Workplace harassment is demeaning, degrading, or threatening behaviour directed at an individual worker or group of workers. Some of the harassing behaviour could be verbal abuse/displaying violent images/angry outbursts/invading others’ personal space/destruction of property, discrimination, etc.
Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favours Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault.
If you feel that you are being sexually harassed, this article exactly explains all the rules applicable, procedures involved, and remedies allowed.
Since last year, a number of powerful and influential individuals in Indian media have been charged with sexual harassment at work. Because there is frequently a power dynamic at play, sexual harassment at work frequently remains unreported, or because the victims are afraid of losing their jobs or being branded as “difficult employees” if they speak up. Patriarchal society’s influence and social training make it more difficult for victims to open out about such delicate topics. No matter how helpless harassment victims may feel, India’s laws are very specific in offering assistance to anyone who has experienced sexual harassment at work.
It does not matter if the person harassing you thinks it’s OK, innocuous, not sexual, or welcomed (i.e., they think you like it or don’t have a problem with it); sexual harassment only pertains to the person who is being harassed. If the behaviour is something you do not want or find offensive, it is still considered harassment.
Additionally, it still qualifies as harassment if you don’t immediately tell the individual to stop or take another appropriate action when they say or do something that is unacceptable. For instance, you might participate in an unpleasant joke or accept a hug because you were caught off guard or because you were concerned about how the other person might respond if you didn’t. You could be worried that speaking up or saying “no” would affect your work if the harasser is a supervisor or someone else who has more authority than you. These are all common reactions to harassment. By responding in this way, the harassment is not any less serious and you are not any more responsible.
- Section 509, IPC: Word, gesture or act intended to insult the modesty of a woman: Section 509 of the Indian Penal Code 1860 states that “Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, and shall be punished with simple imprisonment for a term which may extend to three years, and also with fine”.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Remedy) Act 2013
- In addition to the above, The Industrial Employment (Standing Orders) Act, 1946 requires an employer to define and publish uniform conditions of employment in the form of standing orders. This Standing Orders Act prescribes model standing orders to be followed where the employer has not drawn up and certified its own standing orders. These orders set out the procedure for investigating and dealing with “misconduct” or any other complaint an employer receives from an employee.
What constitutes as sexual harassment?
According to Sec. 2 (n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, ‘sexual harassment’ includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely –
- Physical contact and advances; or
- Demand or request for sexual favours; or
- Making sexually coloured remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature
What are your rights?
- Work in a safe, discrimination-free environment. Your employer is required by law to provide a safe working environment that is not “hostile” to you based on your sex or gender identity.
- Be told about your company’s sexual harassment policies — including how to report — in a way that you understand.
- Talk about or speak out against sexual harassment, whether it’s happening to you or to someone else. You can talk about sexual harassment or discrimination that’s happening at work to whoever you want, including your co-workers or your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy or practice perpetuates harassment, or a manager is engaging in harassment or discrimination. It is illegal for your employer to retaliate against (punish) you for talking with co-workers about harassment or discrimination.
- Report the harassment to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend reporting in writing (email or letter) and making copies, so you have proof later if you need it. It is important to report harassment internally first if you might want to take legal action later.
- Have your complaint taken seriously and investigated. Legally, your employer must take complaints about sexual harassment seriously and investigate them. As soon as your employer is aware of the sexual harassment, the law requires them to take quick action to stop it, and adequately protect you or the person who’s being harassed.
- Ask your employer what will happen and who will know if you file a complaint. You may want to keep your complaint confidential, but be aware: Investigations usually involve interviewing the harasser, the person complaining about harassment, and other employees as potential witnesses.
- Testify as a witness or participate in an investigation by the Internal Complaints Committee or other statutory agency. Your employer can’t keep you from providing evidence, testifying at a hearing, or communicating with a statutory agency that is looking into sexual harassment or other discrimination at your workplace. Even if the investigation eventually finds that there was no harassment, your participation is still a protected right, meaning your employer can’t retaliate against you (punish you) for cooperating.
- Do nothing. It is a perfectly acceptable choice to do nothing about the sexual harassment or assault you experienced. It is 100% your decision whether or not to come forward about your experiences due to personal reasons.
If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action. Retaliation includes being fired or demoted, cutting your pay, changing your shifts, hours, benefits, or duties, being asked to take time off, or any other action that has a negative effect on you.
1. Complain to the ICC or the police
Each workplace has an Internal Complaints Committee (ICC) to deal with sexual harassment complaints. If you want to complain to the ICC, you must do so within three months of the last act of sexual harassment you faced. You must submit copies of your complaint, supporting documents, and the names and addresses of your witnesses. You can also file an FIR at the local police station or file a private complaint with the magistrate, which will result in a stricter punishment for your harasser.
If your complaint against your harasser is proven, you are entitled to compensation from them. The amount of compensation is decided based on several factors such as the emotional distress you have experienced, loss of job opportunities due to harassment, your financial situation, etc.
For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee, or the Local Committee, as the case may be, shall have regard to:
a) The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman.
b) The loss in the career opportunity due to the incident of sexual harassment.
c) Medical expenses incurred by the victim for physical or psychiatric treatment.
d) The income and financial status of the respondent.
e) Feasibility of such payment in lump sum or in instalments.
If you believe financial compensation is not enough then please file a criminal case against your harasser (under the IPC Sec 354A) and action will be taken against the accused, which could lead to imprisonment.
3. Changes in the work environment/protection in the work environment
After your sexual harassment complaint has been filed, you can send the ICC a written request to: Stop the harasser from reporting on your work performance; Restrict the harasser from monitoring you if you are in an educational institution; Request transfer of yourself or the harasser to work in a safe space; Request for 3 months of paid vacation, in addition to the vacation you already have.
4. Privacy during proceedings
The Act provides a framework where your privacy is protected during and after ICC proceedings by penalizing those who disclose the content of your complaint, your identity or address, information about any inquiry by the ICC, any action taken by the employer and any advice or details provided ICC.
You have the right to appeal within 90 days to the authority listed in your workplace regulations or to the Local Complaints Committee (LCC). If you do not have an LCC in your district, you can go to court with the help of a lawyer.
You can also give a complaint to your HR under the Sexual Harassment at Workplace Act, against your boss if there are privacy concerns. If no action is taken then you can also file an FIR under section 509 IPC, at your local police station.
It is important that the sexual harassment case should be filed within three months with the ICC or LCCC and filing an internal complaint can be preferred if privacy is your concern and it is your right that the information is not public if filed internally.
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