Sexual harassment in the workplace is one of the biggest problems which has started to increase as the corporate culture has begun to flourish. Anyone can be a harasser, and anyone can be a victim. It is insignificant as to who commits the offense. It could be a manager, co-worker, or even a non-employee like a client, contractor, or vendor. If the person’s conduct creates a hostile work environment or interrupts an employee’s success, is considered sexually harassing. An act which may amount to sexual harassment may vary from a sexually colored involuntary encounter with a senior employee of colleague, winking, whistling inappropriate touch or similar behavior. An act of a senior employee asking for a non-consented sexual favor from the junior employee, in lieu of promotion in the job, falls in the category of sexual harassment at the workplace.
To govern such actions and create a healthy working environment for women, Supreme Court of India, in the landmark case of Vishaka v. State of Rajasthan to fill the legislative vacuum laid down Vishaka Guidelines for the protection of women from sexual harassment at workplace. Later an act was passed by the legislature named, Protection of Women from Sexual harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
As per the rules governing sexual harassment at workplace, it is compulsory for all organizations with 10 or more workers to constitute an Internal Complaints Committee (ICC) for registration of complaints relating to sexual harassment and take action against the guilty employer or employee. Constitution of ICC is a legal right, and in case the workplace is refusing to constitute the same, they can be legally penalized.
The constituted ICC can file a complaint against the incident of sexual harassment at your workplace. A complaint must constitute the following details.
- Name of the person by whom the complaint is filed.
- The date on which the incident of sexual harassment took place
- The time when the incident happened
- Description of the incident or inappropriate behavior
- Name of the person accused of sexual harassment
- Working relationship between the victim and accused.
The complaint with the details mentioned above must be filed within three months of sexual harassment incident, with full confidentiality and speedy process. This sexual harassment complaint can be filed by anyone irrespective of gender. Lodging of an internal complaint with the ICC does not cease the right of the victim to lodge a criminal complaint against the colleague or employer. Reply to the complaint must be filed by the accused within ten days. An inquiry has to be completed within 90 days. The final report generated thereof must be submitted to the Employer or District officer within ten days. The Employer or the District Office has to act on recommendations within 60 days. In addition to this, if the victim or accused is not satisfied with the recommendations of the ICC or LCC (Local Compliant Committee), a further appeal can be filed before a tribunal or a court.
In the case of Apparel Export Promotion Council vs A.K. Chopra placed before the SC of India, Accused mentioned that the penalty on him was harsh and disproportionate to the charge leveled against him. It was concluded by the research that the accused had not actually molested the victim, but had only tried to assault her and had not made any physical contact with her. On this, the Staff Committee observed that no lenient view would be justified in a case of molestation of a woman employee when the charge was fully proved. Any sympathetic action in such a situation would have a demoralizing effect on working women. One of the judges from the bench, in this case, remarked that they would not wait for a girl to be raped and then the charges of sexual harassment could be logged. Hence the charges levied on the accused are reasonable and not disproportionate.
Apart from the complaint mechanism, the employer can take another recourse such as Criminal proceedings and Disciplinary action.
Know More: Sexual Harassment at Workplace
Under Criminal proceedings, as per Vishakha Guidelines, when the conduct of accused amount to a specific offense under IPC or any other law, the employer shall initiate appropriate actions in accordance with the law. Attention must be paid to ensure that victim or witnesses are not victimized or discriminated against while dealing with the complaints of sexual harassment. Following are the specific provisions of Indian Penal Code, that can be applied in a sexual harassment case thereby making it a criminal complaint.
Section 294, talks about the obscene act in public place.
Section 354, embodies the provision when whosever assaults or uses criminal force on any women, intending to outrage her modesty.
Section 509 holds that whosoever intending to insult the modesty of women, utters any word, makes any sound or gesture or exhibits any object or intrudes upon the privacy of such women. The same shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
In addition to the aforementioned recourses, when such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action must be initiated by the employer in accordance with the rules.
A civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by sexual harassment.
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