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Sexual harassment at workplace (Prevention, Prohibition and Redressal) Act 2013- Critical Review

Sexual harassment at workplace (Prevention, Prohibition and Redressal) Act 2013 with critical review of the act

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Sexual harassment at workplace (Prevention, Prohibition and Redressal) Act 2013- Critical Review

  1. 1. Democracies with high levels of violence against women are as insecure and unstable as Non-democracies. Whether a country is a democracy or not, is irrelevant.
  2. 2.  So true! In most countries in the world, there is no physical security of women only because they are women.  You will not call a place a home if you do not feel safe and secure.
  3. 3.  A country is not your country if most people, belonging to it, believe that it is OK to oppress you because your genital organs are not the right organs.  Most women in this patriarchal world are homeless.  They, in true sense, have no country.
  4. 4.  Problem statement  Definition  Types  Identifying sexual harassment  Causes  Consequences  How to stop Sexual Harassment?  Legislations  Steps to file a complaint  Conclusion  Journey ahead
  5. 5. One rape every 29minutes One Woman is molested every 26minutes One Crime against Woman every 3minutes
  6. 6.  66 of the 400 respondents faced a cumulative of 121 incidents of sexual harassment.  About 102 of the 121 incidents were reported to be non- physical, whereas the remaining 19 incidents were physical  "While 87% of the general population and 93% of working women respondents reported awareness of sexual harassment of women at workplace, a majority of the victims didn't resort to any formal action against the perpetrators.”
  7. 7.  “The top three industries unsafe for women are labourers (29%), domestic help (23%) and small-scale manufacturing units(16%).“  Also, 26% of working women reported to be the sole earning members of their families, indicating that economic vulnerability renders them further vulnerable to harassment.
  8. 8.  Sexual harassment against women is widely recognized as an important public health problem, owing to its substantial consequences on women's physical, mental , social and reproductive health.
  9. 9.  Unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.
  10. 10.  Conduct is NOT sexual harassment if it is welcomed.  For this reason, it is important to communicate (either verbally or in writing) to the harasser that the conduct makes you uncomfortable and you want it to stop.
  11. 11.  Verbal/Written:  Comments about clothing, person’s body  Sex-based jokes  Requesting sexual favors  Repeatedly asking a person out  Telling rumors about a person’s personal or sexual life  Threatening a person  Sending email, sms of a sexual nature  Physical:  Assault, Impeding or blocking movement  Inappropriately touching a person or a person’s clothing  Kissing, hugging, patting, stroking
  12. 12.  Nonverbal:  Looking up and down a person’s body (“elevator eyes”);  Derogatory gestures or facial expressions of a sexual nature  Following a person  Visual:  Posters, drawings, pictures, screensavers, emails of a sexual nature
  13. 13.  A single unwanted request for a date or one sexually suggestive comment might offend and be inappropriate, but it may not be sexual harassment.  However, a no. of relatively minor separate incidents may add up to sexual harassment if the incidents affect the work environment.
  14. 14.  The conduct unreasonably interferes with the work performance or creates an “intimidating, hostile, or offensive work environment.”  E.g. Repeated sexual comments makes someone so uncomfortable at work that his/her performance suffers or he/she declines professional opportunities because it will put in contact with the harasser.
  15. 15.  How many times did the incidents occur?  How long has the harassment been going on?  How many others have been sexually harassed?  Who were witnesses to the harassment?
  16. 16. Some Relationships in which Sexual Harassment can occur: YOU STRANGERS CO-WORKERS BOSS
  17. 17.  Quid Pro Quo  Hostile Environment  Non Employee  Third Party
  18. 18.  Quid Pro Quo (“This for that”) A person in a position of authority, typically a supervisor, demands sexual favors as a condition to getting or keeping a job benefit.
  19. 19.  A single, severe incident, such as a sexual assault, could create a hostile environment.  More commonly, by a series of incidents.
  20. 20. Courts are likely to find an illegal hostile work environment where there is: Pornography Vulgar Language SexualTouching Degrading Comments Embarrassing Questions Sexual Jokes Sexual Propositions
  21. 21. Sexual harassment by a non-employee, e.g. Vendors, Customers orVisitors Is a NOT excusable behavior. Harassment by a non-employee CAN lead to sexual harassment charges, just as sexual harassment by an employee would.
  22. 22. Behavior not found offensive by some employees can facilitate an offensive environment for other employees.
  23. 23.  A stray remark  An overly sensitive employee  Consensual relationships
  24. 24. 1) Socialisation: The way in which men and women were brought up to see themselves and others strongly influences their behaviour. 2) Power games: Some men feel threatened by the career advancement of women. Other men who have recently gained positions of power may also try to prove themselves by harassing women subordinates. 3) Moral values, divorce, disputed marriages and cultural differences: In times of moral laxity, when extra-marital affairs and "one-night stands" are broadly accepted, when some people equate monogamy with monotony, it is relatively easy for people to indulge in office flirtations, whether one-sided or mutual
  25. 25. 4) Credibility and victim-blaming: Management may take the word of a senior person rather than that of a subordinate, particularly if the managers concerned are all men. The common tendency of victim-blaming often causes the plaintiff to end up virtually as the accused. We should heed the saying: 5) Aggressiveness or bravado: Men in groups often behave differently from how they would as individuals. "gang harassment" 6) Lack of company policy "However I dress, wherever I go, My yes isYes, and my no is No"
  26. 26. Sexual Harassment Cost to companies Legal cost Personal Cost
  27. 27.  By reducing productivity, morale and motivation  Companies may lose valuable staff- prefer to resign than to confront  High absenteeism  Undermine ethical standards and discipline in the organisation in general  Company's image among its staff, customers and the general public also suffer. Cost to companies
  28. 28.  Leads to both criminal action and civil claims.  Penalty to employer in case of lack of company policy against harassment  Undermines their self-confidence, personal effectiveness, trust in men and people in authority  Serious psychological damage  Difficulty in finding another job, can disrupt entire life Legal cost Personal Cost
  29. 29. We spend a significant amount of time in OUR workplace. Many of our jobs are already stressful without the added stress of harassment. What you allow, is what will continue
  30. 30. Stop harassment before it starts.
  31. 31. How do WE stop disrespectful behaviour?
  32. 32. S T O P
  33. 33. Source T O P The source of the disrespectful behavior has the responsibility to stop behaving in such a manner. What about US. Are we part of the problem? Have we added to the disrespectful behavior?
  34. 34. S Target O P The target must help confront the Harassment/harasser! If we are offended by other’s actions or words, we need to let them know and ask them to stop.
  35. 35. S Target O P Consider this: How can this person correct his or her behavior if he or she is unaware of its impact? The source of the disrespectful behavior may not even know that his or her behavior is offensive to us.
  36. 36. S T Observer P Those who observe disrespectful or harassing behavior have a responsibility to stop it when it occurs; and one who notices such is NEVER an innocent bystander! It is simply the right thing to do.
  37. 37. S T O Person in authority Every person in authority has a duty to keep the workplace free from offensive and harassing behavior. Each person in authority is crucial to creating a respectful workplace.
  38. 38. Source Target Observer Person in authority
  39. 39. Have the Power to empower yourself
  40. 40.  Before 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section294, 354 and 509 of the Indian Penal Code  These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer.
  41. 41. Vishaka Guidelines 1997
  42. 42.  The Supreme Court in Vishaka vs State of Rajasthan(1997) for the first time recognized, acknowledged & explicitly defined sexual harassment as an – Unwelcome sexual gesture or behaviour aimed or having a tendency to outrage the modesty of woman directly or indirectly.
  43. 43.  Brings in its purview all employers in organized and unorganized sectors by holding them responsible for providing safe work environment for women.  Applies to all women whether students, working part time or full time, on contract or involuntary/honorary capacity.
  44. 44.  Coordinator of Aalochana, a centre for documentation and research on women and other women’s rights groups, together with others, petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that : Vishaka Guidelines were not being effectively implemented.
  45. 45.  The Apex Court went on to note that some states appeared not to have implemented earlier Court decisions which had required them to make their legislation compliant with the Vishaka Guidelines. Lacunas inVishaka Guidelines
  47. 47.  On 22rd April 2013, the legislature finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at workplace.  The Act has in fact sought to widen the scope by bringing within its ambit (amongst other things) a “domestic worker”  (defined to mean a woman who is employed to do the household work for remuneration whether in cash or kind, on a temporary, permanent, part time or full time basis. E.g. Housemaids)
  48. 48.  The Act has defined “SEXUAL HARASSMENT” to include the following unwelcome acts or behaviour (whether directly or by implication) namely:  physical contact and advances;  a demand or request for sexual favours;  making sexually coloured remarks;  showing pornography; or  any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
  49. 49.  Further, the following may also amount to sexual harassment:  implied or explicit ▪ promise of preferential treatment; ▪ threat of detrimental treatment; ▪ threat about present or future employment status;  interference with work or creating an intimidating or offensive or hostile work environment; or  humiliating treatment likely to affect health or safety.
  50. 50.  In relation to a workplace  a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;  In relation to a dwelling place or house  a woman of any age who is employed in such a dwelling place or house.
  51. 51.  The act covers all women - in the organized or unorganized sectors - public or private - clients, customers and domestic workers  Irrespective of their age or employment status
  52. 52.  Organizations, departments, institutions, office, branch unit etc. in the public/private sector, both organized and unorganized  Hospitals, nursing homes, educational institutions, sports institutes, stadiums
  53. 53.  NGOs, trusts, cooperative societies , service providers  Any place visited by the employee in the course of employment including transportation  A dwelling place or a house
  54. 54.  The head or the person responsible for formulation & administration of policies of the workplace  The person discharging contractual obligations with respect to his/her employees  For a domestic worker, the person who benefits from that employment
  55. 55.  Regular/temporary/ad-hoc/ daily wage employees  Volunteers, contractual worker, probationer trainee, apprentice etc
  56. 56.  A Internal Complaints Committee (ICC) To be formed by every employer at workplace Local Complaints Committee (LCC) To be formed by every District Officer District Officer District Magistrate/ Add. District Magistrate/ Collector/ Deputy Collector
  57. 57. PRESIDING OFFICER :- Woman employed at a Senior Level at Workplace; If not Available then- nominated from other Offices or Administrative Units of the Workplace 2 MEMBERS AMONGST EMPLOYEES:- Committed to the cause ofWomen OR Experience in Social Work 1 MEMBER FROM NGO or ASSOCIATIONS Committed to cause ofWomen. MEMBERS OF THE ICC ONE- HALF of the Total Members Nominated shall be WOMEN TENURE: Not Exceeding 3 YEARS Workplace with ≥10 employees
  58. 58. CHAIRPERSON Eminent woman in the field of social work ≥ 2 MEMBERS 1 from NGO or association working for social cause At least 1 Member with legal knowledge At least 1 Member belong to SC/ST/OBC/Minority 1 MEMBER Woman working in the block MEMBERS OF THE LCC ONE- HALF of the Total Members Nominated shall be WOMEN TENURE: Not Exceeding 3 YEARS Workplace with < 10 employees Domestic Worker Complaint against employer
  59. 59.  The Committees shall have the same powers as are vested in a civil court when trying a suit in respect of the following matters:  Summoning and enforcing the attendance of any person and examining him on oath;  Requiring the discovery and production of documents; and  Any other matter which may be prescribed.
  60. 60. Step I  May be extended for 3 months if: - Woman was prevented from filing the complaint on account of certain circumstances.  If unable to make a complaint on account of her physical or mental incapacity or death, her legal heirs may do so. Complaint to be made in writing within 3 months
  61. 61. Step I 6 copies of complaints with supporting documents Send one copy to respondent within 7 days to get a reply Respondent to file his reply within 10 days
  62. 62. Step II Provision for Conciliation  ICC/LCC can take steps to settle the matter between the aggrieved woman & the respondent.  Only at the request of the woman  Monetary settlement shall not be the basis of conciliation. 73
  63. 63. Step II  If settlement is not reached, inquiry is initiated.  The ICC or LCC must proceed to make an inquiry in accordance with the rules applicable to the respondent  In case of a complaint by a domestic worker, if a prima facie criminal case exists, the LCC is required to forward the complaint within 7 days to the police to register a case under relevant provisions of the IPC.
  64. 64. This Law Provides a Civil Remedy If the Harassment is Criminal, File a Complaint with the Police for action under IPC 354 /509
  65. 65. Step III  At least 3 members of committee should be present  On completion of inquiry, the committee shall provide report of its findings to the Employer or District officer within 10 days (whether allegation proved or not) Inquiry to be completed within 90 days.
  66. 66. Step III  During the pendency of inquiry, on a written request by the aggrieved women, employer may be required to:  Transfer the woman or the respondent to any other workplace  Grant leave to the woman of upto three months  Grant such other relief to the woman as may be prescribed.
  67. 67. Step IV  If the allegations against the respondent are proven:  Take action for sexual harassment as a misconduct in accordance with the provisions of the applicable rules  To deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.
  68. 68. On Arriving at the Amount to be Paid The complaints committee should consider the following factors: • Trauma, pain or distress caused • Loss of career opportunity due to the incident • Medical expenses incurred • Income of the respondent • Feasibility of such payment in lump sum or installments
  69. 69. If No Rules on Punishment Framed  If the institution has not framed its own rules for punishment, the complaint committee can recommend an appropriate punishment  Can be a written apology, a warning, withholding of promotion/ pay rise/ increments, termination from service, subjecting to counseling or forcing to do community service.
  70. 70. Step IV  Appeal to the Court orTribunal within 90 days of the recommendations if:  Aggrieved from the recommendations  Non-implementation of such recommendations  The employer to act on recommendations within 60 days.
  71. 71. StepV  Annual Report  No. of cases  Actions taken on the cases  Activities conducted during the year
  72. 72.  If malicious or false complaint has been made, a penalty be levied on the complainant in accordance with the applicable service rules.  Mere inability to substantiate a complaint will not attract action under this provision.  The malicious intent or falsehood on part of the complainant must be established after a proper inquiry before any action is recommended.
  73. 73.  If fails to comply with the provisions of the Act, liable to be punished with a fine which may extend up to Rs. 50,000.  In case of a subsequent conviction under this Act, may be punished with twice the punishment prescribed or by cancellation of his licence or withdrawal of his registration.
  74. 74.  Prohibits disclosure of the identity & address of the aggrieved woman, respondent and the witness  Anyone who discloses will be liable to pay a penalty of Rs 5,000  But information regarding the justice secured to any victim, without disclosing the identity, can be publicised
  75. 75.  The complaints committee can terminate the inquiry proceedings or give an ex-parte decision:  if the complainant or the respondent fails, without sufficient cause, to present herself or himself for three consecutive hearings  Ex-parte or termination order will not be passed without giving the complainant/ respondent a 15-day notice in writing
  76. 76.  A clear policy from management.  Awareness of the problem, and of own, and others' rights.  Complaints and disciplinary procedure.  Other supporting measures.
  77. 77.  The law makes sexual harassment at workplace a legal wrong  It aims at man-woman harmony at work place  It aims to build up confidence amongst female employees to stand up against harassment  It makes the employer duty-bound to ensure a harassment-free atmosphere for woman to enhance work productivity
  78. 78.  Thus, the resolution largely depends on robust internal systems, privacy and the ability to safeguard the reputations of the aggrieved, the accused and the organisation.  A fair and neutral investigation system, the right and opportunity to express, better and equitable work conditions and suggested exceptions, as the case might be, are other important components of a robust system.
  79. 79.  The resentment towards incidents of sexual harassment is also increasing.  Perhaps this legislation will help the silenced voice of women audible by taking off the feet that coerce women’s necks.  However, looking at the rising number of reported complaints of sexual harassment it is evident that the new law has at least served to improve awareness about the obligations of employers and rights of employees in case of workplace sexual harassment
  80. 80. Care aboutWHAT you say… HOW you say it-- Before you say it!
  81. 81. 11 May, 2014