Sexual Harassment is the “behavioural execution of a defective, discriminating, imposing mentality to cause discomfort, shame and insult.”
Sexual harassment of a woman in workplace is of serious concern to humanity on the whole. It cannot be construed to be in a narrow sense, as it may include sexual advances and other verbal or physical harassment of a sexual nature. The victims of sexual harassment face psychological and health effects like stress, depression, anxiety, shame, guilt and so on.
In this regard, to tackle the problem of sexual harassment, the Ministry of Women and Child Development (“Ministry”), by a Notification dated December 9, 2013 passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “Act”) which became effective from December 9, 2013. The Ministry also made the rules with regard to the same effective from the same date. These rules are called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (the “Rules”).
How did this Act come into existence?
The Act to prevent incidents of sexual harassment at workplace was enacted after 16 years of the Supreme Court judgment in the case of Vishaka & Ors. vs. State of Rajasthan & Ors. (1997 (7) SCC 323) which was filed by NGOs because of the brutal gang-rape of a social worker while she was at work. The Supreme Court, in this case had held that sexual harassment at work place is violative of constitutional rights of women (including rights of equality, to practice any profession and to right to life with dignity) and are discriminatory towards women. In the absence of legislative safeguards, the Court, stated that an “affective alternative mechanism” was needed to prevent violations of these fundamental rights in the workplace and to address the issues and to fill the legislative vacuum, Supreme Court in the same case also laid down certain guidelines which made it mandatory for every employer to provide for a mechanism to redress grievances relating to sexual harassment at work place (“Vishaka Guidelines”). The Court also stated that the Vishaka Guidelines were to be treated as a declaration of law and were to be applicable until relevant protective legislation was enacted by the Parliament.
In light of the above judgment, the very first efforts, towards implementing a law for protection of women from sexual harassment at workplace, were taken in 2007 when the Protection of Women against Sexual Harassment at Workplace Bill, 2007, was introduced in the Parliament. However, this Bill never saw the light of the day. On December 7, 2010, the Protection of Women against Sexual Harassment at Work Place Bill, 2010 (the “Original Bill”) was introduced in Lok Sabha and was referred to a Parliamentary Standing Committee on Human Resource Development, led by Shri Oscar Fernandes (“Standing Committee”), on December 30, 2010 for examination, and the Standing Committee came out with its report in December, 2011.
Further to the report, subsequent changes were made to the Original Bill, including to the title of the Bill, which was changed to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 (the “Bill”). The change of title clearly reflects the objective of the Ministry for passing this legislation i.e. to not just focus on redressal of complaints of sexual harassment but also focus on prevention and prohibition of sexual harassment.
As already stated above, since several bills related to prevention of sexual harassment, one after the other, were always pending in either of the Houses of the Parliament (the Lok Sabha or the Rajya Sabha), Medha Kotwal Lele, coordinator of Aalochana, a centre for documentation and research on women filed a petition in the Supreme Court highlighting a number of individual cases of sexual harassment and arguing that the Vishaka Guidelines were not being effectively implemented. The Supreme Court was specifically required to consider whether individual state governments had made the changes to procedure and policy required by the Vishaka Guidelines or not.
The Supreme Court then, in Medha Kotwal Lele vs. Union of India, AIR 2013 SC 93 stated that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It noted that the Vishaka Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. Further, the Court held that a number of states were falling short in this regard and reiterated that there is an obligation to prevent all forms of violence. It stated that “lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women”.
This case further stated that States governments must make the necessary amendments to the Central Civil Services (Conduct) Rules, 1964 and Standing Orders within two months of the date of judgment and entrusted a responsibility upon the Bar Council of India to ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka Guidelines. Similarly, the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes were required to ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the Vishaka Guidelines.
The Act and India’s International Obligations:
By passing the Act, the Government of India has fulfilled its obligations under the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”), adopted by the General Assembly of the United Nations, in 1979, which had been ratified by Indian Government on June 25, 1993 and which provides that protection against sexual harassment is universally recognized human right. CEDAW had, in January 1992, adopted the General Recommendation No. 19 which recognized the ill effects of sexual harassment at the workplace, and subsequently provided for measures, to be taken by respective states for elimination of such practices. Such practices have to be outlawed not only because they result in gender discrimination, but also since they create a hostile work environment, which undermines the dignity, self-esteem and confidence of the female employees, and tends to alienate them.
Sexual Harassment and the law in other Countries:
While the Vishaka Guidelines were laid down by the Supreme Court of India in 1997, in the United States of America (“USA”), one of the first cases to be decided by the US Supreme Court, was in the year 1986, i.e. Meritor vs. Vinison, 1986 (477) US. The Congress had enacted Section 703, Title VI of the Civil Rights Act, 1964, to address the issue of sexual harassment at the workplace. The courts in USA have been willing to intervene on a range of issues and complaints, including inadequate response or action by the employer, resulting in liability. Thus, it has been ruled in some decisions Ellison vs. Brady,  924 F. 872, Fuller vs. City of Oakland,  47 F. 1522 and Yamaguchi vs. Widnall,  109 F. 1475 that appropriate remedial and corrective action includes measures reasonably calculated to end current harassment and to deter future harassment from the same or other offenders.
In Ellison vs. Brady,  924 F. 872, the US Court explained the issue of Sexual harassment in the following manner:
“We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy. We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a `great figure’ or `nice legs.’ The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”. The characteristically male view depicts sexual harassment as comparatively harmless amusement.
We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.”
Further, while Australia has enacted the Sex Discrimination Act 1984, the United Kingdom has enacted the Sex Discrimination Act, 1975, and also framed the Sexual Discrimination and Employment Protection (Remedies) Regulations, 1993. All these measures are functional, and there is considerable body of case-law on various nuances of the issues.
What is sexual harassment under the Act?
The Act has defined what constitutes sexual harassment under Section 2 (n) and states that any of the following (directly or by implication) shall mean sexual harassment: (1) physical contact and advances; (2) a demand or request for sexual favours; (3) making sexually coloured remarks; (4) showing pornography; (5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Act, under Section 3, has further widened the definition of sexual harassment by providing that any of the following circumstances, related to sexual harassment, may also amount to Sexual Harassment: (1) implied or explicit promise of preferential treatment in the victim’s employment; (2) implied or explicit threat of detrimental treatment in the victim’s employment; (3) implied or explicit threat about the victim’s present or future employment status; (4) interferes with the victim’s work or creating an intimidating or offensive or hostile work environment for her and (4) humiliating treatment likely to affect the victim’s health or safety.
The definition is very wide, as it provides for direct or implied sexual conduct, which may mean that what is “implied” sexual behaviour for one person, may not be the same for another person. Hence, the implied behaviour will depend only upon the interpretation of a person. The definition also provides that harassment may be a verbal or non-verbal conduct. Hence, a mere statement in a case where the plaintiff requested defendant No. 1 to instruct the attendants to switch off the A. C. Machine, but in reply defendant No. 1 said “… come close to me, you will start feeling hot“, can also be construed to be sexual harassment (Albert Davit Limited vs. Anuradha Chowdhury and Ors., (2004) 2 CALLT 421 (HC)).
The absence of any actual physical contact or the attempt to molest the complainants need not detain one in reading the writing on the wall, as it were. The Petitioner was well past middle age and a teacher who certainly had great influence on the complainants. The lack of details of possible physical advances and any groping and other stealthy sexual advances on occasion, seemingly accidental or by design would hardly be expected to be narrated by the two women. It is, therefore, necessary to read between the lines and understand the difficulty with which the complainants have even ventured to submit the said complaint and only after they had resigned from their positions and were out of the reach of the Petitioner (Dr. S. Thippeswamy Vs. Mangalore University Mangalagangothry, 2011 (4) KCCRSN 403).
Who is an employer under the Act?
Under Section 2 (g) of the Act, employer has been defined to mean any person responsible for the management, supervision and control of the workplace and management includes the person or board or committee responsible for formulation and administration of polices for such organisation.
The employer is duty bound to initiate disciplinary action against the officer involved in sexual harassment, as it involves human dignity of women enshrined under Articles 14, 15 and 21 of the Constitution and the inquiry must be fair and reasonable.
What is a Workplace under the Act?
Workplace [section 2 (o)] has been defined as private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). Hence, if harassment takes place even during transportation or during a lunch meeting at a restaurant, the same will be covered under the Act.
As such, a logical meaning should be given to the expression “workplace” so that the purpose for which those guidelines have been framed, is not made unworkable. Workplace cannot be given a restricted meaning so as to restrict the application of the said guidelines within the short and narrow campus of the school compound. Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity.
How is the IC required to be constituted under the Act?
All workplaces that have 10 employees or more are required to constitute an Internal Committee (“IC”), as per the Act which provides that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the IC shall have to be constituted at all administrative units or offices.
The Act provides for a minimum of four members for the IC and states that half of IC members will necessarily have to be women and that among the four members, a presiding officer for IC will have to be appointed, and it will have to be a woman at a senior level in that office.
If a workplace has less than 10 employees, then it need not form an IC. All complaints in this case will go to the local complaints committee set up as per the Act by district officers of each district. Also, in a case where a complaint has to be filed against the employer himself, the local complaints committee has to be approached.
How will complaints be filed and heard?
Any aggrieved woman can file a complaint of sexual harassment to IC within 3 months of the incident. The period within which one can file the complaint can also be extended to another period of three months. Also, where the aggrieved woman is unable to make a complaint due to her physical incapacity, her legal heir, relative or friend, co-worker, an officer of the National Commission for Women or State Women’s Commissionmay make a complaint to the IC on her behalf, with her permission. Also, if the woman is suffering from mental incapacity, a qualified psychiatrist or psychologist or the guardian or authority under whose care she is receiving treatment or care, can file a complaint before the IC.
IC, before it initiates inquiry, may try to concile between the parties, if the aggrieved woman requests but monetary settlement cannot be the basis of conciliation. If conciliation is not possible, IC will inquire into the complaint and give both parties a chance to be heard and complete the inquiry in 90 days. During the inquiry process of being heard, neither party will be allowed to bring their lawyer.
Post inquiry, IC will have to prepare an inquiry report giving recommendations on the matter, in 10 days, and give a copy of the same to the organization / company and the concerned parties. The organization / company will have to act on the recommendations in 60 days. The Act also provides that if a victim is dissatisfied with the findings of IC, she can appeal to a Court / tribunal. IC has been assigned with the responsibility to submit an annual report on the no. of cases that arose and got settled during the year to the company and the company further has been mandated to include this information in its annual report and in cases of companies which do not prepare annual report, the companies are required to intimate such number of cases to the District Officer.
What relief can be given to the victim?
The IC, as per Section 12 of the Act can recommend to the employer to provide certain relief to the victim, such as transfer the aggrieved woman or the respondent to any other workplace or grant leave to the aggrieved woman up to a period of three months (in addition to the leave she would be otherwise entitled), during pendency of inquiry, but only if the victim makes a written request.
Rule 8 of the Rules, provides for further relief to complainants during pendency of inquiry, such as restraining the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer.
Compensation– While determining compensation, IC may take note of: (1) mental trauma, pain, suffering and emotional distress caused to the victim; (2) loss in career opportunity; (3) medical expenses incurred by the victim for physical or psychiatric treatment; (4) income and financial status of the Respondent; and (5) feasibility of such payment in lump sum or in instalments (Section 15).
What are the duties of an employer?
The law has provided for several duties of the employer. Such duties begin at the time when an employer has to set up an internal complaints committee to ensure that aggrieved can file their complaints and seek redressal to such complaints and end at the time when the employer has provided certain data, in accordance with the provisions of the law, in relation to sexual harassment in its annual report. There are several other duties of an employer under the law, some of which are provided below:
(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 harassments: and the order constituting, the Internal Committee.
(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 Internal Committee. With respect to workshops and awareness programs, it says that employer shall:
- Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women
- Carry out orientation programmes and seminars for the Members of the Internal Committee
- Carry out employees awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as may be considered necessary
- Conduct capacity building and skill building programmes for the Members of the Internal Committee
- Declare the names and contact details of all the Members of the Internal Committee
- Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act
(d) Provide necessary facilities to the Internal Committee for dealing with the complaint and conducting an inquiry.
(e) Assist in securing the attendance of respondent and witnesses before the Internal Committee.
(f) Make available such information to the Internal Committee as it may require having regard to the complaint.
(g) Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code.
(h) Cause to initiate action, under the Indian Penal Code 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 service rules and initiate action for such misconduct.
(j) Monitor the timely submission of reports by the Internal Committee.
The 9th US Court of Appeals, in Yamaguchi vs. Widnall  109 F. 1475, had said that an employer is liable for a co-worker’s sexual harassment only if, after the employer learns of the alleged conduct, he fails to take adequate remedial measures. These measures must include immediate and corrective action reasonably calculated to end the current harassment and to deter future harassment from the same offender or others.
In Ellison vs. Bardy,  924 F. 872, the US Court of Appeals had held that to avoid liability an employer must take at least some sort of disciplinary action against a harassing co-worker in order to prevent future workplace sexual harassment and employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment. It also held that employers have a duty to express strong disapproval of sexual harassment, and to develop appropriate sanction.
What is the nature of offences under the Act?
Offences under the Act are non-cognizable which means one cannot be arrested without a warrant.
What are the penalties under the Act?
If the employer does not comply with the law, they can be penalized with a fine which may extend to Rs. 50,000. On repeated non-compliance, the employer may be penalized with twice the punishment. Non-compliance can also lead to cancellation of licence, withdrawal or non-renewal of registration for carrying on business, by the Government.