Law

Good To Know : How To Deal With Workplace Sexual Harassment ?

From our friends at
Nyaaya

December 24th, 2018

SHARES

The importance of the #MeToo movement cannot be understated and equality of at the workplace can only be achieved when procedural and institutional hurdles don’t block the mechanisms of filing a complaint. Breaking from the shackles of oppression requires a progressive outlook towards the law and both women and men should have equal opportunities for achieving their career goals. Such progress is hampered by acts of sexual harassment at the workplace as for victims of sexual harassment, there are direct consequences which affect their work and living conditions.

There also exists an atmosphere or humiliation and intimidation for the victim. Usually, in workplaces, common instances of sexual harassment may be, for example, repeated social invitations for drinks or dinner and flirting where sexual favours are anticipated or expected. Sexual harassment affects women both economically as well as psychologically.

Sexual harassment is both sexual behaviour and unwelcome behaviour. It may be subtle or may be very direct, which is usually common because the person harassing is in a position of authority. Sexual harassment is not limited to sexual demands or favours made under the threat of job consequences. The term “sexual” embraces a wide range of behaviour in the workplace. The most common forms of harassment which are “sexual” in nature are:

  • Physical Harassment: physical acts of touching which is unwelcome, kissing, pinching, starting with lust etc.
  • Verbal Harassment: sexual jokes, sexual comments about a person’s body etc.
  • Gestural Harassment: gestures which are sexual in nature such as nods, winks, licking lips, gestures with hands, legs, fingers etc.
  • Written or graphic harassment: sexually explicit pictures, harassment through emails, pornographic material etc.

Authored By Malavika Rajkumar (Legal Researcher Nyaaya)

PART 1

Who is a victim under the law?

As per the Sexual Harassment law, the victim can only be women. As a victim under the law, you can be a working woman in any capacity such as a full-time employee, a part-time employee, a visitor to a workplace, domestic help etc.

How do you complain about sexual harassment?

You have to file a complaint to the Internal Complaints Committee, which is a committee set up within your organization. An employer has to set up this committee under the law and you can approach the committee to file a complaint regarding any workplace sexual harassment. You can file a complaint in the following manner:

  • Draft a complaint, make six copies of the complaint, make sure to submit any supporting documents for the complaint with the complaint.
  • Make sure you submit the names and addresses of any witnesses who are supporting your complaint.
  • Submit your complaint to the Internal Complaints Committee within three months of the sexual harassment.
PART 2

Internal Complaints Committee?

Workplaces with more than 10 employees are required to set up an Internal Complaints Committee that specifically handles cases of Sexual Harassment. The Internal Complaints Committee has to follow the regulations for taking complaints and making inquiries in a reasonable amount of time. The company or institution has to give the Internal Complaints Committee the things they need to make inquiries.

What is the time limit to file a complaint to the ICC?
You have to submit your complaint to the Internal Complaints Committee within three months of the sexual harassment.

Does the law protect you after filing a complaint?

The law protects you in the following ways and prevents you from being sacked or sidelined if you have accused someone of sexually harassing you at the workplace.

  • Making the Environment Safer: If you are a victim of sexual harassment you can write to the Internal Complaints Committee to ask them to make your place of work safer.
  • Granting Leave: If you are sexually harassed at work and have filed a complaint, usually an Internal Complaints Committee will look into your case. While they are doing this, your employer cannot force you to keep working or take away any leave you are owed. You can use your leave and even ask the Committee for more.
  • Privacy of the Woman: As a victim, you have a right to keep your complaint and the things that happen after it private. Information such as name, address etc. cannot be published, communicated, or made known to the public, press, or media in any way.

What is the role of the organization under the law?
Every organization or workplace mandates the formation of the Internal Complaints Committee to which direct complaints can be made by the victim of the crime. Under the law, an employer has to take certain steps to create a safe work environment for women.

The employer is punished with a maximum fine of fifty thousand rupees under the law, if an Internal Complaints Committee has not been established in the organization or if any provision of the law has not been followed. The responsibility to prevent sexual harassment at the workplace in organizations lies with the employer and thus, any omission on his part to fulfil his duty leads to a penalty under the law.

PART 3

If the victim is dissatisfied with the ICC, can she go to the Court?

Yes, the victim can file a complaint against a company/employer if she feels that her complaint to the Internal Complaints Committee has not materialized, then she can appeal the decision under the law.

Option 1: Labour Court
In all matters where service rules are not applicable, such appeals can be submitted before the Labour Court cu Industrial Tribunal or anybody designated under the State Government as an appellate authority Industrial Employment(Standing Orders) Act.

Option 2: High Court/ Supreme Court
However if there is any irregularity or defect which is so glaring that it is apparent on the face of the record, for example, not constituting an ICC, a writ petition may be filed against the award in the High Court or Supreme Court under Article 226 (High Court) or Article 32 (Supreme Court) of the Constitution of India.

If a woman faces any financial hurdles in raising an industrial dispute, it is important to note that the Legal Services Authorities Act, mandates free legal aid to all women and industrial workmen. Further, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class can try any offense punishable under this Act.

Apart from approaching Courts, a woman can approach a Local Complaints Committee in her district to resolve her complaint in case the ICC has not done so or filed an appeal if required.

Is there an alternative remedy apart from the ICC?

You also have an option to file a criminal complaint if you are being sexually harassed at work. A Criminal Complaint, if proved, will put your harasser in jail. Criminal law in India makes the acts of sexual harassment illegal, thus, allowing you to approach the police by filing an FIR or making a private complaint to the Magistrate

Is there any recourse in the law if employees have issues about people selected for ICC?

An employee can make a complaint to the employer if certain criteria have been fulfilled and the employer has the power to remove the person from the ICC. After a member is fired from the committee, the employer will have to find a new member to replace them.

 

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