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Prevalence and Impact of Sexual Harassment at Workplace

Sexual harassment is a common problem affecting all women in this world irrespective of the profession that they are in, but legal system is sleeping and so they fail in providing them security. It's not all, women living in those countries having developed legal system faces other problems like being fired out of work, ridiculed, societal pressure or promises of desired promotion, etc.

That 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 man. 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 are touched by sexual harassment.

This statute superseded the Vishaka Guidelines for Prevention Of Sexual Harassment (POSH) introduced by the Supreme Court (SC) of India. It was reported by the International Labour Organization that very few Indian employers were compliant to this statute.[4][failed verification][5] Most Indian employers have not implemented the law despite the legal requirement that any workplace with more than 10 employees need to implement it.[6]

According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013.[7] The government has threatened to take stern action against employers who fail to comply with this law.[8]

What Is Sexual Harassment?

Sexual harassment has been identified as a term which is difficult to define as it involves a range of behaviors. Efforts have been made at both national and international levels to define this term effectively. Often, the term is subjected to different interpretations. Some believe that it is better not to mingle with female colleagues so that one does not get embroiled in a sexual harassment complaint. The reality of sexual harassment incidents at the workplace is that there is more to worry about under-reporting, than people misusing the law.

In 1997, in the landmark judgment of Vishaka and others v. State of Rajasthan[1], the Supreme Court of India defined sexual harassment at the workplace, pronounced preventive, prohibitory and redress measures, and gave directives towards a legislative mandate to the guidelines proposed.

Sexual Harassment includes many things:

  • Actual or attempted rape or sexual assault.
  • Unwanted deliberate touching, leaning over, cornering or pinching.
  • Unwanted sexual teasing, jokes, remarks or questions.
  • Whistling at someone.
  • Kissing sounds, howling and smacking lips.
  • Touching an employee's clothing, hair or body.
  • Touching or rubbing oneself sexually around another person.

Indian Constitution On Sexual Harassment:

Sexual harassment clearly violates the fundamental rights of a women to Equality under Article 14[2] and Article 15[3], her right to life under Article 21[4], and her right to practice any profession and carry on any occupation, trade or business[5], which includes a Right to safe environment free from sexual harassment.

IPC on Sexual Harassment:

In 2013, substantial changes were made in the way sexual harassment was viewed within the criminal justice system in India. The Criminal Law Amendment Act of 2013, which commenced on April 3, 2013, included Section 354A of the Indian Penal Code, 1860 that defined sexual harassment.

The India Penal Code, 1860 has also defined the term sexual harassment and related offences and put forth punishments for the same:

  • Section 354A - Sexual harassment is: unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks
  • Punishment: Up to three years in prison, and a fine.
  • Section 354B - Forcing a woman to undress.
  • Punishment: From three to seven years in prison, and a fine.
  • Section 354C - Watching or capturing images of a woman without her consent (voyeurism).
  • Punishment: First conviction - one to three years in prison and a fine. More than conviction - three to seven years in prison and a fine.
  • Section 354D - Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).

First conviction- up to three years in prison and a fine. More than one conviction-up to five years in prison and a fine.

Vishaka And Others V. State of Rajasthan:

In the case of Vishaka and Ors v. State of Rajasthan and Ors[6], the Hon'ble Supreme Court has laid down guidelines and norms to be observed to prevent sexual harassment of working women.

Preventive Steps:
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without chauvinism to the generality of this obligation they should take the following measures:
  1. Express prohibition of sexual harassment at the work place should be notified, published and circulated in appropriate way
  2. The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for adequate and appropriate penalties against the offender.
  3. As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (standing orders) Act, 1946.
  4. Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Criminal Proceedings:
Where such conduct amounts to an offence under the IPC or under any other law, the employer shall initiate appropriate action in accordance with law by making 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.

Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complain Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, and appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim.

Such complaint mechanism should ensure time bound treatment of complaints.

Internal Complaints Committee:
The complaint mechanism should be adequate to provide a complaints committee, a special counselor 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.

Worker's Initiative:
Employees should be allowed to raise issues of sexual harassment at a workers' meeting and in other suitable forum and it should be affirmatively discussed in employer-employee meetings.

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.

Third Party Harassment:
Where sexual harassment occurs 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.

The central/state governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.

These guidelines will not prejudice any rights available under the protection of human rights act, 1993.

The Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013:

The Sexual Harassment Act (Hereby called as an 'Act') was finally enacted in the year 2013 for the prevention of sexual harassment against women at workplace in the whole of India. The main objective of the act was protection of Women, prevention and redressal of sexual harassment complaints. Sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:
  1. Physical contact and advances; or
  2. A demand or request for sexual favors; or
  3. Making sexually colored remarks; or
  4. Showing pornography; or
  5. Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.[8]

Post Vishaka Developments

Pursuant to Vishaka Judgement, the Central Civil Services (Conduct) Rules 1964, were amended in 1998 to incorporate R. 3C which prohibits sexual harassment of working woman. The first case before the Supreme Court after Vishaka in this respect was the case of Apparel Export Promotion Council Vs. A.K Chopra, AIR 1999 SC 625.

In this case, the Supreme Court reiterated the law laid down in the Vishaka Judgment and upheld the dismissal of a Superior Officer of the Delhi based Apparel Export Promotion Council, who was found guilty of sexually harassing a subordinate female employee at the workplace. In this Judgment, the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.

Further the Apex Court in its Judgement in Medha Kotwal Lele & Ors. Vs. Union of India & Ors, 2013 (1) SCC 297 took cognizance and undertook monitoring of implementation of the Vishaka Guidelines across the country by directing State Governments to file affidavits emphasizing on the steps taken by them to implement the Vishaka Guidelines. Not being satisfied, it directed States to put in place sufficient mechanisms to ensure effective implementation of the Vishaka Guidelines.

Amendment in Indian Panel Code, Post Nirbhaya Case in 2013
  • Section 354A. Sexual harassment
  • Section 354B. Forcing a woman to undress
  • Section 354C. Watching or capturing images of a woman without her consent (voyeurism).
  • Section 354D. Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).

Conclusion: In this century it is very important to have gender sensitive workplace which would fulfil the needs of its employees specially the needs of the women. Many workplaces and not still gender sensitive, many people are still not aware about workplace harassment. Taking this scenario in mind it is essential to develop capacities and start a process of individual thinking. Rules norms and laws are always their but enactment and implementation is necessary and to understand this awareness is needed.

The Implementation of sexual harassment Act would ensure safe and healthy work environment for women. Legal enactment for both male and female is needed for proper development of our society. Women in our Indian society take legal reporting as the last resort as they do not want any extra challenge to make their life more vulnerable.

They fear answering the society and also facing the organization and answering them. Providing a safe working environment for everyone specially women is the duty of the employer. While companies should seriously think about their corporate responsibilities, as companies should provide safe harassment free environment to every women.

This would lead to companies benefit as everyone can work freely. With the march of civilisation, the impact of social chances and developmental efforts benefit the women much less than man. Social and religious reformers, enlightened public authorities, and women's organisations waged battles against the oppressive position of women through centuries. But still illiteracy, ignorance, superstition still persists in some parts of the country resulting in exploitation of the women labourers.

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