The act of sexual harassment is a violation of a woman’s human rights and fundamental rights, which are granted to her under Articles 14 and 15 as the Right to Equality and under Article 21 as the Right to Dignity of Life. To provide protection to women against sexual harassment in the workplace and to prohibit, prevent, and redress complaints of sexual harassment, the Government of India has enacted the ‘Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redress) Act, 2013’ which has come into force with effect from December 9, 2013. Let us have a look at how to file a complaint for sexual harassment in the workplace.
Definition of sexual harassment of women in the workplace
One of the difficulties in understanding this concept is that it involves a range of behaviors, even victims have difficulty explaining what they have experienced. There are efforts at both national and international levels, but there is still no single definition that can define prohibited conduct.
“Unwelcome sexual favors and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment”
The Supreme Court of India has defined sexual harassment as any unwelcome sexually determined conduct (either directly or by implication) such as;
- Physical contact and advances,
- Asking or asking for a sexual favor,
- Sexually tinged remarks,
- Displaying pornography,
- Any other unwelcome physical, verbal, or non-verbal behavior of a sexual nature.
The unwelcome or uninvited conduct/act is strictly prohibited. A sexual or romantic interaction between consenting people at work may be offensive to observers or may also lead to violations of workplace policies, but is not sexual harassment.
What is included in the term “sexual harassment”?
“Sexual harassment” includes one or more of the following unwelcome acts or conduct-
- physical contact and advances, or
- requests for sexual favors, or
- sexually suggestive remarks or showing pornography, or
- any unwelcome verbal or non-verbal or physical conduct of a sexual nature, or
- an implied or express promise of preferential treatment in her employment, or
- an implied or express threat of prejudicial treatment in her employment, or
- an implied or express threat to her current or future employment status, or
- interference with her work or the creation of an intimidating or abusive or hostile work environment for her, or
- degrading treatment that could affect her health or safety.
What is a Local Complaints Committee (LCC)?
The District Officer notified by the Government under this Act shall constitute a Local Complaints Committee (LCC) to hear and redress complaints/grievances related to sexual harassment from the unorganized sector or from organizations where an Internal Complaints Committee (ICC) has not been established as these have less than 10 employees or if the complaint is directed at the employer. LCC is a 5-member committee chaired by a prominent woman who knows social work, 1 member from among the women workers in the block, taluka or tehsil or ward, or village in the district, and 1 member will be the concerned social welfare or women development officer and children must be an ex officio member, at least one of whom must be a woman nominated from non-governmental organizations or associations involved in women’s issues or a person familiar with the issue of sexual harassment, provided that at least one of the nominees should, if possible, have legal knowledge.
What is the Internal Complaints Committee (ICC)?
For hearing and redressal of complaints/grievances related to sexual harassment, every employer of an organization employing 10 or more employees shall establish a committee called the Internal Complaints Committee in each office or branch. The Internal Complaints Commission (ICC) is a 4-member commission chaired by one female leader and 2 staff members with social work experience or legal knowledge and 1 member from an NGO.
Who can file a complaint?
- The complaint must be submitted in writing within 3 months of the incident. In the case of a series of incidents, the report must be prepared within 3 months of the last incident. The deadline can be extended for another three months under applicable circumstances.
- At the request of the complainant, the committee may take steps to mediate conciliation before starting an investigation. A legal heir can file a complaint on behalf of the wife in case of physical/mental incapacity, death, or otherwise.
- The complainant may request a postponement (for herself or the respondent) of 3 months’ leave or other relief during the investigation period.
- The inquiry should end within 90 days from the date of the complaint otherwise it is punishable.
How to file a sexual harassment complaint?
Any aggrieved woman can file a complaint of sexual harassment at the workplace in writing within 3 months from the date of the incident to the Internal Complaints Committee (ICC) / Local Complaints Committee (LCC). These 3 months can be extended by the ICC/LCC for up to another 3 months if there are sufficient reasons for doing so. If the aggrieved woman is unable to file a complaint due to her mental or physical incapacity or death, her legal heir or representative can file a complaint.
- Conciliation: The Internal Grievance Committee or the Local Grievance Committee may, at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation, but no monetary settlement shall be made as the basis of the conciliation. After the conciliation, a record of the settlement will be forwarded to the employer or the District Officer, as the case may be, the Internal Grievance Committee or the Local Grievance Committee, and copies of the settlement will be provided to the aggrieved woman and the respondent.
On receipt of the record of settlement, the employer or the District Officer, as the case may be, shall take action as recommended by the ICC/LCC.
- Inquiry of the complaint: If the respondent does not meet the above settlement conditions, the ICC/LCC will proceed to investigate the complaint or refer the complaint to the police. The ICC/LCC is required to complete the inquiry within 90 days. For an inquiry under this Act, the ICC/LCC shall have the same powers as a Civil Court under the Code of Civil Procedure, 1908.
On completion of an inquiry under this Act, the ICC/LCC shall send a report of its findings to the employer or district officer and copies thereof to the aggrieved woman and the respondent. The employer or district official will process this report within 60 days.
Workers’ initiative
Employees should be able to raise issues of sexual harassment at staff meetings and other appropriate forums and should be positively discussed at employer-employee meetings.
- Awareness: Awareness of the rights of female employees in this regard should be created in particular appropriately by prominently mentioning the guidelines (and the relevant legislation, if adopted in this matter).
- Third-Party Harassment: If sexual harassment occurs as a result of the act or omission of any third party or outside person, the employer and the responsible person will take all steps necessary and reasonable to assist the affected person in terms of support and preventive measures.
The Central/State Governments are requested to consider taking appropriate measures including legislation to ensure that the guidelines laid down in this Order are followed by private-sector employers as well. These instructions will not affect any rights available under the Human Rights Act 1993.
Final words
In India, sexual harassment violates the fundamental rights of women under Articles 14 and 21 of the Constitution of India. We now have a special law to curb sexual harassment of women in the workplace that has been debated. Other legislation that seeks to prevent sexual harassment is the Indian Penal Code, the Indecent Representation of Women (Prohibition) Act of 1987, the Industrial Disputes Act of 1947, and the Factories Act of 1948. Consideration should also be given to the protection of human rights of 1993 because women’s rights are also human rights and must be protected at all costs.
In addition to these remedies under the above laws, victims of sexual harassment can go to the civil courts for tortious actions (mental anguish, physical harassment, depression, loss of employment).
