Sexual assault is a pandemic that is increasing at an exponential rate but isn’t talked about enough. In India, a woman is assaulted sexually every 12 minutes.
Sexual harassment violates right to life and right to live with dignity under Article 21 of our Constitution. When a woman is harassed where she works, along with rights under Article, her right to practice profession [Art. 19 (1) (g)] and right to equality (Art. 14 & 15) are also violated. Prior to 1997, India did not have any formal guidelines on how to deal with sexual harassment at the workplace. However, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or PoSH provides guideline on how the aggrieved woman and the employer should deal with sexual harassment at the workplace. 2019 saw 14% rise in sexual harassment complaints at the workplace in India.
Sexual harassment, as defined by the Supreme Court in Vishakha vs. State of Rajasthan and PoSH, includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Before we lay out the steps on how to deal with sexual harassment at workplace, there are few terms namely Internal Committee and Local Committee that will be helpful in understanding the steps clearly. These are defined below-
- Internal Committee- According to Section 4 of the PoSH Act, a workplace with more than 10 members shall have at least 4 members and at least 50% of the members shall be women in the internal committee. There shall be one presiding officer, two employee members dedicated to the cause of women or the legal knowledge or experience they possess in social work and one external member committed to the cause of women or familiar with the issue of sexual harassment.
- Local Committee- According to Section 5 of the Act, if a workplace has less than 10 members or when the complaint is against employer himself, then it is the local complaints committee that will receive the complaint. The Local Committee is made at district level and the District Magistrate, Additional District Magistrate, Collector or Deputy Collector is notified by the appropriate government to serve as the District Officer. It is the duty of the District Officer to constitute a Local Committee in their district. The District Officer has to designate one Nodal Officer in every block, taluka, and tehsil in rural or tribal areas. In an urban area, a Nodal Officer has to be appointed for every ward or municipality. Section 7 provides that the Local Committee shall have at least 5 members constituting of the District Officer as the default member, one chairperson nominated from among eminent women in the field of social work and committed to the cause of women, one member nominated from among the women working in a block, taluka, tehsil or ward or municipality in the district and two members nominated, out of which at least one should be from such NGOs or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
Here, we provide you simple step-by-side guide on how to deal with sexual harassment at workplace.
Step 1- Filing a complaint
- A complaint of sexual harassment at workplace is to be made in writing to the Internal Committee or the Local Committee. If the aggrieved woman cannot write, the Presiding Officer or any member of the said committees shall assist her in filing her complaint in writing.
- The complaint is to be filed within 3 months of the incident.
- If the aggrieved woman is unable to make the complaint due to any reason such as physical or mental incapacity or death, the legal heirs of the woman can also make a complaint on her behalf within 3 months of the incident.
Step 2- Conciliation
- The Internal Committee or the Local Committee, before starting an inquiry and at the request of the aggrieved woman may decide to settle the matter between her and the respondent through the method of conciliation and the settlement shall not be monetary. If there is a settlement, there shall be no inquiry later.
Step 3- Inquiry into complaint
- The Local Committee or the Internal Committee will forward the complaint to the police if a prima facie case exists under Section 509 of the Indian Penal Code.
- If a settlement was reached but the respondent has not complied to the same, the aggrieved woman shall inform the Internal or Local Committee and the Committee will proceed to make an inquiry into the complaint or forward the same to police.
- During the inquiry, the Committee may recommend the employer to transfer the aggrieved woman or the respondent to any other workplace, grant leave to the woman up to a period of three months or grant any other leave as prescribed to the aggrieved woman.
- If the Committee comes to a conclusion that the allegations made by the woman are true then the committee shall recommend the District Officer or the Employer to-
- Take action for sexual harassment as a misconduct against the respondent in accordance with the provisions of the service rules.
- To deduct salary or wages of the respondent as it considers appropriate to be paid to the aggrieved woman or the legal heirs.
- If the respondent is unable to pay from his salary or wages, the Committee may forward the order for the recovery of the sum as an arrear of land revenue to the concerned District Officer.
- The employer or the District Officer shall act upon the recommendations within 60 days of received it.
- If the Committee does not find the allegations to be true then it shall recommend the employer or the District Officer that no action is required to be taken in the matter.
Step 4- Determination of compensation
- While determining compensation, the committee may take note of-
- the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
- the loss in the career opportunity due to the incident of sexual harassment;
- medical expenses incurred by the victim for physical or psychiatric treatment;
- the income and financial status of the respondent;
- feasibility of such payment in lump sum or in instalments.