Summary of Sexual Harassment Laws in India
The Handbook of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, released by the Ministry of Women and Children in November 2015.
Who is covered by the Sexual Harassment of Women at Workplaces Act?
The Act recognises the right of every woman to a safe and secure workplace environment irrespective of her age or employment/work status. This includes women with any employment status – permanent, temporary or freelance. They may be working for remuneration, on a voluntary basis or otherwise. Their terms of employment can be express or implied. Importantly, the Act also covers women working in a dwelling place or house. Thus, domestic workers have equal rights to report under this Act.
What is a workplace?
A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.” As per this definition, a workplace covers both organised and un-organised sectors.
In the digital age, this definition can be expanded to telephone conversations, texts and messages on social media.
What constitutes sexual harassment?
‘Sexual harassment’ includes any one or more of the following unwelcome acts or behaviours (whether directly or by implication):
Physical contact or advances
Demand or request for sexual favours
Making sexually coloured remarks
Showing pornography
Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
Remember that a multitude of ‘unwelcome acts and behaviours’ are included in this definition, ranging from physical advances to unwanted propositions to body shaming and sexual humour.
Very often, situations that start off innocently end up in inappropriate and unprofessional behaviours. It is important to remember that workplace sexual harassment is unwelcome, and the experience is subjective. It is the impact and not the intent that matters, and it almost always occurs in a matrix of power. It is possible that a woman may experience a single instance of sexual harassment or a series of incidents over a period of time. It is important also to remember that each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole.
This means that even an ‘unintended’ act of a sexual nature, say a suggestive remark or an inappropriate question, can be reported as a case of sexual harassment if its impact makes the recipient uncomfortable.
Who is responsible for making the work environment non-hostile?
Employers and district officers are both responsible for creating a non-hostile work environment. Employers are expected to set up an internal complaints committee (ICC) to deal with complaints within the workplace. For smaller organisations (less than ten employees), the district officer for the area is expected to set up a local complaints committee (LCC) with a nodal officer who collects complaints. The nodal officer can also take up complaints that the employer either refuses to entertain or are about the employer him/herself.
What if I want to file a complaint?
As an employee, it is your legal right to receive a copy of your workplace sexual harassment policy. If at any point you feel uncomfortable, feel free to ask HR or your ICC for information on their policy. If they do not comply, research your nearest LCC and request information from them.
For any form of redress to be implemented, the complainant must file a written complaint with the ICC (or, in rare cases, the LCC). The written complaint should contain a description of each incident. It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.
What am I entitled to as a complainant?
When it comes to redress for workplace sexual harassment, you have the right to expect a trained, skilled and competent complaints committee, a time-bound process, information confidentiality, assurance of non-retaliation, counselling or other enabling support where needed and assistance if you opt for criminal proceedings.
If you need interim measures to be taken while a complaint is pending inquiry you can make a written request for transfer or for the transfer of the respondent, or for leave (up to 3 months). You can also request the complaints committee to restrain the respondent from reporting on your work performance, writing a confidential report or supervising your academic activities (in case she is in educational institution). Even in the absence of such a request, the complaints committee must take corrective action.
What am I entitled to as a respondent?
Although, understandably, the majority of rights lie with the complainant, as a respondent who feels wrongfully accused, you are entitled to
A patient hearing to present your case in a non-biased manner
A copy of the statement along with all the evidence and a list of witnesses submitted by the complainant
Confidentiality throughout the process
Right to appeal in case not satisfied with the recommendations/findings of the complaints committee
What is the process once a complaint has been noted?
What is the difference between informal and formal resolution?
Informal resolution is what happens before a file is prepared. Generally, this involves meetings with HR and the ICC to mediate between the complainant and the respondent. In cases of minor harassment that can be resolved by making the accused aware of the impact of his/her behavior, this might be adequate.
Formal resolution takes place when it is found that informal resolution has either had little to no impact or is inadequate for the gravity of the situation. This is when a formal inquiry into the incident(s) takes place, culminating in a recommendation by the complaints committee.
What happens if the respondent is found guilty?
General service rules may exist as precedent for punishment and redress. If they do not, punishment can range from:
Disciplinary action, including a written apology, reprimand, warning, censure
Withholding promotion/pay raise/increment
Termination
Counselling
Community service
Financial compensation may also be provided.
What happens if there is inadequate proof and the complaint cannot be substantiated?
Given that most workspaces today are gender-unequal and male-dominated, it is important that complaints by women be treated fairly and not dismissed. The mere inability to substantiate a complaint or provide adequate proof will not attract legal action against the complainant. However, making a false or malicious complaint or producing a forged or misleading document is an offence.
This means that there is no legal danger to filing a complaint even if there is no evidence or verifiable proof. more
Who is covered by the Sexual Harassment of Women at Workplaces Act?
The Act recognises the right of every woman to a safe and secure workplace environment irrespective of her age or employment/work status. This includes women with any employment status – permanent, temporary or freelance. They may be working for remuneration, on a voluntary basis or otherwise. Their terms of employment can be express or implied. Importantly, the Act also covers women working in a dwelling place or house. Thus, domestic workers have equal rights to report under this Act.
What is a workplace?
A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.” As per this definition, a workplace covers both organised and un-organised sectors.
In the digital age, this definition can be expanded to telephone conversations, texts and messages on social media.
What constitutes sexual harassment?
‘Sexual harassment’ includes any one or more of the following unwelcome acts or behaviours (whether directly or by implication):
Physical contact or advances
Demand or request for sexual favours
Making sexually coloured remarks
Showing pornography
Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
Remember that a multitude of ‘unwelcome acts and behaviours’ are included in this definition, ranging from physical advances to unwanted propositions to body shaming and sexual humour.
Very often, situations that start off innocently end up in inappropriate and unprofessional behaviours. It is important to remember that workplace sexual harassment is unwelcome, and the experience is subjective. It is the impact and not the intent that matters, and it almost always occurs in a matrix of power. It is possible that a woman may experience a single instance of sexual harassment or a series of incidents over a period of time. It is important also to remember that each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole.
This means that even an ‘unintended’ act of a sexual nature, say a suggestive remark or an inappropriate question, can be reported as a case of sexual harassment if its impact makes the recipient uncomfortable.
Who is responsible for making the work environment non-hostile?
Employers and district officers are both responsible for creating a non-hostile work environment. Employers are expected to set up an internal complaints committee (ICC) to deal with complaints within the workplace. For smaller organisations (less than ten employees), the district officer for the area is expected to set up a local complaints committee (LCC) with a nodal officer who collects complaints. The nodal officer can also take up complaints that the employer either refuses to entertain or are about the employer him/herself.
What if I want to file a complaint?
As an employee, it is your legal right to receive a copy of your workplace sexual harassment policy. If at any point you feel uncomfortable, feel free to ask HR or your ICC for information on their policy. If they do not comply, research your nearest LCC and request information from them.
For any form of redress to be implemented, the complainant must file a written complaint with the ICC (or, in rare cases, the LCC). The written complaint should contain a description of each incident. It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.
What am I entitled to as a complainant?
When it comes to redress for workplace sexual harassment, you have the right to expect a trained, skilled and competent complaints committee, a time-bound process, information confidentiality, assurance of non-retaliation, counselling or other enabling support where needed and assistance if you opt for criminal proceedings.
If you need interim measures to be taken while a complaint is pending inquiry you can make a written request for transfer or for the transfer of the respondent, or for leave (up to 3 months). You can also request the complaints committee to restrain the respondent from reporting on your work performance, writing a confidential report or supervising your academic activities (in case she is in educational institution). Even in the absence of such a request, the complaints committee must take corrective action.
What am I entitled to as a respondent?
Although, understandably, the majority of rights lie with the complainant, as a respondent who feels wrongfully accused, you are entitled to
A patient hearing to present your case in a non-biased manner
A copy of the statement along with all the evidence and a list of witnesses submitted by the complainant
Confidentiality throughout the process
Right to appeal in case not satisfied with the recommendations/findings of the complaints committee
What is the process once a complaint has been noted?
What is the difference between informal and formal resolution?
Informal resolution is what happens before a file is prepared. Generally, this involves meetings with HR and the ICC to mediate between the complainant and the respondent. In cases of minor harassment that can be resolved by making the accused aware of the impact of his/her behavior, this might be adequate.
Formal resolution takes place when it is found that informal resolution has either had little to no impact or is inadequate for the gravity of the situation. This is when a formal inquiry into the incident(s) takes place, culminating in a recommendation by the complaints committee.
What happens if the respondent is found guilty?
General service rules may exist as precedent for punishment and redress. If they do not, punishment can range from:
Disciplinary action, including a written apology, reprimand, warning, censure
Withholding promotion/pay raise/increment
Termination
Counselling
Community service
Financial compensation may also be provided.
What happens if there is inadequate proof and the complaint cannot be substantiated?
Given that most workspaces today are gender-unequal and male-dominated, it is important that complaints by women be treated fairly and not dismissed. The mere inability to substantiate a complaint or provide adequate proof will not attract legal action against the complainant. However, making a false or malicious complaint or producing a forged or misleading document is an offence.
This means that there is no legal danger to filing a complaint even if there is no evidence or verifiable proof. more
Viewed by 1743
View all 21 comments Below 21 comments
Very interesting article. An eye-opener Why Indian feminists are saying yes to #MeToo & no to sex offenders list RAMA LAKSHMI 19 October, 2018 The registry faced bitter and dogmatic opposition but #MeToo is being hailed as the next wave in online feminism. It took just 10 days for India’s liberal feminists to change their stance on naming and shaming sexual assaulters, and that is the disturbing hypocrisy in the raging #MeToo campaign. Two recent developments in India’s efforts to tackle chronic sexual assault had very different reactions from liberal feminists: sex offenders’ registry and #MeToo. Many of the Indian women who are now cheering the resignation of M.J. Akbar as their first big victory in the #MeToo campaign had opposed the government’s decision to implement sex offenders registry just last month. If you look closely, both these developments are essentially doing the same – naming and shaming sexual assaulter and publicly outing the whisper networks. But the registry faced bitter and dogmatic opposition while the hashtag war called #MeToo, against predatory men who breached consent, is being hailed as the next wave in online feminism. In September, the government decided to dashboard the database of convicted sexual offenders and make it available for law enforcement officers across the country. This was a demand that came up during the national outcry that followed the 2012 protests after the fatal gang-rape of Jyoti Singh. Apart from being a crime control measure, this kind of registry can also help women equip themselves with crucial information and stay safe, many argued. But as soon as the measure was announced, a number of legal scholars, feminists and counsellors attacked the very concept, calling it a regressive measure that reduced the chance of reform and rehabilitation for the convicts. Some said rape convicts whose name appear in a registry could be discriminated against in employment, leading to profiling, and that such a list might even push them back into committing more crimes. Many quoted studies from countries that had implemented this measure – like the United States – to say it just does not work. The convict, they argued, should be prevented from being condemned to a second prison sentence socially. But why are some of these women now sharing and retweeting #MeToo stories and screenshots? The conundrum deepens because the names that have been called out on Twitter and Facebook are publicly available for all to see. The names on the registry were only for officers to use and yet found resistance. Is there a contradiction in these two acts? After all, many of the horrid experiences were shared through anonymous and unverified screenshots, yet they’ve been hailed as part of a powerful organic campaign against toxic male impunity. If naming and shaming, and warning others about the lurking predators are a good thing, the sex offenders’ registry should not have been dismissed. After all, the names of the convicts in the registry would have emerged from the ‘due process’ of the law – a police complaint, investigation, court trial, conviction and punishment. But #MeToo enthusiasts hate even the smell of ‘due process’ – I would add rightly so. That’s because due process has further victimised women and only emboldened the entitled patriarchal networks in society. One reason could be that the default mode of feminists is to distrust the state as an arbiter and facilitator in their struggles. And many feminists are liberals or leftists and are schooled to not only question top-down solutions but also believe in the idea of allowing room for individual reform. Their distrust is also because of the fault lines in India’s due process – tardy police investigations, police bias and long and expensive court trials (not to mention the number of parents who file complaints of rape against men their daughters fall in love with or elope with). Can the names that come out of this ‘due process’ be trusted to be put on a permanent state database? The transformative public conversations that were engendered by Raya Sarkar’s list last year and the recent #MeToo are a potent expression of anger against the culture of silencing that women have endured. In this collective purge, sharing stories, naming names becomes paramount. Even those who were opposed to Raya Sarkar’s list have now supported #MeToo. One reason is that in the latter, there is no single person who played gatekeeper this time. Several women were self-broadcasting their stories, or through their friends. Many women on Twitter offered to keep their DMs public and accessible so that the stories could pour in. It was more diffused than Sarkar’s list, they said. The official registry of offenders, on the other hand, has the state playing gatekeeper. India’s #MeToo is offering us new tools to negotiate the gendered universe. The established ways of fighting patriarchy are being challenged. Women must ponder whether there is any room for the state to play a role in this social-media fuelled fight. Is the state capable of being an ally or has #MeToo sidestepped the state completely? more
Oct 20
