(On Sexual Harassment at Work Place, Safety of Women - Law and Remedies...)
Me: What's the matter ? The tongue that never ceaseth, lies but taskless ! ?
Avinash: Nothing, brother. Just a little something chewing my nerves.
Me: Ok, you can let 'em chew mine for the time being. Speak up.
Avinash: (Sighs). Well..umm..I'm not sure if it would be right for me to share this information with you.
Me: I didn't know you had information concerning National Security.
Avinash: It concerns somebody's privacy.
Me: See, if you think that it's something in which I can help you out then I think you should tell me. You can keep the names to yourself. OK ?
Avinash: I don't know......Ok.
There's this friend of mine who works as an Executive in a multinational IT company. She bagged this job a couple of years back during her college's campus placement. Since the last 2 years she has been very upbeat about her job profile and her office life. In short she enjoyed her job, till couple of months back, when I noticed that she started remaining depressed and became quite irritable.
Avinash: Despite my repeated queries she never disclosed the cause, till yesterday, when I caught her crying and insisted her to tell me what's going on..............
Me: Please don't hesitate...continue.
Avinash: After a lot of persuasion she told me that she has been denied her due promotion.
Me: Alright. Listen. Things like these happen. You know what, life isn't always fair. You should encourage your friend to move on and work with double the verve, so that she definitely wins her promotion the next time.
Avinash: It's not that simple. What you just said was also somewhat my reaction, but there's more to it than meets the eye buddy.
Me: Tell me.
Avinash: After assuring her that our little talk will remain private, she told me the real story behind denial of her promotion.
Me: Go on
Avinash: A couple of months ago, their head office sent a new Office Manager to their local office here. Initially he was quite affable towards everyone including my friend, but eventually he started picking her petty faults and began to publicly humiliate her.
Me: Are you telling me that her previous bosses had never done such things ?
Avinash: I asked her and she told me that she has been one of those few employees whom their bosses always look out for in times of need, for by her sincerity and mettle she had carved quite a name for herself in the office.
Avinash: So, initially she could not see beyond the apparent and kept thinking that it must be her fault. One day her boss called her to her chambers. After giving her a quick dictation for an official correspondence he embarrassed her by asking something very personal to her. Now please don't ask me what's the question. Just know that it relates to something intimate & sexual....Ok ?
Me: Go on go on..
Avinash: Things didn't stop there, he repeatedly kept inviting her for late night dinners. He'd often talk obscene stuff right in her presence. Then one day he invited her to join him on a two day vacation trip to a nearby tourist spot. My friend decided to end the matter for once & for all. So she finally explained to her boss that she isn't the kind of girl he thinks her to be and that it wold be best if he stopped persuading her.
Me: What was his reply ?
Avinash: At that moment there was none. But after a harrowing two months of public display of bossiness, he finally took his revenge by not recommending her promotion to the Head Office. And thus a hard working, sincere employee, having dedicated two and a half years of her sweat and blood was denied recognition just because her pervert boss could not have his way with her.
Me: Yeah, a classic case of sexual harassment at workplace.
Avinash: What ?
Me: Sexual harassment at workplace
Avinash: Did you just coin that phrase?
Me: No I didn't coin it. What you described is a case where a man, taking advantage of his official position, is indulging in indecent behavior with his subordinate colleague and since this is happening in the office, we refer to it as a case of sexual harassment at workplace.
Avinash: Ok. Tell me everything about it, may be this can help my friend.
Me: In 1997, the Supreme Court of India while delivering its landmark judgment in the case of Vishakha Vs. State of Rajasthan, recognized the menace of sexual harassment at workplace. The Hon'ble Court not only held it to be a violation of human rights, but also laid down a comprehensive definition and set of guidelines regarding the problem and issued directions for immediate follow up action by the incumbents.
Avinash: What had happened in the Vishakha case ?
Me: A female social worker in a tribal village of Rajasthan, fighting, if I'm not mistaken, against the vice of child marriage, was brutally gangraped by men who were opposed to her work. Though that case was the subject matter of a separate criminal trial, the incident brought to the fore the hazards to which working women of our society are exposed. Aggrieved and enraged by the incident, an NGO by the name of Vishakha alongwithe other social activists, filed a class action petition in the Hon'ble Supreme Court with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realization of the true concept of gender equality; and to prevent sexual harassment of working women in all work places through judicial process.
Avinash: Are you telling me that at a time as late as 1997 when India had already claimed to be a welfare State, there was no legislation to offer protection to the class of working women.
Me: No. It was with this objective only that the petition was filed before the Supreme Court, so that till appropriate legislation is enacted, the Supreme Court finds an effective alternative mechanism to fulfill this felt and urgent social need.
Avinash : Just a little while back, you said that sexual harassment amounts to violation of human rights, how is that ?
Me: Of course it does. Not only human rights but also constituitional rights guaranteed under our Constitution. You see aach such incident results in violation of the fundamental rights of Gender
Equality and the Right to Life and Liberty. It is a clear violation of the rights under Arts. 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victims fundamental right under Art. 19 (1)(g) (i.e. to practice any profession or to carry out any occupation, trade or business).
As per "The Protection of Human Rights Act, 1993" the term human rights means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in International Covenants and enforceable by Courts in India. So upon a conjoint reading of all the Constitutional safeguards provided to women in our country and the definition of human rights under The Protection of Human Rights Act, 1993, it is clear that sexual harassment at workplace is not a trivial folly but an act as grave as one resulting in violation of the victim's constitutional & human rights. So its bound to attract the highest form of penalty possible.
Avinash: But you said that there are no laws in place, to counter this evil.
Me: By laws I meant that there are no Parliament made laws. But in the Vishakha case, the Hon'ble Supreme Court seized the opportunity and besides laying down the meaning and definition of sexual harassment at work place, also drafted a set of comprehensive guidelines to counter the problem, . That judgment has, by virtue of the existing legal principles, the force and effect of law, till an appropriate legislation is enacted by the Parliament. While so doing, the Supreme Court has relied on CEDAW (Convention for Elimination of All Forms of Discrimination Against Women ) a sort of treaty / international accord which India has signed and ratified. But that by itself does not translate the treaty into a domestic law, not until our Parliament has formally passed a legislation touching that subject matter.
Avinash: Alright. Tell me what exactly is sexual harassment at workplace.
Me: As per the judgment of the Supreme Court, sexual harassment at workplace is defined as
any 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
Avinash: This means, what my friend's boss did, clearly falls in this category of behavior and thus amounts to sexual harassment at workplace.
Me: You bet. Why else do you think I said that it was a classic example. There's more.
Avinash; Yeah sure. Go on
Me: The legal protection is attracted as soon as any of these objectionable acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the her employment or work, such conduct can be humiliating and may constitute a health and safety problem OR that it is discriminatory, for instance when the woman has reasonable grounds to believe that her objection against such action would disadvantage her in connection with her employment or work including recruiting or promotion or it may create a hostile work environment. Now it is immaterial whether the victim / complainant is drawing salary OR an honorarium OR working voluntarily. It is also irrelevant whether she is working in Government, public or private enterprise.
Avinash What are the guidelines ?
Me: The Supreme Court, by its judgment has enjoined a heavy duty upon the employer to prevent and / or deal with instances of sexual harassment at workplace. It shall be the duty of the employer or other responsible persons in work places 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.
So far as prevention is concerned :-
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment.
Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined at the work place should be notified, published and circulated in appropriate ways.
(b) Awareness of the rights of female employees in this regard should be created
in particular by prominently notifying the guidelines ( and appropriate legislation when
enacted on the subject ) in a suitable manner.
(c) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(d) As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(e) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Avinash : Can't the victim initiate criminal proceedings against the perpetrator ?
Me: Why not? The Supreme Court has made it clear that none of its guidelines will prevent the victim from taking recourse to any other remedy if available to her under the civil or criminal law of our country. Furthermore, the Hon'ble Supreme Court has pronounced that it is obligatory on the employer that where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
Avinash : Suppose the misbehavior is such that it does not attract criminal action, then what options are left with the victim ?
Me: Where such conduct only amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
Avinash: Ok. tell me one thing, whenever a person feels that he's made a target of sexual harassment then whom should that person go to.
Me: You've raised a vital question. The Supreme Court order also speaks elaborately on establishment of Complaint Mechanisms. Thus the law is that whether or not a particular conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employers organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints. The framework of that mechanism ought to be in the prescribed manner. That is to say the complaint mechanism,, should be adequate to provide, where necessary, a special counselor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them. More to this, employees should be allowed to raise issues relating to sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer - Employee Meetings.
Avinash: What if a third person, say a person not under the control or employment of the office, causes harassment to an employee ?
Me: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable, to assist the affected person in terms of support and preventive action. None of the guidelines laid down by the Supreme Court will prejudice the remedies available under the civil, criminal laws of our country including those available under the Protection of Human Rights Act, 1993. We all must understand that the guidelines and directives of Supreme Court, if disobeyed, shall attract Contempt action against the erring individual / organization, besides other penal hardships.
Avinash: With such full proof mechanism in place I'm sure women must be feeling much safer in their workplaces.
Me: The answer is a shocking 'No'. There has been widespread breach of the guidelines, rarely have any complaint committes been set up. There has been a blatant disregard for the rules. Its not that law is toothless, rather what happens is that the victims in most cases refuse to go public with the fight against sexual harassment at their places of employment. I guarantee you, if the matter is taken before the High Court or the Supreme Court, then everyone starting from the company to each and every person responsible for the day to day administration of the company including its HR (Human Resource) department heads will face the wrath of the Courts. For their non compliance of the Visakha case guidelines, not only would have led to the suffering of some innocent person but also would have resulted in an undeniable case of Contempt of Court.
Avinash: Is there any chance of any legislation being drafted in the near future ?
Me: Well, from what I've read, our Parliament has already given its nod on 10th May, 2012 to the Protection of Women from Sexual Harassment at Workplace Bill. I haven't had the opportunity to read the bill. But I hope that its a good bill with a holistic approach, cognizant of the Supreme Court's guidelines, for the protection of women at their workplaces.
Avinash : What advise would you give to my friend ?
Me: Honestly, I will advise your friend to consult a lawyer, only if she is serious to fight against her capricious boss and willing to speak freely about the facts to her lawyer. However, for the time being, in my considered opinion, she should immediately write a letter to the heads of the relevant department of her company informing them about her grievances. She has to be very clear about the whole series of incidents that she has undergone. She should not hide anything. She has to make out in that letter,why she thinks that the actions of her boss amount to sexual harassment at workplace as defined by Supreme Court of India. She has to also point out the sorry state of affairs including the absence of any complaint committee in their company for which she is forced to bring this matter to their notice. This would not only point out to the department heads that she's aware of the law but also remind them of the fact that they have committed contempt of court by not setting up any complaint committee. She should send that letter by registered post - acknowledgment due and keep a copy of the letter as well as the postal receipt. If they ignore her attempt, then ask her to write a reminder, this time stating that unless appropriate actions are not taken to redress her grievances then she'll be forced to move the High Court to enforce her fundamental & constitutional rights (as recognized by the Supreme Court in the Vishakha judgement ) which besides involving penalization of the company will also bring bad publicity for their organization.
Its always advisable to start consulting a lawyer in such matters before taking any step, and if need actually arises to move the Courts, then she may approach a bona fide NGO who'll not only support her financially but also give moral courage, during the legal proceeding.
Ask her to take these steps and let me know if I could be of any other help in this matter.
Avinash: Just curious,...whether a man can be victim of sexual harassment at workplace ?
Me: On a plain reading, I do not find any such indication in the definition given by the Court, which says that only females can be victims of sexual harassment at workplace. Though I'd definitely say that it is primarily for their protection at places of their employment, that these guidelines were drafted. But that does not mean a male victim is remediless. However sometimes the interpretation of a particular law can be tricky. Therefore though this is my personal opinion, the matter may be subject to deeper analysis and interpretation by appropriate authorities. The matter may also considerably change for males, once the Protection of Women from Sexual Harassment at Workplace Bill is enacted into law. For as its name suggests it appears to be focused on women only. Time will tell.
Avinash : Alright. Thank you buddy. I'm off to my friend's house. I'll discuss the strategy with her and her parents.
Me: Good Luck, keep me updated.