•Sexual harassment at
workplace
•Sharada avadhanam•DDFS, APPA
• Sexual harassment and intimidation at work
• Various International Women’s Human Rights•Why the cases of sexual harassment go unreported in India? •not aware that this behavior = sexual harassment.
•due to “fear of discrimination at workplace by their colleagues or superiors”.
– workplaces in India are male dominated . •lack of confidence in complaint mechanism •the attitudes of society - women are blamed
– management tries - ‘ might is right’ policy •The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, •international bill of rights for women.
– defines what constitutes discrimination against women and national action to end such discrimination.•defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." •States commit themselves to
–end discrimination against women –principle of equality of men and women in their legal system,
–abolish all discriminatory laws and
–adopt laws prohibiting discrimination against women;
–to establish tribunals to ensure the effective protection of women
–to ensure elimination of discrimination against women by orgs, persons, company•Indian enactments and judgements •1997 SC judgement in visakha vs state of rajasthan giving detailed guidelines–It is a landmark case
– need for laws for sexual harassment
– guidelines of sexual harassment of working woman.
•2012 - Act on sexual harassment at workplace passed in sept 2012 by lok sabha incorporating the above guidelines of SC. •Gender violence throughout the Life Cycle•CRIME AGAINST WOMEN• • sections relating to sexual harassment•Special and Local Laws •Back ground to SC guidelines •A most controversial and brutal gang rape at workplace involved a Rajasthan state govt employee who tried to prevent a child marriage•Rajasthan high court let the culprits free•NGO visakha filed PIL in SC•In 1997 SC passed the landmark judgement•A bill on same line was passed in 2012 •LEGAL DEFINITION •Sexual harassment includes such unwelcome sexually determined behaviour as
•Physical contact•Demand for sex•Sexually coloured remarks•Showing porno•Other physical, verbal, non verbal conduct of sexual nature – leering, dirty jokes, sexual remarks•FORMS OF SEXUAL HARASSMENT• 1. Quid Pro Quo :
–In these cases, a supervisor or mentor makes unwelcome advances of a sexual nature and either states or implies that the woman must submit, if she wants to keep her job, receive a raise and receive a promotion or a specific job assignment.
•2. Hostile Environment : Unwelcome sexual conduct can make the working environment ‘hostile’ to women in general.
–An environment is considered ‘hostile’ when unwelcome sexual conduct has the effect of poisoning the work environment. The central enquiry is whether the conduct ‘unreasonably interferes with an individual’s work performance’ or ‘creates an intimidating, hostile or offensive working environment.’ •3. Sexual Favouritism :
–This kind of harassment occurs when employees who provide sexual favours to their employer receive benefits in the form of raises, promotions etc., which one is denied because one refused those sexual advances.
•4. Harassment by Non-Employees•5. Same Sex Harassment
•6. Constructive Discharge
•7. “Not wanted in the inbox! Evaluations of unsolicited and harassing emails” –- a new form of sexual harassment via electronic means
• • • •Harassment Notifications • •The Protection of Women Against Sexual Harassment at Work Place Bill, 2010
•Circular for central govt employees on Vishaka case, 1998 •Supreme Court Guidelines on Vishaka case, 1997 •THE SCALE OF SEXUAL HARASSMENT•In India, every 53 minutes, a woman is reported to be sexually harassed and every 26 minutes a woman is sexually molested.36 Several studies indicate that the magnitude of unreported cases is several times over the estimate.37•Most studies focus on sexual harassment in general. •A recent survey in India has found that 68% women have suffered mental harassment and 26% have been physically molested at their workplace.• One study to be noted in this regard is Lawyers Collective Women’s Rights Initiative’s in 2008- “Law relating to sexual harassment at the workplace”39. It highlights the fact that sexual harassment of women is rampant in India and most of it is unreported. •INDIVIDUAL FACTORS• •The Victim:•A study by Kohlman (2004)40 reported that ‘women are not reporting sexual harassment based upon any one overriding factor integrally related to their gender’. A survey conducted by the Department for Trade and Industry (DTI) in 2005 in Britain41 showed that women and disabled people or people suffering from long-term illness were more likely to suffer sexual harassment at workplace than men which goes on to prove that profiles of victims do matter.•the SC has also done well •to rule that sexual harassment is violative of two fundamental rights guaranteed by the constitution- •the right to gender equality and
•the right to life and liberty.
•The Perpetrator:•It cannot be said with certainty how far the perpetrator’s mindset is relevant in the dominance of sexual harassment at workplace but individuals who are competitive, hard driving, or have low self monitorring for example, are more likely to exhibit negative behaviours as per a study.42•Another study by Done substantiates this point that men who have low levels of self-control are more likely to sexually harass than men with high levels of self-control.43•Also typically, the perpetrator of sexual harassment will be in a position of power and the victim will be comparatively powerless is a point which Wilson and Thompson bring out in their study.44• •The review of literature •also focussed on various studies and reports made by women organisations45•and international forums like UN and its organs, International Labour Organisation, World Bank etc. which are working towards this cause.46•The Status of Workplace Sexual Harassment in IT/ ITES Industry, 2010 by Centre for Transforming India, is one of the only surveys done in this field in India.47•The study showed that 88 per cent of 600 women employees, age 19 to 45, reported sexual harassment across IT and ITES sectors across NCR, Bangalore, Pune, Mumbai, Chennai and Hyderabad. •But one thing is for sure that sexual harassment at workplace is much more prevalent than we think.
• • •The salient features of the Prohibition of Sexual Harassment of Women at Workplace Bill, 2010 •? The Bill proposes a definition of sexual harassment as laid down in Vishaka and additionally recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts. ? The section 2 clause 1 of the bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.
? The Bill provides for an effective complaints and redressal mechanism. ? The Bill provides for an effective complaints and redressal mechanism.14 ? Failure of the employers to comply with the provisions of the proposed Bill will attract a punishment of a fine which may extend to Rs. 50,000 under S. 27(1). ? Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief form of transfer either of her own or the respondent or seek leave from work • •“It shall be the duty of the employer •or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.” • • • • •It is an obligatory requirement for employers: •Appropriate notification/advertisement to be issued for prohibition of sexual harassment at workplace for the employees of the company.
•State government, central government and PSU bodies to include in their conduct and discipline rules/regulations prohibiting sexual harassment plus mention of penalties for those found guilty of sexual harassment.•For private employers, prohibition of sexual harassment and penalties to be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
•Employers need to provide conducive & appropriate work conditions for women staff
•in the view of : work, health, hygiene & leisure. In short there mustn’t be any conditions creating hostile environment towards working women staff and any conditions which could put women at an disadvantage position with regards to her career compared to other male employees of the company.
•The employer will need to have a written complaint mechanism which will need to include time frame of resolution of sexual harassment claims.
•Employer should help the victim phychologically with counselling etc.
•Employer should maintain confidentiallity of the complaint and the identity of the woman who raised the complaint and complaint specifics.
•Employers are bound to inform the details of sexual harassment complaints to appropriate government bodies/labour department etc, every year. In short it’ll be illegal to hide any sexual harassment complaints raised in the company or with the employer and not report to government authorities.
•Employer should allow and encourage the employees to raise sexual harassment issues• in worker’s meetings and at appropriate forums. And all those complaints need to be affirmatively discussed. In other words the employer must provide easy way to discuss sexual harassment issues and should not show any lack of interest.
•Employer should take steps to make working women aware of their rights to equality in everything in workplace by prominently notifying the guidelines by appropriate means ( like sending emailers, sending letters, displaying rules on notice boards)
•If the sexual harassment is due to third party
•that is not anything related to the employer but by another person from different organization which you interacted with him as part of discharging your official duties whether in office space or outside, then the employer will need to take all necessary steps to assist and help the victim in the terms of support & preventive action
• •In law, every employer is required to constitute an Internal Complaints Committee.•Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
•Employers duty after receiving a sexual harassment complaint •The employer must assess the crime and if required legally, it must register complaint with appropriate government authorities. For major sexual harassment cases, it beehoves on the employer to immediately bring the issue to notice of local Police and also nearby women cells. The employers should not delay filing a police complaint just try to save it’s company’s image.
•The employer will need to ensure that the victim is not further traumatized or victimized. Employer must not persecute the victim in any way due to a woman’s complaint. •Setting up of Complaint Committee by the employers Committee should be headed by a woman • •More than 50% of committee members should be women
•The committee should also consist of third party members not affialiated to the company or employer in anyway. Preferably from NGO’s, women right activists who are familiar to the issue of sexual harassment. If you’re a victim then you should be quite vigilant to this member as every company/employer tries to include their "friends" in such committes which will not object to the decisions made by the committee members on their payrols and loyal to the company, prejudicing the sexually harassed woman. If it is the case, then please contact us immediately.
• •The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee under S. 9(3).
• •Section 16 of the bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment. But the bill suffers from a few drawbacks which can obstruct its effective functioning:
•The provision which penalizes the complainant if the committee concludes that the allegation made is false or malicious creates the opportunity for employers to manipulate the committee and may also dissuade women from making complaints due to the fear that they will be penalized.•There is also some doubt whether the Bill is applicable to minors in the workplace as the term ‘aggrieved woman’ is not defined such that it can be said with certainty whether this is applicable to child workers. Even domestic workers have been excluded from its purview.
•Although unorganized sector finds mention, the Bill seems to be still largely couched in terms of the organized sector establishments. •The provision that deals with the confidentiality of the identity of the woman may actually work against her. This is because no provision has been included to inform the woman about the progress of the enquiry. It must be ensured that a copy of the of the complaint enquiry report and the recommendations of the committee are made available to the victim upon her request on completion of proceedings.
•
•
•Is it really sexual harassment?
•First clearly identify if yours is a clear case of sexual harassment. Not every harassment to working women may be termed as sexual harassment.
•A woman should ask herself some of the basic questions to identify the harassment such as:
–Is this behavior appropriate?
–Do I consent to this behavior?
–Is the behavior or comment violating my dignity as an individual or woman?
–Is the behavior creating an unsafe environment for me?
•
•16 Important things you need to do if you suffer from sexual harassment
•Is it really sexual harassment?
•Don’t quit your job
•Make notes
•Don’t disclose it to your office personnel
•Your employer can’t fire you
•Keep working
•Complain with government authorities
•Keep you family informed
•Write plenty of letters
•Take advice from someone who has already gone through sexual harassment
•Narrate you horror story at sexual harassment forum
•Avoid using office internet facilities
•Always use Gmail in office
•Use a good recording device
•Take anonymous legal advice
•Throw away emotions and fight back using the law, society and family
•
•The experience of harassment can be overwhelming for the victim.
•People often react with shock, humiliation, and intense anger. Therefore, the victim of harassment may not always feel comfortable going through the normal channels for resolving such a problem.
•It is the brave few who gather the guts to come up and talk about this problem openly in front of rest of the world.
•But as seen from the research findings more often than not their courage is slammed and suppressed.
•There are women organisations working in this area but their contribution can be just to bring out women in the open and encourage them to narrate their experiences but the judicial lacuna remains still.
•We do not have a substantive law to deal with the problem and this will continue to affect the problem at hand.
•Clearly, the “law” has failed to redress the problem.
•A general review of literature showed that most women in India, especially when we look at the rural and semi-urban class or the lower uneducated strata, are not even aware of their rights available against this menace of sexual harassment in the workplace.
•Findings also suggest that attitudes to sexual harassment in the workplace mirror society’s norms about sexuality and masculinity more generally- that it is normal and harmless behaviour, that it is women who provoke this behaviour and that it is an occupational hazard for women in the workplace. It often gets dismissed for being harmless or is simply ignored.
•The only way to solve this is to bring about a huge attitudinal change in the women in the country.
•When they have broken the shackles enough so as to be accepting work challenges they should garner courage to speak against these wrongdoings too.
To conclude, I see a variety of reasons responsible for the current endorsement of a culture of silence and denial which in effect renders the legal machinery ineffective.
•Most
women are not aware
•of the Supreme Court guidelines and complaints mechanisms/formal institutions of redress.
•The societal attitude that would blame them for provoking an incident or the loss of their reputation as a result of complaining is another thing which sounds a plausible reason which women might be afraid of.
• This is a harsh reality
•but most women who undergo the trauma of sexual harassment at workplace are in powerless positions and might fear job-related discrimination, including dismissal, and withholding of promotions and income. Also the fact that perpetrators are individuals who are in positions of authority further dampens their will to initiate action against them, which is bound to fail.
•The Supreme Court guidelines in Vishaka might have opened up the discourse on sexual harassment at the workplace, but it is clear that much remains to be done to address gender stereotyping and harassment in the working environment and to ensure that women have recourse to effective resolution of complaints.
•There needs to be awareness of the inappropriateness of sexual harassment
•and the rights of women workers is created and worked into the conduct rules for employees at all levels, irrespective of their positions.
•The prohibition of SHW bill needs to be pushed further with the rectifications of the flaws pointed in the previous chapter.
•I believe that the need of the hour is a broader canvassing of the issue,
•for people to be aware of the Guidelines and the Bill, and for employers to draft policies and create systems to check sexual harassment at work.
• There seems to be a consensus among the drafters on the following points:
•greater need of decentralization of punitive power;
•more and easily accessible complaints committees; arming the committee with more teeth;
•instituting a time- bound and clearly defined punitive process; and rendering the employer liable for inaction.18
•Non Governmental Organisations and women organisation are doing their share, but
•in order to make sure that the message reaches a larger audience we need to have every organisation taking up these cudgels.
•Confidence building is another area which needs to be worked upon
• so that coming out of the cocoon and filing a complaint is an easier process for the women.
•All in all, what may be concluded is that Law and sociology have a rather complex relation and legal developments precede sociological and attitudinal changes. Hence a fair mix of both sociological changes and legal advancement is required to solve the problem of sexual harassment at workplace.
•
•Torrent Pharmaceuticals sacks executive for sexual harassment May 11, 2012
•Ajmer railway clerk attempts suicide over workplace sexual harassment Apr 2, 2010
•Maharastra govt official dismissed over sexual harassment Feb 2, 2012
•Sexual harassment law may soon cover domestic workers Jan 12, 2012
•Sexually harassed by senior 9 yrs ago, woman SI gets Rs50K compensation Dec, 2011
•
•the allegations of sexual harassment against the US-based head of sales at Infosys, Phaneesh Murthy, and Canada-based CEO of Penguin International, David Davidar,
•both of whom were forced to resign
•In both cases, the men in question were working abroad and in both cases, the women were white, leading to speculation that action might not have been as quick and as severe had the victim been Indian and the setting an Indian office. Both cases were settled out of court.
•Closer home, in 2005-06, an Indian Air Force pilot Anjali Gupta was court martialled and dismissed from service
•for misconduct after she accused three superiors of sexually harassing her. The sexual harassment charges were referred to a court of enquiry which said she failed to prove her case. A year later, three trainees were suspended when they levelled similar charges against an instructor.9
But Shehnaz Mudbhatkal case
• is one of the oldest cases in which sexual harassment at the workplace, as an issue, captured the collective consciousness of working women back in 90’s. This brave woman worked as an air hostess for Saudi Arabian airlines. Her services with Saudi Arabian airlines were terminated because she refused to surrender to the sexual demands made by her superior. She did not give in rather filed a suit which she fought for 11 years. In 1997, she was awarded full wages and continuity of services with effect from 1985.10
•In another case of 1994, Doordarshan (Hyderabad) producer Sailaja Suman
•took director P L Chawla to court on charges of defamation, criminal intimidation and trying to outrage her modesty. She filed two separate cases in the metropolitan magistrate’s court. She met with zero support from her colleagues. And rather unfortunately, Suman was transferred to Lucknow.11
•Yet another case where grave injustice was done, where Nutan Sharma, a steno in the Union Ministry of Railways, was transferred, following her complaint that R P Sharma, secretary to the Chief Operating Manager, molested her.
•Even Alisha Chinai’s suit against music composer Anu Malik,
•demanding Rs. 26,60,000 as damages for sexual harassment, met with a similar fate. And since he wasn’t convicted, Malik in turn, filed a Rs. 2 crore defamation suit.
•Rupan Deol Bajaj
•A very well-known instance of a woman who faced sexual harassment at workplace taking the help of the law to teach the harasser a lesson is that of Rupan Deol Bajaj. She was slapped on the bottom by the then DGP of Punjab, K P S Gill. Accusing him of indecent behaviour, Bajaj fought an 8-year legal battle. The hard work paid off. Gill was convicted and sentenced to three months Rigorous Imprisonment
•G. K. Dalmia and his friend Sunil Jain
•A recent case which again has brought the debate on sexual harassment at workplace in focus is the death of the woman CEO of a tea company in Jaipur on 11th June, 2011. She committed suicide leaving behind a suicide note that on June 8th, 2011 the M.D. of her company G. K. Dalmia and his friend Sunil Jain raped her after having drugged her in the flat. She mentioned that the accused (G. K. Dalmia) wanted her to clear some company documents with financial irregularities which she refused. To teach her a lesson she was raped.
•
• Various International Women’s Human Rights•Why the cases of sexual harassment go unreported in India? •not aware that this behavior = sexual harassment.
•due to “fear of discrimination at workplace by their colleagues or superiors”.
– workplaces in India are male dominated . •lack of confidence in complaint mechanism •the attitudes of society - women are blamed
– management tries - ‘ might is right’ policy •The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, •international bill of rights for women.
– defines what constitutes discrimination against women and national action to end such discrimination.•defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." •States commit themselves to
–end discrimination against women –principle of equality of men and women in their legal system,
–abolish all discriminatory laws and
–adopt laws prohibiting discrimination against women;
–to establish tribunals to ensure the effective protection of women
–to ensure elimination of discrimination against women by orgs, persons, company•Indian enactments and judgements •1997 SC judgement in visakha vs state of rajasthan giving detailed guidelines–It is a landmark case
– need for laws for sexual harassment
– guidelines of sexual harassment of working woman.
•2012 - Act on sexual harassment at workplace passed in sept 2012 by lok sabha incorporating the above guidelines of SC. •Gender violence throughout the Life Cycle•CRIME AGAINST WOMEN• • sections relating to sexual harassment•Special and Local Laws •Back ground to SC guidelines •A most controversial and brutal gang rape at workplace involved a Rajasthan state govt employee who tried to prevent a child marriage•Rajasthan high court let the culprits free•NGO visakha filed PIL in SC•In 1997 SC passed the landmark judgement•A bill on same line was passed in 2012 •LEGAL DEFINITION •Sexual harassment includes such unwelcome sexually determined behaviour as
•Physical contact•Demand for sex•Sexually coloured remarks•Showing porno•Other physical, verbal, non verbal conduct of sexual nature – leering, dirty jokes, sexual remarks•FORMS OF SEXUAL HARASSMENT• 1. Quid Pro Quo :
–In these cases, a supervisor or mentor makes unwelcome advances of a sexual nature and either states or implies that the woman must submit, if she wants to keep her job, receive a raise and receive a promotion or a specific job assignment.
•2. Hostile Environment : Unwelcome sexual conduct can make the working environment ‘hostile’ to women in general.
–An environment is considered ‘hostile’ when unwelcome sexual conduct has the effect of poisoning the work environment. The central enquiry is whether the conduct ‘unreasonably interferes with an individual’s work performance’ or ‘creates an intimidating, hostile or offensive working environment.’ •3. Sexual Favouritism :
–This kind of harassment occurs when employees who provide sexual favours to their employer receive benefits in the form of raises, promotions etc., which one is denied because one refused those sexual advances.
•4. Harassment by Non-Employees•5. Same Sex Harassment
•6. Constructive Discharge
•7. “Not wanted in the inbox! Evaluations of unsolicited and harassing emails” –- a new form of sexual harassment via electronic means
• • • •Harassment Notifications • •The Protection of Women Against Sexual Harassment at Work Place Bill, 2010
•Circular for central govt employees on Vishaka case, 1998 •Supreme Court Guidelines on Vishaka case, 1997 •THE SCALE OF SEXUAL HARASSMENT•In India, every 53 minutes, a woman is reported to be sexually harassed and every 26 minutes a woman is sexually molested.36 Several studies indicate that the magnitude of unreported cases is several times over the estimate.37•Most studies focus on sexual harassment in general. •A recent survey in India has found that 68% women have suffered mental harassment and 26% have been physically molested at their workplace.• One study to be noted in this regard is Lawyers Collective Women’s Rights Initiative’s in 2008- “Law relating to sexual harassment at the workplace”39. It highlights the fact that sexual harassment of women is rampant in India and most of it is unreported. •INDIVIDUAL FACTORS• •The Victim:•A study by Kohlman (2004)40 reported that ‘women are not reporting sexual harassment based upon any one overriding factor integrally related to their gender’. A survey conducted by the Department for Trade and Industry (DTI) in 2005 in Britain41 showed that women and disabled people or people suffering from long-term illness were more likely to suffer sexual harassment at workplace than men which goes on to prove that profiles of victims do matter.•the SC has also done well •to rule that sexual harassment is violative of two fundamental rights guaranteed by the constitution- •the right to gender equality and
•the right to life and liberty.
•The Perpetrator:•It cannot be said with certainty how far the perpetrator’s mindset is relevant in the dominance of sexual harassment at workplace but individuals who are competitive, hard driving, or have low self monitorring for example, are more likely to exhibit negative behaviours as per a study.42•Another study by Done substantiates this point that men who have low levels of self-control are more likely to sexually harass than men with high levels of self-control.43•Also typically, the perpetrator of sexual harassment will be in a position of power and the victim will be comparatively powerless is a point which Wilson and Thompson bring out in their study.44• •The review of literature •also focussed on various studies and reports made by women organisations45•and international forums like UN and its organs, International Labour Organisation, World Bank etc. which are working towards this cause.46•The Status of Workplace Sexual Harassment in IT/ ITES Industry, 2010 by Centre for Transforming India, is one of the only surveys done in this field in India.47•The study showed that 88 per cent of 600 women employees, age 19 to 45, reported sexual harassment across IT and ITES sectors across NCR, Bangalore, Pune, Mumbai, Chennai and Hyderabad. •But one thing is for sure that sexual harassment at workplace is much more prevalent than we think.
• • •The salient features of the Prohibition of Sexual Harassment of Women at Workplace Bill, 2010 •? The Bill proposes a definition of sexual harassment as laid down in Vishaka and additionally recognises the promise or threat to a woman’s employment prospects or creation of hostile work environment as ‘sexual harassment’ at workplace and expressly seeks to prohibit such acts. ? The section 2 clause 1 of the bill provides protection not only to women who are employed but also to any woman who enters the workplace as a client, customer, apprentice, and daily wageworker or in ad-hoc capacity. Students, research scholars in colleges/university and patients in hospitals have also been covered. Further, the Bill seeks to cover workplaces in the unorganised sectors.
? The Bill provides for an effective complaints and redressal mechanism. ? The Bill provides for an effective complaints and redressal mechanism.14 ? Failure of the employers to comply with the provisions of the proposed Bill will attract a punishment of a fine which may extend to Rs. 50,000 under S. 27(1). ? Since there is a possibility that during the pendency of the enquiry the woman may be subject to threat and aggression, she has been given the option to seek interim relief form of transfer either of her own or the respondent or seek leave from work • •“It shall be the duty of the employer •or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.” • • • • •It is an obligatory requirement for employers: •Appropriate notification/advertisement to be issued for prohibition of sexual harassment at workplace for the employees of the company.
•State government, central government and PSU bodies to include in their conduct and discipline rules/regulations prohibiting sexual harassment plus mention of penalties for those found guilty of sexual harassment.•For private employers, prohibition of sexual harassment and penalties to be included in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
•Employers need to provide conducive & appropriate work conditions for women staff
•in the view of : work, health, hygiene & leisure. In short there mustn’t be any conditions creating hostile environment towards working women staff and any conditions which could put women at an disadvantage position with regards to her career compared to other male employees of the company.
•The employer will need to have a written complaint mechanism which will need to include time frame of resolution of sexual harassment claims.
•Employer should help the victim phychologically with counselling etc.
•Employer should maintain confidentiallity of the complaint and the identity of the woman who raised the complaint and complaint specifics.
•Employers are bound to inform the details of sexual harassment complaints to appropriate government bodies/labour department etc, every year. In short it’ll be illegal to hide any sexual harassment complaints raised in the company or with the employer and not report to government authorities.
•Employer should allow and encourage the employees to raise sexual harassment issues• in worker’s meetings and at appropriate forums. And all those complaints need to be affirmatively discussed. In other words the employer must provide easy way to discuss sexual harassment issues and should not show any lack of interest.
•Employer should take steps to make working women aware of their rights to equality in everything in workplace by prominently notifying the guidelines by appropriate means ( like sending emailers, sending letters, displaying rules on notice boards)
•If the sexual harassment is due to third party
•that is not anything related to the employer but by another person from different organization which you interacted with him as part of discharging your official duties whether in office space or outside, then the employer will need to take all necessary steps to assist and help the victim in the terms of support & preventive action
• •In law, every employer is required to constitute an Internal Complaints Committee.•Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
•Employers duty after receiving a sexual harassment complaint •The employer must assess the crime and if required legally, it must register complaint with appropriate government authorities. For major sexual harassment cases, it beehoves on the employer to immediately bring the issue to notice of local Police and also nearby women cells. The employers should not delay filing a police complaint just try to save it’s company’s image.
•The employer will need to ensure that the victim is not further traumatized or victimized. Employer must not persecute the victim in any way due to a woman’s complaint. •Setting up of Complaint Committee by the employers Committee should be headed by a woman • •More than 50% of committee members should be women
•The committee should also consist of third party members not affialiated to the company or employer in anyway. Preferably from NGO’s, women right activists who are familiar to the issue of sexual harassment. If you’re a victim then you should be quite vigilant to this member as every company/employer tries to include their "friends" in such committes which will not object to the decisions made by the committee members on their payrols and loyal to the company, prejudicing the sexually harassed woman. If it is the case, then please contact us immediately.
• •The Complaint Committees are required to complete the enquiry within 90 days and a period of 60 days has been given to the employer/District Officer for implementation of the recommendations of the Committee under S. 9(3).
• •Section 16 of the bill provides for safeguards in case of false or malicious complaint of sexual harassment. However, mere inability to substantiate the complaint or provide adequate proof would not make the complainant liable for punishment. But the bill suffers from a few drawbacks which can obstruct its effective functioning:
•The provision which penalizes the complainant if the committee concludes that the allegation made is false or malicious creates the opportunity for employers to manipulate the committee and may also dissuade women from making complaints due to the fear that they will be penalized.•There is also some doubt whether the Bill is applicable to minors in the workplace as the term ‘aggrieved woman’ is not defined such that it can be said with certainty whether this is applicable to child workers. Even domestic workers have been excluded from its purview.
•Although unorganized sector finds mention, the Bill seems to be still largely couched in terms of the organized sector establishments. •The provision that deals with the confidentiality of the identity of the woman may actually work against her. This is because no provision has been included to inform the woman about the progress of the enquiry. It must be ensured that a copy of the of the complaint enquiry report and the recommendations of the committee are made available to the victim upon her request on completion of proceedings.
•
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•Is it really sexual harassment?
•First clearly identify if yours is a clear case of sexual harassment. Not every harassment to working women may be termed as sexual harassment.
•A woman should ask herself some of the basic questions to identify the harassment such as:
–Is this behavior appropriate?
–Do I consent to this behavior?
–Is the behavior or comment violating my dignity as an individual or woman?
–Is the behavior creating an unsafe environment for me?
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•16 Important things you need to do if you suffer from sexual harassment
•Is it really sexual harassment?
•Don’t quit your job
•Make notes
•Don’t disclose it to your office personnel
•Your employer can’t fire you
•Keep working
•Complain with government authorities
•Keep you family informed
•Write plenty of letters
•Take advice from someone who has already gone through sexual harassment
•Narrate you horror story at sexual harassment forum
•Avoid using office internet facilities
•Always use Gmail in office
•Use a good recording device
•Take anonymous legal advice
•Throw away emotions and fight back using the law, society and family
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•The experience of harassment can be overwhelming for the victim.
•People often react with shock, humiliation, and intense anger. Therefore, the victim of harassment may not always feel comfortable going through the normal channels for resolving such a problem.
•It is the brave few who gather the guts to come up and talk about this problem openly in front of rest of the world.
•But as seen from the research findings more often than not their courage is slammed and suppressed.
•There are women organisations working in this area but their contribution can be just to bring out women in the open and encourage them to narrate their experiences but the judicial lacuna remains still.
•We do not have a substantive law to deal with the problem and this will continue to affect the problem at hand.
•Clearly, the “law” has failed to redress the problem.
•A general review of literature showed that most women in India, especially when we look at the rural and semi-urban class or the lower uneducated strata, are not even aware of their rights available against this menace of sexual harassment in the workplace.
•Findings also suggest that attitudes to sexual harassment in the workplace mirror society’s norms about sexuality and masculinity more generally- that it is normal and harmless behaviour, that it is women who provoke this behaviour and that it is an occupational hazard for women in the workplace. It often gets dismissed for being harmless or is simply ignored.
•The only way to solve this is to bring about a huge attitudinal change in the women in the country.
•When they have broken the shackles enough so as to be accepting work challenges they should garner courage to speak against these wrongdoings too.
To conclude, I see a variety of reasons responsible for the current endorsement of a culture of silence and denial which in effect renders the legal machinery ineffective.
•Most
women are not aware
•of the Supreme Court guidelines and complaints mechanisms/formal institutions of redress.
•The societal attitude that would blame them for provoking an incident or the loss of their reputation as a result of complaining is another thing which sounds a plausible reason which women might be afraid of.
• This is a harsh reality
•but most women who undergo the trauma of sexual harassment at workplace are in powerless positions and might fear job-related discrimination, including dismissal, and withholding of promotions and income. Also the fact that perpetrators are individuals who are in positions of authority further dampens their will to initiate action against them, which is bound to fail.
•The Supreme Court guidelines in Vishaka might have opened up the discourse on sexual harassment at the workplace, but it is clear that much remains to be done to address gender stereotyping and harassment in the working environment and to ensure that women have recourse to effective resolution of complaints.
•There needs to be awareness of the inappropriateness of sexual harassment
•and the rights of women workers is created and worked into the conduct rules for employees at all levels, irrespective of their positions.
•The prohibition of SHW bill needs to be pushed further with the rectifications of the flaws pointed in the previous chapter.
•I believe that the need of the hour is a broader canvassing of the issue,
•for people to be aware of the Guidelines and the Bill, and for employers to draft policies and create systems to check sexual harassment at work.
• There seems to be a consensus among the drafters on the following points:
•greater need of decentralization of punitive power;
•more and easily accessible complaints committees; arming the committee with more teeth;
•instituting a time- bound and clearly defined punitive process; and rendering the employer liable for inaction.18
•Non Governmental Organisations and women organisation are doing their share, but
•in order to make sure that the message reaches a larger audience we need to have every organisation taking up these cudgels.
•Confidence building is another area which needs to be worked upon
• so that coming out of the cocoon and filing a complaint is an easier process for the women.
•All in all, what may be concluded is that Law and sociology have a rather complex relation and legal developments precede sociological and attitudinal changes. Hence a fair mix of both sociological changes and legal advancement is required to solve the problem of sexual harassment at workplace.
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•Torrent Pharmaceuticals sacks executive for sexual harassment May 11, 2012
•Ajmer railway clerk attempts suicide over workplace sexual harassment Apr 2, 2010
•Maharastra govt official dismissed over sexual harassment Feb 2, 2012
•Sexual harassment law may soon cover domestic workers Jan 12, 2012
•Sexually harassed by senior 9 yrs ago, woman SI gets Rs50K compensation Dec, 2011
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•the allegations of sexual harassment against the US-based head of sales at Infosys, Phaneesh Murthy, and Canada-based CEO of Penguin International, David Davidar,
•both of whom were forced to resign
•In both cases, the men in question were working abroad and in both cases, the women were white, leading to speculation that action might not have been as quick and as severe had the victim been Indian and the setting an Indian office. Both cases were settled out of court.
•Closer home, in 2005-06, an Indian Air Force pilot Anjali Gupta was court martialled and dismissed from service
•for misconduct after she accused three superiors of sexually harassing her. The sexual harassment charges were referred to a court of enquiry which said she failed to prove her case. A year later, three trainees were suspended when they levelled similar charges against an instructor.9
But Shehnaz Mudbhatkal case
• is one of the oldest cases in which sexual harassment at the workplace, as an issue, captured the collective consciousness of working women back in 90’s. This brave woman worked as an air hostess for Saudi Arabian airlines. Her services with Saudi Arabian airlines were terminated because she refused to surrender to the sexual demands made by her superior. She did not give in rather filed a suit which she fought for 11 years. In 1997, she was awarded full wages and continuity of services with effect from 1985.10
•In another case of 1994, Doordarshan (Hyderabad) producer Sailaja Suman
•took director P L Chawla to court on charges of defamation, criminal intimidation and trying to outrage her modesty. She filed two separate cases in the metropolitan magistrate’s court. She met with zero support from her colleagues. And rather unfortunately, Suman was transferred to Lucknow.11
•Yet another case where grave injustice was done, where Nutan Sharma, a steno in the Union Ministry of Railways, was transferred, following her complaint that R P Sharma, secretary to the Chief Operating Manager, molested her.
•Even Alisha Chinai’s suit against music composer Anu Malik,
•demanding Rs. 26,60,000 as damages for sexual harassment, met with a similar fate. And since he wasn’t convicted, Malik in turn, filed a Rs. 2 crore defamation suit.
•Rupan Deol Bajaj
•A very well-known instance of a woman who faced sexual harassment at workplace taking the help of the law to teach the harasser a lesson is that of Rupan Deol Bajaj. She was slapped on the bottom by the then DGP of Punjab, K P S Gill. Accusing him of indecent behaviour, Bajaj fought an 8-year legal battle. The hard work paid off. Gill was convicted and sentenced to three months Rigorous Imprisonment
•G. K. Dalmia and his friend Sunil Jain
•A recent case which again has brought the debate on sexual harassment at workplace in focus is the death of the woman CEO of a tea company in Jaipur on 11th June, 2011. She committed suicide leaving behind a suicide note that on June 8th, 2011 the M.D. of her company G. K. Dalmia and his friend Sunil Jain raped her after having drugged her in the flat. She mentioned that the accused (G. K. Dalmia) wanted her to clear some company documents with financial irregularities which she refused. To teach her a lesson she was raped.
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