IMPORTANT DETAILS ON PoSH & the ACT 2013

There are not many organizations who have the capacity to conduct quality training programme covering topics as varied as rights of the victims at one end and duties of representatives of employer while processing subject complaints – on the other. HR Managers also need to be trained to be responsible for sensitizing all the employees about the fine line between healthy mixing of colleagues of different sexes and the behaviour amounting to sexual harassment.

Objectives

1) Gender Issues

2) Gender Discrimination

3) Sexual Harassment

4) Workplace

5) Related Judicial Pronouncements

6) Provisions of the Act

7) Constitution of Internal Complaints Committee (ICC)

8) Duties and Roles of ICC Presiding Officer / Member

9) Third Party Harassment

10) Role of an Employer

11) Preventive Policies (organization)

12) Organizational Best Practices

13) Steps to Conduct Inquiry

 

Forms of Sexual Harassment at Workplace Sexual Harassment has traditionally been divided into two well-known forms: -

· Quid pro Quo;

· Hostile work environment

1.Quid Pro Quo‟ literally means ‗this for that‘. Applying this to sexual harassment, it means seeking sexual favours or advances in exchange for work benefits such as promises of promotion, higher pay, academic advancements etc. This type of sexual harassment mostly holds a woman to ransom as her refusal to comply with a ‗request‘ can be met with retaliatory action such as dismissal, demotion, memos, tarnished work record and difficult work conditions.

2.Hostile work environment‟ is a less clear yet more pervasive form of sexual harassment. It commonly involves conditions of work or behaviour towards a female worker, which make it unbearable for her to be there. While the worker is never promised or denied anything in this context, unwelcome sexual harassment occurs simply because she is a woman.

 

Understanding Instances of Sexual Harassment A number of surveys revealed that a number of unwelcome actions by fellow colleagues are causing harassment among women workers. Prominent of them are:

 

a) Derogatory comments of sexual nature or based on gender;

b) Presence of sexual visual material or pornographic material such as posters, cartoons, drawings, calendars, pinups, pictures, computer programs of sexual nature;

c) Written material that is sexual in nature, such as notes or e-mail containing sexual comments;

d) Comments about clothing, personal behavior, or a person‘s body;

e) Patting, stroking grabbing or pinching one‘s body;

f) Obscene phone calls;

g) Telling lies or spreading rumors about a person‘s personal or sex life;

h) Rape or attempted rape and so on.

 

Impact and Consequences

 

While it was being increasingly found difficult to find any legal remedy against such sexual overtures, nobody could deny the ill effects they cause on overall work atmosphere and productivity of any organization. The menace was causing innumerable incidents of harassment also in the unorganized sectors. Any workplace coming under the grip of this growing evil had cumulative effects on the whole organization; its impact on individual women was multiple and added up to losses for the organization as a whole. Whenever sexual harassment had become so unpleasant and make a worker‘s life miserable, she would seek redressal under the extant law such as Section 354 (outraging of modesty) or Section 509 (insulting of modesty) of the Indian Penal Code, 1890. She would also seek alternative employment. The employer would on its part, incur significant costs in defending its image and in finding suitable replacements for both the errant and the harassed members of its workforce. Generally, therefore, it had been in the interest of employers that the working environment provides that the workers are treated with dignity. Looking from the angle of human resources, sexual harassment causes a range of ill effects like:

a) Self-blame and guilt;

b) Insomnia or other sleep disturbances;

c) Depression;

 

d) Anxiety, fear, decreased interest in work;

e) Restlessness, uncertainty about future;

f) Physical or emotional withdrawal from friends, family and co-workers and so on.

 

Sections 354 and 509 IPC read as follows: 354. Assault or criminal force to woman with intent to outrage her modesty: - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.‟ 509. Word, gesture or act intended to insult the modesty of a woman. - Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, but such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.

So far undefined term ―Sexual Harassment‖ was unambiguously defined for the first time. As the Supreme Court defines: ―..For this purpose, 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.

Sections 107-109	Abetment
Sections 120A and 120B	Criminal conspiracy
Section 166A	Public servant disobeying direction under law
Sections 292-294	Obscenity
Section 306	Abetment of suicide
Sections 319-331	Relating to hurt and grievous hurt
Sections 326A and 326B	Causing grievous hurt by use of acid, etc.
Sections 339-348	Wrongful restraint and wrongful confinement
Section 354	Assault or use of criminal force to woman with intent to outrage her modesty
Section 354A	Sexual harassment
Section 354B	Assault or use of criminal force with intent to disrobe
Section 354C	Voyeurism
Section 354D	Stalking
Section 375 and related provisions	Rape
Section 376C	Sexual intercourse by a person in authority
Sections 415-417	Cheating
Sections 499-500	Defamation
Sections 503, 506 and 507	Criminal intimidation
Section 508	Act caused by inducing the person to believe that he will be rendered the object of divine displeasure.
Section 509	Word, gesture or act intended to insult the modesty of a woman

 

 

 

In case the offices of the workplace located in different places, then a separate ICC is to be constituted at each location. Failure to set up such committees is a non-cognizable offence under the law. Women grievances cells or likes which were in existence prior to enactment of the SHWWP Act cannot substitute the ICC, unless they fulfill all the statutory requirements mentioned in the Act. These Complaints Committees serve double purposes, namely, to enquire into complaints of sexual harassment at the workplace, and also to generate awareness and take preventive steps in order to ensure that the work environment is conducive to the participation of women employees.

The complainant has to submit six copies of the complaint along with all supporting documents within a period of three months from the date of incident / last date of the series of incidents happened on different dates as the case may be. The ICC has the authority to extend the time limit by another three months on reasonable ground to be recorded in writing.

Importantly, the report of the ICC/LCC is in the nature of recommendations to the employer/ District Officer. It is the employer/ District Officer which takes "action" (in the nature of punishment) on the said recommendations. When the ICC/LCC arrives at a conclusion that misconduct in the nature of sexual harassment at the workplace has been proved, it shall recommend to the employer/ District Officer that action be taken against the respondent. The action against the respondent has been listed in the 2013 Rules as follows:

• a written apology;

• a warning;

• reprimand or censure;

• withholding of pay rise or increments;

• withholding of pay rise or increments;

• termination from service;

• counseling;

• community service.

 

A copy of the report of the ICC/LCC must be provided to the concerned parties, that is, to provide interim protection to the aggrieved woman from the interference of the respondent the law empowers the ICC/LCC to issue certain interim orders during the pendency of the inquiry on the written request of the complainant. These orders could be of the following nature:

• transfer of the aggrieved woman or of the respondent to another workplace;

• grant of leave to the aggrieved woman for a period up to three months;

• restraint on the respondent from reporting on the work performance of the aggrieved woman, or from writing her confidential report, and assigning the said task to another officer;

mplainant and the respondent.

• restraint on the respondent from supervising the academic activity of the aggrieved woman, in case of an educational institution;

• such other relief as may be prescribed in the applicable law, such as service rules or standing orders or any other law.

 

These interim orders, if passed by the ICC/LCC are to be necessarily followed by the employer and a compliance report is to be submitted to the ICC, unless they are in direct contradiction with the existing service law.

Section 15 of the 2013 Act gives basic guidelines for the purpose of calculating the sum of money to be awarded to the complainant as compensation, as follows:

a. mental trauma, pain, suffering and emotional distress;

b. loss in career opportunity;

c. medical expenses (physical and psychiatric);

d. the income and financial status of the respondent;

e. the compensation amount can be paid in lump sum or installments

 

 

Section 16 & 17 of the 2013 Act, together provide an important confidentiality obligation upon all persons who are involved in the proceedings to protect the identity and addresses of the aggrieved woman, the respondent and the witnesses. Violation of this provision invites penalty in accordance with the applicable service rules, or in the manner prescribed.

Section 14 of the 2013 Act read with Rule 10 of the 2013 Rules provides for punishment of the complainant or any other person concerned in the event of false or malicious complaints, or the production of false or misleading document or evidence. The proviso to section 14 clarifies that mere inability to substantiate a complaint or provide adequate proof will not attract action against the complainant under this provision. There is an important distinction in law between a false/ malicious allegation and an allegation which is "not proved". The 2013 Act also makes it a criminal offence on the part of the employer if it fails to take action against such aggrieved woman or witness who takes recourse of falsehood.

Section 19 of the 2013 Act enumerates very important ―Duties of Employer”. Those are:

 

a. provide a safe working environment at the workplace, which shall include safety from the persons coming into contact at the workplace;

b. display at any conspicuous place in the workplace, the penal consequences of sexual harassment; and the order constituting the ICC under sub-section (1) of section 4;

c. organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the ICC in manner as may be prescribed;

d. provide necessary facilities to the ICC or the I-CC, as the case may be, for dealing with the complaint and conducting an inquiry;

e. assist in securing the attendance of the respondent and witness before the ICC or the LCC, as the case may be;

f. make available such information to the ICC or the LCC, as the case may be, as it may require having regard to the complaint made under sub-section (I) of section 9;

 

g. provide assistance to the woman if she so chooses to file a complaint in relation to the offences under the Indian Penal Code, 1860 or any other law for the time being in force;

h. cause to initiate action, under the IPC or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;

i. treat sexual harassment as a misconduct under the services rules and initiate action for such misconduct;

j. monitor the timely submission of reports by the Internal Committee.

 

Under Section 21 it is the duty of the ICC to submit an annual report, which includes the number of cases filed/disposed of every calendar year to the employer. The employer has a statutory obligation to ensure this report is included in the annual report of the organization .