SEXUAL HARASSMENT AT WORKPLACE: LEGAL FRAMEWORK AND ENFORCEMENT

Published on 15th January 2025

Authored By: Khushi Dhakad
RENAISSANCE LAW COLLEGE, INDORE, INDIA

INTRODUCTION

Sexual harassment is a crucial problem which is prevalent not from the recent years but since decades. Sexual harassment at workplace has far reaching consequences for both individual and workplace. It undermines the productivity, Morale and the overall wellbeing of the workforce. It includes inappropriate or undesired sexual behaviour that fosters to the hostile work environment and frequently results in psychological harm, emotional distress and obstacle to professional advancement. This article will dive into the concept of sexual harassment, its legal frameworks and the mechanism of the enforcement of the laws related to sexual harassment.

WHAT DOES SEXUAL HARASSMENT MEAN?

Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards inn exchange of sexual favours. It can be both physical and verbal. Sexual harassment has been very common in the recent time. It does not limit to only women’s, but men’s are also often sexually harassed at the workplaces.[1] Sexual harassment at workplaces often includes:

  • Asking sexual favours in return promising for promotions, raises and favouring in job assignments with less working hours etc.
  • Verbal harassment which includes making sexually offensive remarks, comments about persons appearance and offensive jokes.
  • Creating a hostile working environment that interferes with an individual’s ability to perform their job when they deny for their favours.[2]
  • Retaliation (which includes demotion, firing or other kind of mistreatment) arises when an employer takes adverse action against an employee for reporting sexual harassment.

LEGAL FRAMEWORKS AGAINST SEXUAL HARASSMENT AT WORKPLACES

VISHAKHA GUIDELINES

  • In the case of Vishakha and other v. State of Rajasthan (1997), the supreme court laid down Vishakha guidelines which are to be followed by establishments in dealing with complaints about sexual harassment.

The guidelines passed in this case are as follows:

  • It is the duty of every employer to deliver sense of security to every woman employee.
  • Government should make stick laws and regulation to prohibit sexual harassment.
  • Any act of such nature should result in disciplinary action and criminal proceedings should also be brought against the wrongdoer.
  • The organisation should have a well set up complaint mechanism for the redressal of the complaints made by the victim and should be subjected to reasonable time.
  • This complaint mechanism should be in the form of complaint committee which needs to be headed by a woman member and at least 50% of the committee members should be women so that victims do not feel ashamed by communicating their problems.
  • This complaint committee should also have a third-party involvement in the form of an NGO or other body which is familiar with the issue.
  • There is a need for transparency in the functioning of this committee and for that the requirement for the submission of an annual report to the government.
  • Issues related to sexual harassment should not be a taboo in the workers meeting and should be discussed positively.
  • It is the duty of the organisation to aware the female employees about their rights by regularly informing them about the new guidelines issued and legislation passed.
  • The employer or the person in charge is duty biased to take the necessary and reasonable steps to provide support to the victim of sexual harassment take place due to the act or omission of the third party.
  • These guidelines are not only limited to government employers and should also be followed by employees in the private sector.[3]

POSH ACT (2013)

Enacted by the ministry of women and child development, India in 2013 bypassed the Vishakha guidelines of 1977.The posh act provides protection actions against sexual harassment for every woman who has visited a workplace. Posh act lays the following guidelines:

  • ICC-Every employer of the workplace shall, by an order in writing, constitute a committee to be known as “Internal Complaints Committee.”[4]
  • LC-Every district officer in the district concerned constitute a committee to be known as the “Local Committee” to receive complaints of sexual harassment from establishment where internal committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself.[5]
  • Complaint mechanism-A aggrieved woman can make a complaint of sexual harassment at workplace in writing to the internal committee and to a local committee in case IC is not constituted within the period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident.[6]
  • Compensation: If ICC and LCC is satisfied with the complaint, it directs the employer to deduct the appropriate salary of the respondent considering several factors such as mental trauma, medical facility, and financial stress.[7]
  • SHE Box: If the woman does not make a complaint to ICC or LCC or FIR at the police station, she can directly register the complaint online at the SHe box where a complaint is directed to the head of ICC or LCC As per the jurisdiction.[8]

Criminal laws also provide remedies for sexual harassment such as BNS (Bhartiya nyaya Sanhita):

Section 75 of BNS States that any person committing the offence of sexual harassment including, Physical contact and advances involving unwelcome and explicit sexual overtures or demanding or requesting for sexual favours or showing pornography against the will of a woman shall be punished with rigorous imprisonment for a term which may extend to the three years or with fine, or with both. And making sexually coloured remarks, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.[9]

CHALLENGES IN ENFORCEMENT

Despite of several laws available against sexual harassment, several challenges hinder effective implementation of these laws:

Limited awareness: Lack of awareness among employees about committees and whom to approach in case of facing sexual harassment has been the major hurdle in the enforcement of the laws.

Fear of retaliation: Fear of retaliation has been another issue in the implementation of these laws as employees often hesitate to report incidents of sexual harassment due to the fear of retaliation from the perpetrator or the organisation.

Cultural barriers: Talking about sexual harassment is still a taboo in many societies which creates a barrier to reporting sexual harassment and women are expected to tolerate such behaviour.

Law being nascent and unclear: There is no clear road map on how to conduct inquiries. Most committees are unaware of the legal requirement for cross examination and its importance.

CONCLUSION AND SUGGESTION

Sexual harassment has been become a major issue in today’s world which need to be addressed on a prompt basis. Cases of sexual harassment are increasing day by day and bringing reforms in the laws and making them stringent is the need of an hour. Though the law has achieved limited success in highlighting the issue of sexual harassment, it has failed to reach out in the unorganised sector who continue to suffer worse conditions of work and harassment without recourse to law. Therefore, there should be more awareness about laws against sexual harassment among employees and at the workplaces so that employees can take best out of them. The laws should be gender neutral and not merely women-centric which will help in the overall development of the society. Laws should become anonymous so that the employees do not have to face the fear of retaliation and can complain without any fear. However, the process of implementation is not the only hindrance, but delayed justice is also the major issue, not getting timely justice is also the problem due to which many people do not want to get in that process, there should be promptness in the justice which will make these laws more efficient.

Taking the essential steps employers should prioritise compliance with the posh act, not just to pay lip-service but to fulfil the intent of law-which is to keep the workplace safe and secure. This will go a long way to building confidence in the complaints redressal process and in mitigating any reputational risks that may arise for employers due to ineffective implementation of the law[10].

 

 References

[1] Vishwadeep, ‘What Is Workplace Harassment and Sexual Harassment in India?’ (eLearnPOSH, 3 June 2024) < https://elearnposh.com/blog-workplace-harassment-and-sexual-harassment/ >

[2] Drishti Judiciary, ‘Laws Governing Sexual Harassment at Workplace’ (Drishti Judiciary) < https://www.drishtijudiciary.com/editorial/laws-governing-sexual-harassment-at-workplace >

[3]Drishti Judiciary, ‘Laws Governing Sexual Harassment at Workplace’ (Drishti Judiciary) < https://www.drishtijudiciary.com/editorial/laws-governing-sexual-harassment-at-workplace >

[4] ‘Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013, s 4”

<http://www.indiacode.nic.in/handle/123456789/2104>

[5] “Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013, s 6”

<http://www.indiacode.nic.in/handle/123456789/2104>

[6] “Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013, s 9”

<http://www.indiacode.nic.in/handle/123456789/2104>

[7] “Sexual harassment of women at workplace (prevention, prohibition and redressal) act 2013, s 15”

<http://www.indiacode.nic.in/handle/123456789/2104>

[8]‘Box Online Complaint Management System’ (She) <http://shebox.wcd.gov.in>

[9]BNS section 75 – sexual harassment. A Lawyers Reference. Available at:               <http://devgan.in/bns/section/75/>

[10]India’s Workplace Sexual Harassment Law: A decade on International Bar Association. Available at:<http://www.ibanet.org/india-decade-of-posh-act>

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top