Salient features of POSH at work place in India

 Q. Critically analyze the law relating to Sexual Harassment at Workplace in India?  What are the main causes for the failure in implementing the laws relating to sexual harassment?

 

 

Sexual Harassment at the Workplace

Sexual harassment is a common problem affecting all women in this world irrespective of the profession that they are in, but the legal system is sleeping and so they fail in providing them security. It’s not all, women living in those countries who have developed legal system faces other problems like being fired out of work, ridiculed, societal pressure or promises of desired promotion, etc. which makes them left with no words. Sexual harassment is about male dominance over women and it is used to remind women that they are weaker than men. In a society where violence against women is posed just to show the patriarchal value operating in society, these values of men pose the greatest challenge in curbing sexual harassment. Studies have shown that 1 out of every 3 working women is touched by sexual harassment.

Every country is facing this problem today. No female worker is safe and a sense of security is lacking in them. There are certain developments in laws of many countries to protect women workers from sexual harassment. During 2007 alone, the U.S. Equal Employment Opportunity Commission and related state agencies received 12,510 new charges of sexual harassment on the job.

Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace. Unless there is enough emphasis on sensitization at the workplace, legal changes are hardly likely to be successful. Workplaces need to frame their own comprehensive policies on how they will deal with sexual harassment. Instead of cobbling together committees at the court’s intervention, a system and a route of redress should already be in place.

Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) Physical contact and advances;
b) A demand or request for sexual favours;
c) Sexually coloured remarks;
d) Showing pornography;
e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.

India is a democratic country. All citizens have the fundamental right to live with dignity under Article 21 of the constitution of India. But there is no law specifically dealing with sexual harassment. Laws are not able to provide justice to the victims. There are various cases brought before the supreme court of India but all cases were not successful in laying down new laws for sexual harassment. In 1997, the Supreme court tried to lay down guidelines in Vishakha’s case. These guidelines were somewhat successful because in this case supreme court argued that there is a need for separate laws but it was not given the required attention.

Sexual harassment: the law
According to the law in India, sexual harassment violates women’s fundamental right to gender equality and life with dignity under article 14 and article 21 respectively. Although there are no specific laws for curbing sexual harassment at the workplace in India but certain provisions are there in other legislation like Indian Penal Code, which provides protection against women’s sexual harassment such as in IPC:

· Section 294 deals with obscene acts and songs at a public places.

· Section 354 deals with assault or criminal force against women.

· Section 376 deals with rape.

· Section 510 deals with uttering words or making gestures which outrage a women’s modesty.

There is another act passed by the legislature for protecting women’s interests namely, the Indecent Representation of Women, Act (1997). This act has not been used in cases of sexual harassment but there are certain provisions in this act which can be used in 2 ways:

1) If a person harasses another by showing books, photographs, paintings, films,etc. containing indecent representation of women then he will be liable with minimum 2yrs. imprisonment.

2) Section 7 of this act punishes companies if there is an indecent representation of women like showing pornography.

The harassed women can also go to civil courts for tortious actions like mental anguish, physical harassment, loss of income in the employment of the victim, etc.

Sexual harassment can be distinguished on two bases, one of them is quid pro quo in which a woman gets sexually harassed in exchange of work benefits and sexual favours this also leads to some retaliatory actions such as demotion and making her work in difficult conditions. Another is a ‘hostile working environment’ which imposes a duty on employers to provide women workers with positive working environment and prohibits sexist graffiti, sexual remarks showing pornography and brushing against women employees.

What is Workplace Harassment?

Definition- Workplace harassment occurs when an employee or group of employees feel threatened or get belittled by their colleagues. The sole purpose of a workplace harasser is to make their victims feel unsafe and uncomfortable.

Workplace harassment goes by various names like- “workplace bullying,” “mobbing,” “workplace aggression,” etc.

Harassment incorporates various kinds of segregation and demonstrations of infringement that is not confined to one specific group. Harassment occurs when people target multiple groups, including women, racial minorities, sexual minorities, people with disabilities, and immigrants. Fundamentally, workplace harassment requires a pluralistic arrangement since it can't be outlined in one cognizant and solid definition.

Types of Workplace Harassment

Harassment at the workplace can be of any type, whether verbal or physical harassment, sexual favours, psychological, emotional, etc. There are five major types of workplace harassment, they are:

1.    Verbal harassment

2.    Psychological harassment

3.    Cyberbullying

4.    Sexual harassment

5.    Physical harassment

Sexual Harassment: Case laws in India
There are various cases which had come before the courts in India and the judgment in most of the cases has motivated women to register more complaints as compared to earlier:
1) Apparel Export Promotion Council v. A.K Chopra
The Supreme Court in this case declared that sexual harassment is gender discrimination against women and also said that any act or attempt of molestation by a superior will constitute sexual harassment.

2) Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill
This case has changed the meaning of the terms, modesty and privacy in such a way that, any kind of harassment or inconvenience done to a women’s private or public life will be considered as an offence.

3) Vishaka & others Vs. State of Rajasthan & others
In this case Supreme Court laid down the following guidelines which recognized it not only as a private injury to an individual woman but also as the violation of her fundamental rights. These guidelines are significant because for the first time sexual harassment is identified as a separate category of legally prohibited behavior. These are subjected to all workplaces until any other legislation is passed by parliament in this regard. The guidelines are as follows:

· It is the duty of every employer to deliver a sense of security to every women employee.
· Government should make strict laws and regulations to prohibit sexual harassment.
· Any act of such nature should result in disciplinary actions and criminal proceedings should also be brought against the wrongdoer.
· The organization should have a well set up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to a reasonable time.
· This complaint mechanism should be in the form of a complaint committee which needs to be headed by a women member and at least 50% of the committee members should be women so that victims do not feel ashamed while communicating their problems. This complaint committee should also have a third party involvement in the form of an NGO or other body which is familiar with this issue. There is a need for transparency in the functioning of this committee and for that, there is a requirement to submission of the annual reports to the government.

· Issues relating to sexual harassment should not be taboo in the worker's meeting and should be discussed positively.
· It is the duty of the organisation to aware the female employees of their rights by regularly informing them about the new guidelines issued and legislation passed.
· The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim if sexual harassment takes place due to the act or omission of the third party.
· These guidelines are not limited only to government employers and should also be followed by employers in the private sector.

4) Medha Kotwal Lele & ors. v. Union of India & Ors

This case helped the Vishakha case to implement the guidelines successfully by issuing notices to all states and the union territories to impart the necessary steps.

Bill to prevent Sexual Harassment:
After a few years of the guidelines set by the Supreme Court, the first attempt was made to frame suitable draft legislation with considerable involvement of and pressure from women’s organizations. This was called “the protection against sexual harassment of women bill, 2005”. However, that too gathered dust till it was replaced by “the protection of women against sexual harassment at workplace bill, 2007” which focused specifically on SH at the workplace, the reason presumably being that the 2005 bill was too wide-ranging and hence difficult to implement. This 2007 bill was not in the spirit of Vishakha because it defines aggrieved women as “…any female/persons whether major or minor, who allies that she/they have been subject to sexual harassment...” This bill is also silent on third party harassment and is emphasizing only on harassment within the workplace. This bill treats sexual harassment as a civil dispute whereas the Vishakha guideline has provided criminal proceedings for the same. A recent amendment in the draft bill is section 12 (1) which states that “if the allegations of sexual harassment are found to be false, the complainant can be punished for it”. This provision will create a new space for employers to manipulate the evidence to stand up against women. It will abstain women from registering any complaints against the wrongdoer due to the fear that employers can take negative action against them so this part needs to be deleted.

The suggestions made above can make vishakha guideline to retain their spirit but at the same time it should also ensure that its scope should not become very extensive and riotous.

Failure in implementing the laws relating to sexual harassment:
As per the vishakha guidelines, it is made compulsory to constitute a complaint committee in every workplace but private companies hardly institute them while the government organizations just do it on paper. The organizations in which this committee exists face other serious problems as it is been reported by victims that the committee members do not even have a clue of their responsibilities, powers and duties and so this rarely leads the victim to get justice. The attitude of the employer is deep-seated as they have a presumption that this cannot happen in their organization and so the women’s complaints end up with nothing. People use to make fun of her and this makes her incapable of getting justice or being heard properly.

Section 354 (on which the ruling in the Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill was based) and section 509 of IPC is the criminal provision applied in most of the sexual harassment cases, but yet these provisions have only limited effectiveness. Therefore, we can say that there is no strong legislative stand against sexual harassment in the workplace.

A number of bills (by the national commission for women, women’s organizations and the government) have been drafted but there is still confusion on what bill would serve the purpose better. At present, the draft Protection of Women against Sexual Harassment at Workplace, 2007 is pending with the ministry of women and child development. There are certain suggestions being made by women's organizations to make changes in the bill:-

 To provide procedural training of members of the complaints committee.

 To modify provisions of section 11 (no action will be taken if the allegation against the respondent is not true) and section 12 (if a local committee concludes that the allegation against the respondent is false, than action will be taken against the complainant) of this bill.

Preventive Measures to Curb Sexual Harassment
Change in attitude of people is a basic requirement for implementing any law in the society for women. This implementation of laws leads to protection against undesired sexual behaviour. The prevention of sexual harassment should be done at all levels of employees and it should be checked that the women employees get a positive environment. We recommend the following steps that need to be taken for preventing sexual harassment at the workplace.

1. There should be a well set up complaint channel which is in direct communication with the women employee. The woman should not feel obscure in complaining about the problems she is facing during employment at the workplace. The complaint committee should take all such kinds of complaints very seriously and appropriate action must be taken within a reasonable time.

2. Women workers’ should not fear in talking about any harassment related to sex and it is their duty to immediately bring in notice to the complaint committee about any such act.

3. It is the duty of the complaint committee to keep every complaint confidential.

4. Every organisation should conduct sexual harassment awareness training for both the male and female employees. This mutual learning will help in creating an atmosphere of hostility and employees will feel comfortable. This training should also include the impacts of sexual harassment on women.

5. A commitment is required from all the levels of the organisation for the positive implementation of the policies and procedures made against sexual harassment.

6. Every employee should understand that it is his legal duty to provide every women employee a sense of security in workplace.

7. He should understand that any kind of harassment on his women employee will result in detrimental effects on her health, confidence and her potential at work which also results in her leaving the job.

8. Women should be motivated against sexual harassment and they should be asked to complain about it if they think that it is harming them in any manner they should make them realize that their complaints will not be subjected to ridicule or any kind of threat.

9. The employer should always be under fear of any kind of monetary or reputational harm which can occur if such a kind of activity happens in his company. We also think that there is a need of formulating a separate anti-sexual harassment policy dealing particularly with this issue.

10. The committee should never be biased in dealing with certain individuals of the organisation. For example, if the accused is a senior executive or partner he should not be excused just for the sake of his position and strict action should be taken against him.

Conclusion
Sexual harassment at the workplace is highly prevalent in India and there is a need to provide a positive environment to the women workers. Government should make separate laws dealing with this issue. It should also realize that women workers also constitute a part of the working population in India and it’s the duty of the government to provide them security at work. New strategies should be made by the employers and managers to protect the organisation from this evil. Government and employers should ensure that women should be treated equally and gender discrimination should not take place at the workplace. Effective implementation of the policies can reduce the manifestation and mutilation of sexual harassment to the minimum. One organisation can alter its approach to handling sexual harassment by viewing other organisations' tactics. This will reduce or eliminate glitches caused by this harmful transgression. Government should understand that separate laws may not bring about equality in gender relations but a law dealing with sexual harassment would provide women immense support in their struggle. At last, we want to say that women should not accept anything as it is because now it’s the time to speak out against all the injustice done to them
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# http://www.thefrisky.com/post/246-have-you-ever-been-sexually-harassed-at-work/
# David J. Marshall & Justine F. Andronici, "Sexual Harassment Law: A Brief Introduction for New Practitioners" http://www.kmblegal.com/
# Sheba Tejani ,“Sexual Harassment at the Workplace: Emerging Problems and Debates” http://www.jstor.org/stable/4415633.
# Vishaka & other Vs. State of Rajasthan & others (AIR 1997 SC 3011).
# Sexual harassment at the workplace, editorial- Economic and Political weekly, June 28(2008).
# J. Stanley, Linda L. Edwards, Patricia Kirtley Wells, Tort law for legal assistants,4th ed., p.209.
# Joanne Conaghan, “GENDERED HARMS AND THE LAW OF TORT: REMEDYING (SEXUAL) HARASSMENT”, Oxford journal of legal studies, vol. 16, issue 3.
# AIR 1999 SC 625
# 1995 SCC (6) 194
# Supra note 4.
# Areti Krishna Kumari, “Violence from Cradle to Grave” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970171
# Writ Petition (Crl.) No. 173-177/1999.
# Mridul Eapen, “sexual harassment: not fitting the bill”, Economic and political weekly, volume XLV, No.34 (2010)
# ibid
# Supra note 9
# Supra note 5
# ibid