SEXUAL HARASSMENT AT WORKPLACE

INTRODUCTION

Infringements of women’s right to equality, life, and freedom are regarded as sexual harassment at work. It produces an unstable and unpleasant workplace that discourages female employment by severely impacting its social, economic, and inclusive growth goals. With this in mind, the government developed the Law on the prevention, prohibition, and redressal of sexual harassment of women at work in 2013.

Firstly, the Supreme Court in Vishaka v State of Rajasthan[1] highlighted the necessity for such laws. If at the time, no law on control of sexual harassment in the workplace for women was implemented, it would be possible for the Supreme Court to guide all workplaces or institutions, in exercising the authority provided under Article 32[2] of the constitution, until the act is passed following Article 14, 15, 19(1) (g) and 21 of the Constitution[3]. The Convention on Elimination of All Forms of Discrimination against Women (CEDAW)[4] which had been ratified by the Government of India in 1993, the Supreme Court incorporated fundamental principles of human rights enshrined in the Constitution of India. The Supreme Court instructions have to be dealt with in accordance with the law under Article 141 of the Constitution.[5]

HISTORICAL ANTECEDENTS OF SEXUAL HARASSMENT AT WORKPLACE LAW IN INDIA

An NGO, named Vishaka (and others social activists) submitted a lawsuit before the Supreme Court of India following the violation of a social worker in Rajasthan during her work by trying to prevent the marriage of children. In its decision in 1997, the Supreme Court noted that a “legislative vacuum” existed in order to prevent women from being harassed at work.

The Supreme Court said that every incidence of employment sexual harassment is a violation of the victim’s gender equality basic rights, and ‘right to life and liberty,’ and the rights referred to in Article 14, 15, and 21. The fundamental rights enshrined in the Indian Constitution on equality and dignity of life are of course those. The Court found that these occurrences were also obviously a breach of the basic right of the victim to conduct any vocation, trade, or business under Article 19(1)(g).

Recalling various other constitutional provisions affecting women and the international conventions and treaties signed by India, the Supreme Court took the responsibility to cure the “legislative vacuum” mentioned above by issuing “guidelines” for Indian employers – until the parliament adopted a proper law whenever that might be. This became law not only by the Indian body of law but by the Supreme Court Judges![6]

The rules defined sexual harassment, described the employer’s obligations in the prevention of sexual harassment, specified the precautions, established a complaint system, and developed, inter alia, the first template for a Committee of Internal complaints.

 The Parliament, in taking back its legislative powers through Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013 (“the Act”),[7] would further define and further expand all of this. This meant that the judicial law laid down in the Vishaka case by the Supreme Court was good law for nearly 16 years!

THE SEXUAL HARASSMENT PREVENTION ACT 2013 – WHAT YOU NEED TO KNOW

As women, it is extremely important for us to know some key information about this law so that we feel secure in our working environments. Here’s a list (non-exhaustive) of what this Act provides for, for our quick reference)

The phrase “sexual harassment” covers both physical and verbal harassment. Unwelcome actions or behaviors such as physical contact and approaches, a sexual favors claim or request, sexually colored remarks, pornography or, any other physical, oral or nonverbal unwelcome behavior of a sexual character, are specified by the law. This list is not complete, and it is assessed on a case-by-case basis if everything that has transpired comes under the phrase “sexual harassment.” Some illustration of what sexual harassment may seem like, if you ask for dates frequently, sexist remarks, commenting on your body or appearance, offering employment benefits in return for sexual favors, threatening to impede your progress in the office if you disagree with their conditions, etc.

•  Under the Legislation “workplace” is not only your office’s physical limits. All this is under the concept of a “workplace” if you are in a work-related position, including in travel supplied by the employer. This would also include working meetings held at restaurants or cafés, a social workplace function and, an airplane with your colleague on the route to a job. You may work digitally from home in COVID times. Cases of sexual harassment perpetrated when your stay at home via zoom or other online media can be handled under the jurisdiction of the Act.[8]
• In the conventional sense of the phrase to be safeguarded by the Act you do not have to be an “employee.” The Act applies even whether you are a contractor, consultant, temp, part-time employee, intern, volunteer, etc. If you have one, this Act also applies to your family’s help, in which case the “employer” is you.[9]
• When you have 10 or more employees in your office, your employer is required to set up an “Internal Complaints Committee” which has broad authority to hear and remedy instances of sexual harassment, under this Law. Please contact a lawyer or attorney or speak to your HR if you work in an office that has over 10 employees and has not learned anything about the prevention of intimacy.[10]
• The victim is allowed to ask for a “conciliation” (but no monetary payments will be allowed), if found guilty, a written apology might be sought, other disciplinary action could be taken such as warning, reprimands, withholding of promotion, withholding pay, cancellation of the complaints. Some things that can happen after a complaint has been made by the Internal Complaints Committee are the following; The Committee’s powers are broad in this regard.[11]

CONCLUSION

There is a significant degree of sexual harassment at the workplace in India, and women employees require a pleasant environment.[12] Government should create separate legislation on this matter. It is also necessary to be aware that women workers are also part of the workforce in India and it is the government’s obligation to guarantee safety at work. New approaches to safeguard the organization against this evil should be developed by employers and managers. Government and employers should guarantee that women are treated equally and that there is no discrimination of gender at work.

Author(s) Name: Bolla Moksha Samhitha (Student, Damodaram Sanjivayya National Law University, Visakhapatnam)

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References:

[1]Vishaka v. State of Rajasthan, [1997] 6 SCC 241.

[2] Const. India art. 32.

[3] Const. India art. 14, 15, 19(1)(g), 21.

[4] The Convention on Elimination of All Forms of Discrimination against Women (CEDAW), 1979.

[5] Const. India art. 141.

[6] David J. Marshall & Justine F. Andronici, Sexual Harassment Law: A Brief Introduction for New Practitioners, http://www.kmblegal.com/, (last visited July 10, 2021).

[7] The Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013.

[8] The Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013 s. 2(o).

[9] The Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013 s. 2(f), 2(g).

[10] The Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013 s. 11(3).

[11] The Sexual Harassment for Women at Work (Prevention, Prohibition and Redressal) Act, 2013 s. 10.

[12] Sheba Tejani, Sexual Harassment at the Workplace: Emerging Problems and Debates, http://www.jstor.org/stable/4415633, (last visited July 10, 2021).