Harassment encompasses all types of offensive behavior which is intended to upset or show disgrace to another individual. Anyone, male or female, can be a victim of sexual harassment. Sexual harassment is not limited by gender. The victim or the harasser may be a woman or a man, and her or his victim does not have to be of the opposite sex — a man might harass another man, and a woman might harass another woman.
Additionally, harassers are not always direct supervisors. Behavior may still constitute sexual harassment even if the harasser is a co-worker, a supervisor in another area, or even a person not employed in the victim’s workplace. In fact, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the offensive conduct.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is an act “to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.”
The brutal gang rape of a social worker in Rajasthan in 1997 brought to the attention of the Supreme Court of India, the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places. This resulted in India finally enacting its law on prevention of sexual harassment against female employees at the workplace.
With reference to the Vishaka Guidelines the law hopes to redress as well as prevent cases of sexual harassment in all workplaces across India.
Here are the 10 key features of vishaka guidelines:
- The law applies to women harassed in the workplace including women working as domestic workers, daily wagers, temporary or permanent, full-time or part-time, as well as volunteers. The women may or may not be employed and can be of any age. The law is only applicable to women and women only.
- Sexual harassment includes any one or more of the following unwelcome acts or behavior:
- Physical contact or advances
- A demand or request for sexual favors
- Making sexually colored remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
If the following circumstances exist in relation to any behavior, that is, if any act is done under the following circumstances that would also count as sexual harassment:
- Implied or explicit promise of preferential treatment in employment
- Implied or explicit threat of detrimental treatment in employment
- Implied or explicit threat about her present or future employment status
- Interferes with work or creates an intimidating/hostile/offensive work environment
- Humiliating treatment likely to affect her health and safety.
- The act of harassment can occur in the workplace and also if a woman is harassed while visiting a place arising out of or during the course of employment including transportation provided by the office, a complaint can be filed under this Act.
- The Act requires all workplaces to set up Internal Complaints Committees to address the issue of sexual harassment. There will also be a Local Complaints Committee for each District where complaints can be filed.
- An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee).
- The Act provides the option of a settlement between the aggrieved woman and the responded through conciliation but only on the request of the woman. However, money compensation cannot be a basis for the settlement.
- The inquiry has to be completed within 90 days.
- In case of malicious complaints or false evidence, the Committee may take action against the woman/person. However, simply not being able to prove an allegation will not mean that it is a false/malicious complaint.
- The identity of the aggrieved woman, respondent, witnesses as well as other details of the complaint cannot be published or disclosed to the public/media
- The Act also hopes to prevent such incidents by placing a duty on employers to hold regular workshops/awareness programs as well as, display the consequences of harassment in the workplace. Every employer has a duty to provide a safe working environment to all employees.
When any of the above happens to an individual, it indicates that he/she is falling prey to employee harassment. Be it the employer or co-workers, there are legal terms via which the offenders can be punished.
Indian constitution guarantees gender, racial and religious equality as the ‘Fundamental Right’ of the residents of the country in Part III, Articles- 14, 15, 16 which implies for the workplace as well. Hence one faces discrimination by the employer because of his/her race, complexion, gender, caste or origin; he/she can immediately seek legal advice by consulting with a lawyer. The ‘Directive Principles of State Policies’ of Part IV encompasses the cultural and socio-economic rights of Indian citizens.
Also victims of sexual harassment at workplace will now get an opportunity to challenge the report of an in-house probe committee before its final verdict, in case it does not recommend suitable charges against the accused.
In cases where a complaint committee has not recommended any action against the employee against whom the allegation is made in a case involving charges of sexual harassment, the Disciplinary Authority shall supply a copy of the committee’s report to the complainant, as per new rules formed by the Personnel Ministry.
The Disciplinary Authority, which may be the officer-in- charge concerned, shall consider her representation, if any submitted, before coming to a final conclusion, it said. Such representation shall be deemed to be an appeal as per the relevant provision of Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the rules said.
The new rules are aimed at providing more security to women government employees at workplace and avoid any litigation in such cases. “With the new measure, a victim need not to go for appeal to tribunal or court challenging the final verdict instead she will get get an opportunity to file an appeal against the decision (which is not favorable to her) by the committee,” a senior Personnel Ministry official said.