs. State of
Rajasthan and Others (1997).
The newly enacted Act in India on sexual harassment builds on the Supreme Court
Vishakha guidelines. The Act recognizes that every woman has a right to work with
dignity and sexual harassment as violation of fundamental rights of working women.

10

SALIENT FEATURES OF THE SEXUAL HARASSMENT ACT, 2013

Scope: The ambit of the Sexual Harassment Act, 2013 is very wide and is
applicable to the organized sector as well as the unorganized sector. In view of the
wide definition of 'workplace', the statute, inter alia, applies to government bodies,
private and public sector organizations, non-governmental organizations,
organizations carrying on commercial, vocational, educational, entertainment,
industrial, financial activities, hospitals and nursing homes, educational institutes,
sports institutions and stadiums used for training individuals. As per the Sexual
Harassment Act, a workplace also covers within its scope places visited by
employees during the course of employment or for reasons arising out of
employment including transportation provided by the employer for the purpose
of

commuting

to

and

from

the

place

of

employment.

The definition of 'employee' under the Sexual Harassment Act is fairly wide and
covers regular, temporary, ad hoc employees, individuals engaged on daily wage
basis, either directly or through an agent, contract labor, co-workers, probationers,
trainees, and apprentices, with or without the knowledge of the principal employer,
whether for remuneration or not, working on a voluntary basis or otherwise,
whether the terms of employment are express or implied.
Internal Complaints Committee and Local Complaints Committee: The
Sexual Harassment Act requires an employer to set up an Internal Complaints
Committee' (ICC) at each office or branch, of an organization employing at least
10 employees. The government is in turn required to set up a Local Complaints
Committees (LCC) at the district level to investigate complaints regarding sexual
harassment from establishments where the ICC has not been constituted on
account of the establishment having less than 10 employees or if the complaint is
against the employer. The Sexual Harassment Act also sets out the constitution of
the committees, process to be followed for making a complaint and inquiring into
the complaint in a time bound manner.
Interim Reliefs: The Sexual Harassment Act empowers the ICC and the LCC to
recommend to the employer, at the request of the aggrieved employee, interim
11

measures such as (i) transfer of the aggrieved woman or the respondent to any
other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3
months in addition to her regular statutory/ contractual leave entitlement.
Process for Complaint and Inquiry: Please refer to the following flowchart
which provides, in brief, the process to be followed by the aggrieved employee to
make the complaint and by the employer to inquire into the complaint. The law
allows female employees to request for conciliation in order to settle the matter
although a monetary settlement should not be made as a basis of conciliation.
Action against Frivolous Complaints: So as to ensure that the protections
contemplated under the Sexual Harassment Act do not get misused, provisions for
action against "false or malicious" complainants have been made.

12

CASE STUDY- VISHAKA VS. STATE OF RAJASTHAN2

The litigation resulted from a brutal gang rape of a publicly employed social worker in a
village in Rajasthan during the course of her employment. The petitioners bringing the
action were various social activists and non-governmental organizations. The primary
basis of bringing such an action to the Supreme Court in India was to find suitable
methods for the realization of the true concept of gender equality in the workplace for
women. In turn, the prevention of sexual harassment of women would be addressed by
applying the judicial process.
Under Article 32 of the Indian Constitution, an action was filed in order to establish the
enforcement of the fundamental rights relating to the women in the workplace. In
particular it sought to establish the enforcement of Articles 14, 15, 19(1) (g) and 21 of the
Constitution of India and Articles 11 and 24 of the Convention on the Elimination of
All Forms of Discrimination against Women.
Law
Constitution of India
Article 14 (the right to equality)
Article 15 (the right to non-discrimination)
Article 19(1) (g) (the right to practice ones profession)
Article 21 (the right to life)
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Article 11 ([State] takes all appropriate measures to eliminate discrimination against
women in the field of employment)
Article 24 ([State shall] undertake to adopt all necessary measures at the national level
aimed at achieving the full realization)
Decision
In disposing of the writ petition with directions, it was held that:
The fundamental right to carry on any occupation, trade or profession depends on the
availability of a safe working environment. The right to life means life with dignity. The
primary responsibility for ensuring such safety and dignity through suitable legislation,
and the creation of a mechanism for its enforcement, belongs to the legislature and the
2 AIR 1997 SUPREME COURT 3011
13

executive. When, however, instances of sexual harassment resulting in violations of Arts

14,
19 and 21 are brought under Art 32, effective redress requires that some guidelines for the
protection of these rights should be laid down to fill the legislative vacuum.
In light of these deliberations, the Court outlined guidelines which were to be observed in
order to enforce the rights of gender equality and to prevent discrimination for women in
the workplace.
These guidelines included the responsibility upon the employer to prevent or deter the
commission of acts of sexual harassment and to apply the appropriate settlement and
resolutions and a definition of sexual harassment which includes unwelcome sexually
determined behavior (whether directly or by implication) such as:
physical contact and advances;
A demand or request for sexual favors;
Sexually-colored remarks;
showing pornography;
Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Furthermore the guidelines set out that persons in charge of a workplace in the public or
private sector would be responsible for taking the appropriate steps to prevent sexual
harassment by taking the appropriate steps, including:
The prohibition of sexual harassment should be published in the appropriate ways and
providing the appropriate penalties against the offender;
For private employees, the guidelines should be included in the relevant employment
guidelines;
Apt working conditions in order to provide environments for women that are not hostile
in order to establish reasonable grounds for discrimination;
The employer should ensure the protection of potential petitioners against victimization
or discrimination during potential proceedings;
An appropriate complaints mechanism should be established in the workplace with the
appropriate redress mechanism;
Where sexual harassment befalls 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.
14

Finally, the court stated that the guidelines are to be treated as a declaration of law in
accordance with Article 1413 of the Constitution until the enactment of appropriate
legislation and that the guidelines do not prejudice any rights available under the
Protection of Human Rights Act 1993.
The Vishakha guidelines categorically state that: 4
It is the duty of the employer or other responsible persons in the workplace or institution
to:

Prevent sexual harassment

Provide mechanisms for the resolution of complaints

All women who draw a regular salary, receive an honorarium, or work in a voluntary
capacity in the government, private sector or unorganized sector come under the purview
of these guidelines.
Complaints mechanism

All workplaces should have an appropriate complaints mechanism with a

complaints committee, special counsellor or other support services.

A woman must head the complaints committee and no less than half its members
should be women.

The committee should include an NGO/individual familiar with the issue of sexual
harassment.

The complaints procedure must be time-bound.

Confidentiality must be maintained.

3 Article 141: The law declared by the Supreme Court shall be binding on all courts within the territory of India.
4 A brief history of the battle against sexual harassment at the workplace; by Vibhuti patel (infochangeindia.org)

15

Complainants/witnesses should not experience victimization/discrimination during

the process.

Preventive steps

Sexual harassment should be affirmatively discussed at workers' meetings,

employer-employee meetings, etc.

Guidelines should be prominently displayed to create awareness about the rights of

female employees.

The employer should assist persons affected in cases of sexual harassment by

outsiders.

Central and state governments must adopt measures, including legislation, to

ensure that private employers also observe the guidelines.

Names and contact numbers of members of the complaints committee must be

prominently displayed.

Employers' responsibilities

Recognize sexual harassment as a serious offence.

Recognize the responsibility of the company/ factory/workplace to prevent and

deal with sexual harassment at the workplace.

Recognize the liability of the company, etc., for sexual harassment by the
employees or management. Employers are not necessarily insulated from that
liability because they were not aware of sexual harassment by staff.

Formulate an anti-sexual harassment policy. This should include:

* A clear statement of the employer's commitment to a workplace free of unlawful

discrimination

and

harassment.

* Clear definition of sexual harassment (using examples), and prohibition of such

16

behavior

as

an

offence.

* Constitution of a complaints committee to investigate, mediate, counsel and resolve

cases of sexual harassment. The Supreme Court guidelines envisage a proactive role for
the complaints committee, and prevention of sexual harassment at work is a crucial role. It
is thus imperative that the committee consist of persons who are sensitive and open to the
issues

faced

by

women.

* A statement that anyone found guilty of harassment after investigation will be subject to
disciplinary action.

The range of penalties that the complaints committee can levy against the
offender should include:

* Explicit protection of the confidentiality of the victim of harassment and of witnesses.

* A guarantee that neither complainant nor witnesses will be subjected to retaliation.
* Publishing the policy and making copies available at the workplace. Discussing the
policy with all new recruits and existing employees. Third-party suppliers and clients
should

also

be

aware

of

the

policy.

* Conducting periodic training for all employees, with active involvement of the
complaints committee.
Employers' duty
Freedom from sexual harassment is a condition of work that an employee is entitled to
expect. Women's rights at the workplace are human rights.

17

CASE STUDY-MEDHA KOTWAL LELE VS UNION OF INDIA5

The case arises against a background of the long-running attempt to tackle the problem of
sexual harassment of women at work in India, both through the courts and before the
legislature.
In 1997, in a landmark case before the Supreme Court of India stemming from the brutal
gang rape of a publicly employed social worker at work (Vishaka and Others v. State of
Rajasthan and Others (1997) 6 SCC 241), the Court stated that a womans Constitutional
rights to life (with dignity), to equality and to practice any profession or carry out any
occupation, demanded safeguards against sexual harassment in the workplace. In the
absence of legislative safeguards, the Court, stated that an affective alternative
mechanism was needed to prevent violations of these fundamental rights in the
workplace. To that end, the Court established guidelines
(Vishaka Guidelines) with regards to the prevention and redress of sexual harassment in
the workplace. These set out a series of obligations on employers to prevent aor deter acts
of sexual harassment and to remedy occasions where such acts take place. The Court
stated that the Vishaka Guidelines were to be treated as a declaration of law and to apply
until relevant protective legislation was enacted by the Parliament.
Since then, the Protection of Women against Sexual Harassment at Workplace Bill
2010, which seeks to provide the requisite protection, has been passed by the Lok Sabha
(the lower house of Parliament) in September 2012. It is currently pending in the Rajya
Sabha (the upper house of Parliament) and so is not yet in force. The present case arose
when Medha Kotwal Lele, coordinator of Aalochana, a center for documentation and
research on women and other womens rights groups, together with others, petitioned the
Court highlighting a number of individual cases of sexual harassment and arguing that the
Vishaka Guidelines were not being effectively implemented. In particular, the petitioners
argued that, despite the guidelines, women continued to be harassed in the workplace
because the Vishaka Guidelines were being breached in both substance and spirit by state
functionaries who harass women workers via legal and extra legal means, making them
suffer and by insulting their dignity.

5 Application Number: 2012 STPL (Web) 616 SC Jurisdiction

18

The Court was specifically required to consider whether individual state governments had
made the changes to procedure and policy required by the Vishaka Guidelines and a
number of earlier orders of the Court.
Law
Article 141 Constitution of India
The Vishaka Guidelines
Protection of Women against Sexual Harassment Bill 2010 (the Bill) still pending.
Central Civil Service (conduct) Rules, 1964 (CCS Rules)
Industrial Employment (Standing Orders) Rules.
Decision
The Court stated that the Vishaka Guidelines had to be implemented in form, substance
and spirit in order to help bring gender parity by ensuring women can work with dignity,
decency and due respect. It noted that the Vishaka Guidelines require both employers and
other responsible persons or institutions to observe them and to help prevent sexual
harassment of women.
The Court held that a number of states were falling short in this regard. It referred back to
its earlier findings on 17 January 2006, that the Vishaka Guidelines had not been properly
implemented by various States and Departments in India and referred to the direction it
provided on that occasion to help to achieve better coordination and implementation. The
Court went on to note that some states appeared not to have implemented earlier Court
decisions which had required them to make their legislation compliant with the Vishaka
Guidelines. It noted that some states had only amended certain aspects of their legislations
rather than carrying out all required amendments and others had taken even less action.
Accordingly, it held that the Vishaka Guidelines should not remain just symbolic but
rather shall provide direction until the legislative enactment of the Bill. Hence, holding
that a number of states had not done everything required to comply with the Guidelines,
the Court provided the following directions:
States governments must make the necessary amendments to their CCS Rules and
Standing Orders within two months of the date of judgment.
States governments must ensure there is an adequate number of Complaint Committees
within each state to hear complaints and that such Committees are headed up by a woman.
State functionaries must put in place sufficient mechanisms to ensure effective
19

Implementation of the Vishaka Guidelines.

The Bar Council of India shall ensure that all bar associations in the country and persons
registered with the State Bar Councils follow the Vishaka Guidelines. Similarly, the
Medical Council of India, Council of Architecture, Institute of Chartered Accountants,
Institute of Company Secretaries and other statutory Institutes shall ensure that the
organizations, bodies, associations, institutions and persons registered/affiliated with them
follow the Vishaka Guidelines.
Finally, the Court stated that, in the event of non-compliance to the Vishaka Guidelines,
the
Courts orders and/or directions above, aggrieved persons should approach the High Court
of the state concerned.

20

LOW AWARNESS AMONG EMPLOYEES-A CAUSE OF CONCERN

Corporate workplaces have become increasingly informal over time and it is not
uncommon for employees to socialize beyond work hours. Teams may gather for various
recreational activities Global points of presence also lead to have employees traveling for
meetings, events and conferences. In such scenarios, employers have to ensure that
individuals maintain proper decorum around their co-workers. A stray remark here, a
colorful comment there and the aftermath could result in a volatile situation.
The importance of training and awareness is crucial. The survey revealed that 21% of the
respondents organizations did not have general awareness campaigns aimed at their
employees. According to 44%, their organizations did not display the penal consequences
of sexual harassments at prominent locations. Indian companies ranked low, standing at
50% as compared to MNCs which stood at 40%.
Small and medium companies too fared low with 71% of the respondents indicating that
their organizations did not display such warnings clearly.
One of the issues in such circumstances is inadequate training for employees, especially
new joiners. With new recruitments, it is important to drive a companys stance on such
matters so that they can understand early its core values, 46% of companies do not have
online modules for training new employees. The situation is worse in small and medium
companies where 71% do not have such modules.6

6 Survey by Fraud Investigation and Disputes Services (Reining in Sexual Harassment at

workplace in India )
21

COST OF NON COMPILANCE

There are dire consequences in store for companies that do not comply with the Act or
contravene any of its provisions.
In addition, non-compliance with its rules can put a companys productivity as well.
Among the respondents, 35% were unaware of the penal consequences for noncompliance. When constituting ICCs.7
The issue was more pronounced among MNCs with almost 38% stating their ignorance.
This indicates that they do not comprehend the losses possible through their
obliviousness.
Apathy was rampant among small and medium-sized companies, with 38% of the
respondents being unaware of the repercussions of their non-compliance. The Government
is ramping up action against non-compliant companies and they need to understand the
severe consequences they could be presented with.
An employer will be liable to a fine of Rs 50,000 in case of violation of his duties under
the Act and in case of subsequent violations the amount of fine will be double together
with penalty in the form of cancelation of his license, withdrawal or non-withdrawal of
the registration required for carrying out his activity.

7 Survey by Fraud Investigation and Disputes Services (Reining in Sexual Harassment at

workplace in India )
22

RECOMMENDATION AND SUGGESTIONS

EMPLOYER'S OBLIGATIONS
In addition to ensuring compliance with the other provisions stipulated, the Sexual
Harassment Act casts certain obligations upon the employer to, inter alia,
i. Provide a safe working environment
ii. Display noticeably at the workplace, the penal consequences of indulging in acts
that may constitute sexual harassment and the composition of the Internal
Complaints Committee
iii. Organize workshops and awareness programs at regular intervals for sensitizing
employees on the issues and implications of workplace sexual harassment and
organizing orientation programs for members of the Internal Complaints
Committee
iv. Treat sexual harassment as a misconduct under the service rules and initiate action
for misconduct.
The employer is also required to monitor the timely submission of reports by the ICC.
If an employer fails to constitute an Internal Complaints Committee or does not comply
with any provisions contained therein, the Sexual Harassment Act prescribes a monetary
penalty of up to INR 50,000. A repetition of the same offence could result in the
punishment being doubled and / or de-registration of the entity or revocation of any
statutory business licenses.
CRIMINAL PROCEEDINGS
Where such conduct amounts to a specific offence under the Indian Penal Code 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. The victims of sexual harassment should have the option
to seek transfer of the perpetrator or their own transfer.
COMPLAINT MECHANISM
Whether or not such conduct constitutes an offence under law or a breach of the service
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rules, an appropriate complaint mechanism should be created in the employers

organization for redress of the complaint made by the victim. Such complaint mechanism
should ensure time bound treatment of complaints.
COMPLAINT COMITTEE
The complaint mechanism, referred to above, should be adequate to provide, where
necessary, 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 Complaints 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.
EMPLOYEES INITIATIVE
Employees should be allowed to raise issues of sexual harassment at a workers meeting and in
other appropriate forum and it should be affirmatively discussed in Employer- Employee
Meetings.
CIVIL SUIT
A civil suit can be filed for damages under tort laws. That is, the basis for filing the case
would be mental anguish, physical harassment, loss of income and employment caused by
the sexual harassment.
CRIMINAL ENACTMENT (Indian Penal Code)
As a result of the growing importance of the issues relating to sexual harassment and
protection of female employees in India, a new section 8 was added to the Indian Penal
Code, 1860 through the Criminal Law (Amendment) Act, 2013 9, which enlists the acts
8 Section 2(o), Sexual Harassment Act, 2013
9 Section 354A, Indian Penal Code, 1860
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which constitute the offence of sexual harassment and further envisages penalty /
punishment for such acts. A man committing an offence under this section is punishable
with imprisonment, the term of which may range between 1 - 3 years or with fine or both.
Since the amendment criminalizes all acts of sexual harassment, employers shall be
required to report any offences of sexual harassment to the appropriate authorities.

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ANALYSIS/ CONCLUSION
a. The Sexual Harassment Act only addresses the issue of protection of women
employees and is not gender neutral. Male employees, if subjected to sexual
harassment, cannot claim protection or relief under the law.
b. The definition of 'aggrieved woman' does not make a reference to victimization
(on the part of the employer) of the employee who has made the complaint of
harassment, which would be fairly common in such situations. This was in fact an
important recommendation of the Standing Committee. The definition of the
'sexual harassment', the words 'verbal, textual, physical, graphic or electronic
actions' should have been added in order for the purposes of clarity, as it would
cover some of the technological developments.
c. It may become a challenge for employers to constitute an ICC at all administrative
units or offices. It may also become necessary for the employer to spend more time
and efforts in training members of the ICC who are to be replaced every 3 years.
There is also a lack of clarity as to who shall be a chairperson of the ICC in
absence of a senior level female employee. Also, in such cases, the composition of
the committee members should ideally have been an odd number in order for the
committee to arrive at a decision based on majority.
d. The ICC also needs to involve a member from amongst non-governmental
organizations or associations committed to the cause of women or who have had
experience in social work or have legal knowledge. Employers may not be
comfortable with such an external representation, considering the sensitivities
surrounding this issue and the need to maintain strict confidentiality.
e. The law casts an obligation upon the employer to address the grievances in respect
of sexual harassment at workplace in a time bound manner, which in several cases
may not be practically possible as the employees or witnesses involved may not
easily or readily co-operate.
f. The law allows the employer to initiate action against the complainant in case of a
false or malicious complaint. This provision, although meant to protect the
employer's interests, is likely to deter victims from reporting such incidents and
filing complaints, which may in turn defeat the purpose for which the law was
enacted.
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g. In case the accusation has been proved, the Sexual Harassment Act allows the ICC
to recommend to the employer to deduct from the respondent's salary such sums it
may consider appropriate to be paid to the aggrieved woman. However, there may
need to be made certain corresponding changes to the Payment of Wages Act, 1936
of India, which restricts the nature of deductions that may be made from an
employee's salary.
h. Considering that India has a diverse set of religions, cultures, castes, languages,
etc. the government also needs to start focusing on providing protection for some
of the other forms of harassment, which is fairly common in several of the
developed countries (same sex harassment).

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Figure 1 POSITION OF SEXUAL HARASSMENT IN INDIA (AS PER THE ACT)

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