SEXUAL HARASSMENT OF WOMEN AT THE WORKPLACE (Prevention, Prohibition & Redressal) ACT, 2013
Indian Law on Sexual Harassment The Consti tution of India
1997: Vishaka vs. State of Rajasthan The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
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The Indian Penal Code, 1860
Approach to Judgment - 1997 The Vishaka Practice Supreme Court acknowledged that:
Sexual harassment is a human rights violation Sexual harassment is a violation of constitutionally guaranteed fundamental rights: ● ● ●
Articles 14 and 15: Right to equality Article 21: Right to life - to live with dignity Article 19(1)(g): Right to practice any profession/trade / occupation/business, i.e., a right to a safe environment free from harassment
There is a need for guidelines to fill the legislative vacuum. 4
The Vishaka Judgment Guidelines
Employer’s duty to ●
●
Prevent and prohibit acts of sexual harassment Article 21: Right to life - to live with dignity Redress and resolve grievances pertaining to sexual harassment
The Guidelines: Law, till such time a legislative frame work on the subject is enacted
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The Sexual Harassment of Women at How do we(Prevention, Prohibition and Workplace differentiate? Redressal) Act, 2013  Object: Prevention + Prohibition + Redressal
t u o ab
at h W ? ? e m
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Preamble of the Act
An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
Who Talentis an “Employee”?
EMPLOYEE
Regular, Temporary, Adhoc,
employees
Directly through an agent/contractor With or without remuneration/voluntary. Express/implied terms of employment With or without the knowledge of Employer
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Who is the “Employer�? Employer
Management
Supervision
Control
Person discharging contractual obligations/ Supervises with respect to the employees
Person/board/committee responsible for formulation of policies
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The “workplace� Private sector organisatio ns
Government owned/ controlled establishment s Hospitals/ Nursing homes
Workplac e Dwelling place in case of a domesti c worker 9
Restaurants, Air Crew
Vocational/ Educational Institutions
The extended “workplace” … Any place visited by the employee arising out of; or during the course of; employment, including transportation provided by employer.
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Glossary of Definition
“Aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well. “Respondent”, means a person against whom the aggrieved women who made a compliant “Local Committee”, means the Local Complaints Committee constituted by District Officer under Sec. 6 of the Act. “Internal Committee”, means the Internal Complaints Committee constituted by Employer under Sec. 4 of the Act. “Presiding Officer”, means the Presiding Officer of the Internal Complaints Committee nominated under sub-section (2) of section 4 “District Officer”, means an officer notified under Sec. 5 viz., District Magistrate or Addl. Dist. Magistrate or Collector or Dy. Collector.
“Sexual Harassment� under the new law
Making sexually colored remarks
Physical contact and advances
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Showing pornography Sexual Harassm ent
Unwelcome physical, Verbal or non-verbal conduct of sexual nature, including Text Message
Circumstances - Sexual Harassment Implied/explicit promise of preferential treatment in employment Implied/explicit employment
threat
of
detrimental
treatment
in
Implied/explicit threat about present or future employment status Interference with work or creating an intimidating/hostile environment Humiliating treatment, likely to affect health or safety 12
Internal Complaints Committee - ICC Mandatory for establishments employing 10 or more women employees ICC to be appointed by Employer thro order in writing. At least 50% of the membership of the ICC to be women. ICC to prepare and submit an annual report to the employer and the District Officer.
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Internal Complaints Committee
ICC
Presiding Officer – Senior woman employee from the workplace/other admin units/office/ organisations.
2 Members – Committed to the cause of women/experience in social work/ legal knowledge One member from an NGO/other women’s Organisation/ familiar with issues relating to sexual harassment.
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Local Complaints Committee-LCC To be constituted in every district by District Officer. LCC is the grievance redressal body with respect to: ● ●
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Organisations having less than 10 employees Organisations that have not constituted an ICC
Local Complaints Committee
LCC
Chairperson – Social Worker - Women
One Member – Women – Block/ Taluk/ Tashil/ Ward wise
Other Two Members One member from an NGO - Women
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Eligibility to be Member in Committee – LCC or ICC Eminent women in the field of Social Work. Familiar with issues relating to Sexual Harrassment Background of Law or Legal knolwedge. Tenure of Committees : THREE YEARS
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Grievance Redressal Process Incident of Sexual Harassment
3 months
Beyond 3 months
Reasons for delay to be recorded in writing Beyond 3 months Employee does not request for settlement
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Complaint made to ICC/LCC
Conciliation on Employee request by ICC before No enquiry settlement
INQUIRY
Employee requests for a settlement
Settlement Non monetary; ICC to record settlement and forward to LCC and parties No further inquiry
Grievance Redressal Process
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Committee to complete the inquiry within 90 days.
Report will be sent to the Employer/ District Officer, with in 10 days
Action on the report within 60 days.
Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business
Non-compliance shall be punishable with a fine of up to Rs.50,000.
Penalties have been prescribed for employers.
Complaint Procedure  The aggrieved woman shall make a written complaint of SH to the ICC or LCC as the case may be within three months from the incident.  In case of the complaint not be made in writing the Presiding officer of ICC or Chaiperson of LCC or member of the committee as the case may be shall render assistance to the aggrieved woman to make the complaint.  Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section. 18
Interim Reliefs During the pendency of the enquiry, upon written request by the aggrieved employee: Transfer the aggrieved woman or the respondent to any other workplace. Grant leave to the aggrieved woman up to a period of three months besides her leave eligibility. Grant of relief as may be prescribed
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Factors on Determination of Compensation Mental trauma, pain, suffering, emotional distress caused Loss in career opportunity due to the incident Medical expenses incurred Income/financial status of the respondent Feasibility of such payment in lump sum or in installments
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Employer’s Value Billing Responsiblity Provide a safe working environment Display at the workplace, details of: ●
the penal consequences of indulging in acts of sexual harassment
●
composition of the ICC
●
the grievance redressal mechanism available to aggrieved employees
Organize workshops and awareness programs for sensitizing employees Organizing orientation programs for members of the ICC 20
Employer’s Obligations Cooperate and assist during the course of the inquiry Treat sexual harassment as misconduct under the service rules Provide assistance to the aggrieved employee, should she choose to file a police complaint; Initiate action under the IPC or such other applicable law. Ensure timely submission of reports to the District Officer
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Penalties Failure to constitute an ICC Contravention of any provision under the statute ● ●
Fine of INR 50,000 (approx. US$1,000) Cancellation of business licences
All offences under the statute are non-cognizable
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Provision under The Indian Penal Code Section 509 - Word, gesture or act intended to insult the modesty of a woman Offence:
utterance of any word,
making any sound or gesture
exhibiting any object
With an intention to intrude upon the privacy of such woman Punishment: Simple imprisonment up to 3 years + fine Nature of offence: Cognizable 23
Amendment- Indian Penal Code Provision Section 354 A: Sexual harassment and punishment for sexual harassment Offence: ● physical contact and advances involving unwelcome and explicit sexual overtures; or ● a demand or request for sexual favours; or ● showing pornography against the will of a woman; or ● making sexually coloured remarks Punishment: Commission of an offence under (i), (ii) or (iii) punishable with rigorous imprisonment for a term of up to 3 years and/or fine; commission of offence under (iv) punishable with imprisonment for a term up to one year and/or fine 23
Nature of offence: Cognizable
Limitations No protection for male employees No reference to protection from ‘victimization’ Constitution of ICC for different offices External representation within ICC Timelines may be unrealistic Deterrence due to employer action for false or malicious complaints Ability to deduct from harasser’s salary Absence of monetary liability on the part of the employer No protection from other forms of harassment 24