Sexual Harassment at Workplace
Sexual harassment exists in almost every sector and industry, but it’s astonishing that most companies turn a blind eye or are often ignorant about such an important compliance. The only way to combat it is by increasing awareness and knowledge. Sexual Harassment is one issue that has probably plagued every institution, big or small. Unfortunately, it still remains one of the most unreported offences of all times. Although, campaigns like #MeToo acted as an eye-opener, sexual harassment at the workplace still remains behind the closed doors of glass cabins.
What is Sexual Harassment?
In simple words, sexual harassment at workplace is an act or a pattern of behaviour that compromises physical, emotional or financial safety and security of a woman worker. Sexual harassment has been identified as a term which is difficult to define as it involves a range of behaviours. Efforts have been made at both national and international levels to define this term effectively. often, the term is subjected to different interpretations. Some believe that it is better not to mingle with female colleagues so that one does not get embroiled in a sexual harassment complaint. The reality of sexual harassment incidents at the workplace is that there is more to worry about under-reporting, than people misusing the law.
In 1997, in the landmark judgment of Vishaka and others v. State of Rajasthan, the Supreme Court of India defined sexual harassment at the workplace, pronounced preventive, prohibitory and redress measures, and gave directives towards a legislative mandate to the guidelines proposed.
Sexual Harassment includes many things:
• Physical conduct of a sexual nature that includes all unwanted physical contact,
o ranging from touching,
o to sexual assault and rape, and
o includes a strip search by or in the presence of the opposite sex.
• Verbal forms of sexual harassment that includes;
o unwelcome insinuations,
o suggestions and hints,
o sexual advances,
o comments with sexual overtones,
o sex-related jokes or insults,
o or unwelcome graphic comments about a person’s body made in their presence or directed toward them,
o unwelcome and inappropriate enquiries about a person’s sex life, and
o unwelcome whistling directed at a person or group of persons.
• Non-verbal forms of sexual harassment including;
o unwelcome gestures,
o indecent exposure, and
o the unwelcome display of sexually explicit pictures and objects.
o Making or posting sexually demeaning or offensive pictures, cartoons or other materials in the workplace
o Giving gifts or leaving objects that are sexually suggestive
• Quid pro quo harassment occurs where an owner, employer, supervisor, member of management or co-employee, undertakes or attempts to influence the process of employment, promotion, training, discipline, dismissal, salary increase or other benefits of an employee or job applicant, in exchange for sexual favours.
What the law says?
The safety of the people shall be the highest law of the land. The judiciary is the pillar for justice as it not only provides redressal mechanisms, but it also punishes the offender. The law on sexual harassment has mushroomed and nurtured after the 1997 landmark decision of the Supreme Court in the Vishaka v State of Rajasthan.
While hearing the matter, the Supreme Court noted the lack of legal recourse against sexual harassment at workplace. The Supreme Court defined what would constitute sexual harassment at workplace and issued guidelines that were to have statutory value until a proper law was enacted by Parliament.
Before the Supreme Court set the law against sexual harassment at workplace in order, such cases were dealt under IPC Section 354 (outraging the modesty of women) and Section 509 (using a word, gesture or act intended to insult the modesty of a woman).
In 2013, substantial changes were made in the way sexual harassment was viewed within the criminal justice system in India. The Criminal Law Amendment Act of 2013, which commenced on April 3, 2013, included Section 354A of the Indian Penal Code, 1860 that defined sexual harassment. The India Penal Code, 1860 has also defined the term sexual harassment and related offences and put forth punishments for the same:
• Section 354A- Sexual harassment is: unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks
Punishment: Up to three years in prison, and a fine.
• Section 354B– Forcing a woman to undress.
Punishment: From three to seven years in prison, and a fine.
• Section 354C– Watching or capturing images of a woman without her consent (voyeurism).
Punishment: First conviction – one to three years in prison and a fine. More than conviction–three to seven years in prison and a fine.
• Section 354D– Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).
Punishment: First conviction – up to three years in prison and a fine. More than one conviction–up to five years in prison and a fine.
The same definition is given in the law enacted specifically for Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013.
However societal attitudes towards sexual harassment has impeded any effective implementation of the law.
Why not reporting?
Though sexual harassment at the workplace has assumed serious proportions, women do not report the matter to the concerned authorities in most cases due to fear of reprisal from the harasser, losing one’s livelihood, being stigmatized, or losing professional standing and personal reputation.
How can a company create a safe work environment?
Many practical steps can be taken, as part of an integrated program, to counter harassment:
1) A clear policy from management
Management must develop a clear definition of, and policy on sexual harassment.
Concerned people should also help to make the need for such policies known.
2) Awareness of the problem, and of own, and others’ rights
Managers and all employees (male and female) must become aware of the problems inherent in harassment, and must know how to handle it.
If a clear policy exists and is well promoted, both the person being harassed, and the person considering harassing someone, will know what the individual’s rights are – what’s acceptable, and what isn’t; also where the person being harassed can lodge a complaint.
3) Complaints and disciplinary procedure
There must be clear guidelines on reporting and disciplinary procedures in cases of harassment, and these must be communicated to all staff members.
Appropriate staff members can be selected, appointed and trained as complaints officers with authority to institute disciplinary measures when necessary.
In large companies, counsellors can be appointed and trained to provide support and to give advice to staff who are sexually harassed or to counsel harassers if required. These may be the same people as the complaints officers, and could possibly also sensitise and train managers and supervisors in the implementation of the policy.
Employers should include the issue of sexual harassment in their orientation, training and education programmes of employees.
Grievances regarding sexual harassment must be handled in a confidential manner in regards to both parties:
Only appropriate parties (appropriate management, the aggrieved and their representatives, the alleged perpetrator and their representatives, witnesses and an interpreter if necessary) may be present in disciplinary enquiries.
It must be ensured that either party (or their representative) receives necessary information to enable them to prepare for any proceedings outlined by the company code of conduct.
6) Other supporting measures
Confidence training and development of a healthy self-esteem will help employees to deal with harassers.
An effective employment equity programme, that ensures well-planned career paths for all – based on merit, while also ensuring that people disadvantaged in the past get a fair deal – will reduce the vulnerability of individuals to harassment by people who abuse their power and authority.
A positive corporate culture, in which the rights and dignity of all staff members are respected, and a positive example is set by management, will do much to create a healthy environment in which sexual harassment can’t flourish.
Employees’ Rights and Responsibilities
Any employee who believes he or she has been the target of sexual harassment is encouraged to inform the offending person orally or in writing that such conduct is unwelcome and offensive and must stop. Complaint on sexual harassment at the workplace must be made by the aggrieved woman within a period of three months from the date of occurrence of an incident. In case of a series of an incident, within a period of three months from the date of last incident.
The complaint must be made in writing and submitted to the Internal Complaint Committee and be sent either by post or given in person. The Internal Complaint Committee also has the powers to extend the time-limit for reporting by not more than three months, if it is satisfied that the circumstances were such which prevented the employee from filing a complaint within the three-month period.
If the employee does not wish to communicate directly with the offending person, or if such communication has been ineffective, the employee has multiple avenues for reporting allegations of sexual harassment and/or pursuing resolution, complaint can be filed by:
• Her relative or friend.
• Her co-worker.
• An officer of the National Commission for Women or State Women’s Commission.
• Any person who has knowledge of the incident, with the written consent of the aggrieved woman.
If an aggrieved woman is unable to make a written complaint by herself on account of her mental incapacity, a complaint can be filed by:
• Her relative or friend.
• A special educator.
• A qualified psychiatrist or psychologist.
• The guardian or authority under whose care she is receiving treatment or care.
• Any person who has knowledge of the incident jointly with her relative or friend or a special education or qualified psychiatrist or psychologist or guardian or authority under whose care she is receiving treatment or care.
• Finally, if an aggrieved woman is unable to make a written complaint by herself on account of her mental incapacity or physical incapacity or death, a complaint can be filed by her legal heir.
Employer Rights and Responsibilities
• Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
• Display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4 of the Act providing that every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”: Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices;
• Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
• Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an enquiry;
• Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
• Make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made.
• Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force;
• Cause to initiate action, under the Indian Penal Code, 1860 or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
• Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• Monitor the timely submission of reports by the Internal Committee.
Impact on Organization
• Financial impact: The biggest challenge that any sexual harassment case brings for a company is undoubtedly the financial repercussions. This happens because of absenteeism, low productivity, and staff turnover as a result of sexual harassment. It’s not just non-compliance penalty, but also settlement costs at a later point in time.
• Distortion of public image: Continuous media lynching at even the mere speculation of a sexual harassment case can tarnish a company’s reputation. With the upsurge of social media and never-ending media debates, the trouble has increased manifold. It is undeniable that any company primarily runs on its goodwill. With this loss of reputation, a company may find it tough to crawl out of the pit.
• Effect on work production: A recent study reveals that if an employee has faced sexual harassment at the workplace, their output will certainly be affected. This is a no-brainer, but this phenomenon is not restricted to the victim alone. Sexual harassment at any workplace also creates a lot of insecurity, disloyalty, and disharmony among other employees as well. This leads to a situation of lesser work production and acts as a huge impediment to the company’s progress.
So, what can you do if you’re experiencing sexual harassment at work?
• Be clear and firm. If the person harassing you is told when it happens the first time that you don’t approve and don’t find it funny, they might back off. Be polite, but firm, and don’t giggle. This might be interpreted as a tacit type of consent.
• Say “No” Clearly. Tell the person that his/her behaviour offends you. Firmly refuse all invitations. If the harassment doesn’t end promptly, ask the harasser to stop and put it in writing. Keep a copy of this written communication.
• Write Down What Happened. As soon as you experience sexual harassment, start writing it down. Write down dates, places, times, and possible witnesses to what happened. If possible, ask your co-workers to write down what they saw or heard, especially if the same thing is happening to them. Remember that others may (and probably will) read this written record at some point. It is a good idea to keep the record at home or in some other safe place. Do not keep the record at work.
• Tell others. Don’t keep quiet; this will only make you more vulnerable. Harassers like isolating their victims – physically and socially. If you tell others what’s going on you might also find out that you’re not the only one experiencing such situations. If more than one person lays a complaint, it significantly strengthens the case against the harasser.
• Don’t doubt yourself. Harassers often try and pass something off as a joke, however, if it’s continuously at your expense, or attacks your sense of dignity, you’re being harassed. Don’t allow harassers to make you doubt your observation, how their actions make you feel or that you’re overreacting.
• Safety in numbers. Make sure that you’re not alone with this person behind closed doors. Take a colleague with you if you feel threatened, and insist that doors be left open if you have to be in a meeting. Make sure that somebody knows where you are at all times.
• Report The Harassment. If it is possible for you to do so, tell your supervisor, your human resources department or some other department or person within your organization who has the power to stop the harassment. If you can, it is best to put your complaint in writing.
• Start A Paper Trail. When you report the sexual harassment to your employer, do it in writing. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. Keep copies of everything you send and receive from your employer.
• Find Out About Your Employer’s Grievance And Complaint Procedures. Many employers have policies and procedures written down that deal with how to make and respond to sexual harassment complaints. To find out your employer’s policies, look for or ask to see a copy of your employee manual, any written personnel policies, and/or speak to someone in the human resources department, if one exists. You may be able to use these procedures to stop the harassment and resolve the problem. At the very least, following your employer’s complaint procedures (if any exist) will show that you did what you could to make the employer aware of the harassment.
• Involve Your Union. If you belong to a union, you may want to file a formal grievance through the union and try to get a shop steward or other union official to help you work through the grievance process. Get a copy of your collective bargaining agreement to see if it discusses the problems you are experiencing. Keep in mind that if you use your union’s grievance procedure, you must still file a complaint (or “charge”) of discrimination with a government agency before filing a lawsuit in court.
• Be Aware of Deadlines! Do not delay in reporting the problem to your employer, if it is possible to do so. If you start to feel that your employer’s process for dealing with the sexual harassment may not help you, be aware that doing nothing could mean losing your rights! This is very important! There are legal deadlines for filing a formal complaint or charge of discrimination with government agencies, and you cannot bring a lawsuit against your employer unless you have first filed a complaint with the court or the agency that enforces your state’s employment discrimination laws.
Some Myth and Facts about Sexual Harassment
|Only certain types of people harass others||People of all types and in all kinds of occupation have been founded to be harassers. They can be people in power, co-workers and even subordinates.|
|Sexual Harassment is ‘natural’ male behaviour. Man is the hunter and women the prey.||Men are not born knowing how to sexually harass others. It’s learned within the context of a sexist and patriarchal environment that perpetuates control over women sexuality, fertility and labour.|
|Women don’t rape||Women can also be sexual aggressors|
|Men who rape are ‘psychos’||Men who rape are mostly ordinary, everyday guys.|
|Harassment will stop if a person just ignores it||Harassers often believe that if a person ignores inappropriate / harassing behavior, that’s proof that the behavior is welcome. Many times, the behavior escalates and turn ugly|
Every employer should recognize the right of every employee and volunteer to be able to attend work and to perform their duties without being subjected to any form of sexual harassment. It is the obligation and responsibility of every employee and volunteer to ensure that the workplace is free from sexual harassment.
Green wind solutions will help your company to frame a sexual Harassment policy and guidelines for your company intends to provide protection against sexual harassment of women at workplace and the prevention and redressal of complaints of sexual harassment and matters related to it.