Hundreds of sexual harassment complaints are coming to light with the #MeToo campaign. This article discussed the law regarding sexual harassment at workplace and what are the legal duties of employers and recourse available to victims under the Act.

In the last few weeks, India saw a surge of people coming out in the open about their horrid experiences of sexual harassment. It all started with a Bollywood actress alleging sexual harassment against a senior actor. Various actresses, journalists and others followed suit in a nation-wide campaign called #MeToo. Most of these incidents talk about sexual harassment at workplace and are related to film and media industry. This campaign encouraged people to expose the perpetrators who otherwise escaped the noose of law mostly due to the societal conditioning of victim shaming and the lack of awareness of laws regarding such crimes.

It can be said that the #MeToo campaign has gotten people talking about sexual harassment and the law aimed at prevention, prohibition and redressal of sexual harassment. This law which has been otherwise unknown to many is now being widely discussed by legal luminaries and common men alike.   

Sexual harassment is covered under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘the Act’ or ‘the POSH Act’).  In addition to the Act, the Criminal Law Amendment Act, 2013 made sexual harassment, stalking and voyeurism punishable under the Indian Penal Code, 1860.

History of laws regarding sexual harassment

Much before 2013, sexual harassment was defined and covered in the Model Standing Orders provided under the Industrial Employment (Standing Orders) Act, 1946 and Central Rules, 1946 which defined sexual harassment very similarly to how the Act defines it today. The Model Standing Orders also provided for establishment of a complaints committee.

Until 1997, there was no defined law which dealt with sexual harassment at workplace. Any complaint to this effect was generally covered in Articles 14, 15 and 21 of the Constitution of India as been against the right to equality and right to life or was treated as an offence under the provisions of the Indian Penal Code, 1860.

This status quo was changed with Supreme Court’s judgment in Vishaka v. State of Rajasthan, AIR 1997 SC 3011, which set down guidelines which came to be known as the ‘Vishaka guidelines’. These guidelines were captured in a legislation in form of the POSH Act in 2007, which came to effect in 2013.

The Act aims to provide for safe, secure and enabling environment to every woman irrespective of her age or employment status (other than domestic worker working at home which is an exception mentioned in the Act), free from all forms of sexual harassment. It also fixes the responsibility to avoid and resolve matters of harassment on the employer as well the District Officer, (who could be the District Magistrate/Additional District Magistrate/Collector/Deputy Collector) and lays down a statutory redressal mechanism.  

What is sexual harassment?

The Act defines aggrieved woman to be (i) a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the Respondent (alleged perpetrator of the crime), and (ii) in relation to a workplace and in relation to a dwelling place or work, a woman of any age who is employed in such dwelling place or house.

As per Section 2(n) of the Act, sexual harassment includes such unwelcome acts or behaviour, whether directly or by implication namely –

• Physical contact and advances
   
• Demand or request for sexual favours
   
• Making sexually coloured remarks
   
• Showing pornography
   
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
   

In addition to the above, Section 3(2) of the Act lays down additional circumstances, which may also amount to sexual harassment –

• Implied or explicit promise of preferential treatment in her employment
   
• Implied or explicit threat of detrimental treatment in her employment
   
• Implied or explicit threat about her present or future employment status
   
• Interference with her work or creating an intimidating or offensive or hostile work environment for her
   
• Humiliating treatment likely to affect her health or safety

Where can a complaint about sexual harassment be filed?

Company with more than 10 employees

A company with more than 10 employees/workmen, as per Section 2(h) of the Act, should constitute an Internal Complaints Committee (ICC) in accordance with Section 4 of the Act. The employer shall nominate the following members –

1. A Presiding Officer who shall be a woman employed at a senior level at the workplace.
    
2. Not less than two members from amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
    
3. One member from NGOs or associations committed to the cause of women or who have had experience in social work or have legal knowledge.

The Act stipulates that half of the total members shall be women and shall hold office for a term of 3 years from the date of nomination.

Although the Act mandates that a company having more than 10 employees should constitute ICC, many companies/organisations have remained oblivious. To ensure strict compliance of this provision, the Ministry of Corporate Affairs, vide the Company (Accounts) Rules, 2014 dated July 31, 2018, made it compulsory for companies to file a statement that they have complied with the provisions relating to the constitution of ICC under the Act. Section 134 of the Companies Act, 2013 contains penal provisions against the Directors of the company for non-disclosure of the statement pertaining to this compliance. The government is mulling over requesting SEBI to suitably incorporate disclosure in the corporate governance reports of listed companies. These measures could cast higher accountability on companies.

Company with less than 10 employees

The Act provides for the constitution of Local Complaints Committee (LCC) which shall receive complaints of sexual harassment from establishments where ICC has not been constituted owing to the number of employees been less than 10 or if the complaint is against the employer.

As per the Act, the government shall notify a District Magistrate/Additional District Magistrate/Collector/Deputy Collector as a District Officer in every District. Such District Officer shall constitute the LCC as per the provisions of Section 5 of the Act, which shall consist of the following members –

1. A Chairperson nominated from amongst the eminent women in the field of social work and committed to the cause of women.
    
2. One member to be nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district.
    
3. Two members, of whom at least one shall be a woman, to be nominated from amongst such NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
    
4. Concerned officer of the of the social welfare department shall be the ex-officio member of the Committee.

The Act prescribes that at least one of the nominees should preferably have a background in law or legal knowledge. The Chairperson and the members shall hold office for a term of 3years from the date of appointment.

In addition to the above, on November 07, 2017, the Ministry of Women and Child Welfare introduced a sexual harassment electronic box (SHe-Box) to provide a single window access to women, irrespective of her work status, working in organised or unorganised sector, public or private sector. Once the complaint is submitted on SHe-Box, which can be accessed here, it will be forwarded to the concerned authority having jurisdiction over the said matter.

Procedure to resolve complaints

1. Filing the complaint

Any aggrieved woman can lodge a complaint in writing with the ICC/LCC within 3 months from the date of the incident and in case of series of incidents, from the date of the last incident. This date may be extended by 3 months if the ICC/LCC is satisfied that the circumstances prevented the woman from filing the complaint within the prescribed time.

2. Conciliation

As per Section 10 of the Act, there is a provision for conciliation before initiating the inquiry, on request of the aggrieved woman. ICC/LCC will take steps to settle the matter between the aggrieved woman and the Respondent, however, no monetary settlement shall be made under such conciliation.  Further, in case of settlement, the ICC/LCC shall record the settlement so arrived and forward it to the employer/District Officer, as the case may be. The Act prescribes that once the settlement is arrived at, no further inquiry shall be initiated.

3. Inquiry

The inquiry should be conducted by the ICC/LCC as per Section 10 and 11 of the Act, along with the service/employment rules applicable to the Respondent. In case, the ICC/LCC finds prima facie case against the Respondent, it shall forward the said complaint to the police within 7 days for registering a case.

4. Interim action

Section 12 of the Act empowers the ICC/LCC to recommend interim action during the pendency of the inquiry based on the written request of the aggrieved woman. The recommendations can be of the following nature –

• Transfer the aggrieved woman or the Respondent to any other workplace.
   
• Grant leave to the aggrieved woman up to a period of 3 months and such leave would be in addition to the leaves she is otherwise entitled to.
   
• Grant such other relief as may be prescribed.

5. Submission of report

The Act mandates the ICC/LCC to submit a report to the employer/District Officer within 10 days after completion of the inquiry. If the allegations against the Respondent are not proved, then the ICC/LCC shall recommend that no action be taken against such Respondent. However, if the allegations are proved, then the ICC/LCC shall recommend to the employer/District Officer the following –

• To take action against sexual harassment as a misconduct in accordance with the service/employment rules.
   
• To deduct from the salary or wages, such amount as it may consider it to be appropriate to be paid to the aggrieved woman/her legal heir. The compensation is decided keeping in mind the mental trauma, loss of career opportunity, medical expenses, if any, of the aggrieved woman, and income and financial status of the Respondent.

In case, the employer/District Officer is unable to deduct such amount from the Respondent due to absence or cessation of employment, they shall direct the Respondent to pay such amount directly to the aggrieved woman. In case, the Respondent is unable to pay such amount, the ICC/LCC shall forward such order for recovery to the District Officer, who shall recover it as an arrear of land revenue.

Responsibility of an employer

The law exacts higher duty from the employer to prevent and redress instances of sexual harassment within their workplace. Section 19 of the Act enumerates the duties of the employer as under –

1. Provide a safe working environment which shall include safety from the persons coming into contact at the workplace which can be co-workers, staff, and visitors to the workplace.
    
2. Display, at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting the ICC.
    
3. 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.
    
4. Provide the necessary facilities to the ICC for dealing with the complaint and conducting an inquiry.
    
5. Assist in securing the attendance of the Respondent and witnesses before the ICC.
    
6. Provide complaint-relevant information to the ICC.
    
7. Provide assistance to the woman if she so chooses to file a complaint in relation to the offence.
    
8. Treat sexual harassment as a misconduct under the service/employment rules and initiate action for such misconduct.
    
9. Monitor the timely submission of report by the ICC.

The Act also mandates that the ICC/LCC shall each year submit the annual report to the employer/District Officer as the case may be. In case the employer fails to comply with the provisions of this Act, the employer shall be liable for a fine which may extend to Rs. 50,000. If the employer is convicted the second time, the employer shall be liable for twice the punishment, withdrawal/non-renewal/cancellation of the registration required for running of such business.

Takeaways for whistleblowers of the #Metoo campaign

#Metoo campaign has received immense support from all corners. However, it is not sufficient that this support ends at using this hashtag across social media. Women should be aware of their rights, duties of their employer towards them, recourse available to them under law in general and the POSH Act specifically. Only this way will the purpose of POSH Act be served and the #Metoo campaign become effective. The following legal indicators could come in handy for the campaigners –

1. Ensure that the Internal Complaints Committee is constituted in your company and/or your district has a Local Complaints Committee.
    
2. Participate actively in such bodies’ functioning.
    
3. Spread awareness about the law and recourse available to women employees in cases of sexual harassment and the duties of the employers.
    
4. Speak up and seek legal recourse as soon as you experience sexual harassment.

One specific concern the author identifies with the #Metoo campaign and the POSH Act is that it only identifies female as victims. Although women have been a soft target, with changing times, it is not only the women who are subjected to sexual harassment at workplace. Both men and women have reportedly been subjected to sexual harassment in one or the other form but, the draftsmen of this Act have not considered men as anything but perpetrators of this crime. The author opines that the Act must be gender neutral in the prevention, prohibition and redressal of sexual harassment and should be suitably amended to include all genders under the definition of aggrieved and establish similar redressal mechanisms for everyone.

DISCLAIMER:The information provided in this article is for educational purpose only. The same cannot be construed as legal advice.