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Harassment of Women at Working Place

Introduction :

Sexual harassment of women is not a new concept. The offences against women covered board based topics. Sexual harassment is one such form of offence or exploitation where women experience both physical and mental torture. With the women folk entering the labour force the form of harassment has taken a new shape. Women in the workplace experience a wide range of sexual harassment at the hands of their colleagues or superiors. Thus the problem of sexual harassment has become a major social problem now-a-days.

Constitution guarantees equal status to women with men and they also have the right to life and personal liberty. It is also our duty to respect them ad let them live in dignity. but with the process and development of society this evil offence is assuming new dimension with the passing of each day and the menace is on the rise. Today almost all the working women are facing the same problem irrespective of their status, nature of job etc. Examples are may. At many places the working women knowingly or unknowingly become the victim of the offence. In most of the cases the women preferred to remain silent because of their economic needs. This economic dependence of women helps the male who by virtue of their status are placed in a superior position in this patriarchal social order to exploit and harass women. Each such incident results in the violation of the fundamental right of women guaranteed under the Indian Constitution. But no body seems in a position to care and respect this provision and the menace is increasing at an alarming rate despite interference by the Supreme Court. So an in depth study from various angles taking into consideration various aspects is required to counter this gender bias.

What is Sexual Harassment :

There is no specific definition assigned to the term ‘sexual harassment’. When anybody falls in love and it is backed by sexual desire of both the sides it will not amount to sexual harassment but when there is sexual desire or urge by one side and the other side is hesitant towards it, we can term such a situation as sexual offence. This is what ordinarily by sexual offence we mean. In the absence of any specific law on sexual harassment at workplace the Apex Court came forward in its landmark judgment to define sexual harassment in the following words.

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advantages;

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 nature.

Guidelines to Prevent sexual harassment of working women.

1. It should be the duty of the employer or other responsible persons in work place or other institutions of prevent or before the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or the prosecution of acts of sexual harassment by taking all steps required.

2. In pursuance of the guidelines of the Supreme Court, the Odisha Govt. servants conduct rules 1959 have already been amended and a new rule (Rule 1959 4-A prohibition of sexual harassment of working women) has been inserted vide notification No.33648/Gen, dt.08.09.2000.

3. Any act of violation of the above provisions of the Rule 4-A of the Odisha Government Servants Conduct Rules 1959 by any Government servants shall be treated as misconduct and appropriate disciplinary action should be initiated against the delinquent government servants in accordance with the provisions contained in Odisha Civil Service (CCA) Rules, 1962.

4. Whether or not such conduct constitutes of offences under law or a branch of the service Rules an appropriate complaint mechanism should be created in every office for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints whenever such mechanism for redressal of grievance already exists it may be more effective and in particular women officers should preferably handle such complaints.

5. Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines, and norms laid down by the Hon’ble Supreme Court.

6. The above instructions should be brought to the notice of all sub-ordinate offices under their control for strict compliance.

Guidelines issued by Hon’be Apex Court

Apex Court went on to issue certain guidelines to combat sexual harassment at workplace This guidelines are :

1. Duty of the Employer or other responsible persons in work places and other institutions : 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, statement or persecution of acts of sexual harassment by taking all steps required.

2. Definition : For this purpose, sexual harassment includes 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 nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion on when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps : 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 above at the work place should be notified, published and circulated in appropriate ways.

b) 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.

c) 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.

d) 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 reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings: 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.

5. Disciplinary Action: Where such conduct 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.

6. Complaint Mechanism : Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organisation for redressal of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee : The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary a Complaints Committee, a special counsellor 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.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers Initiative : Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness : 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.

10. Third Party Harassment : 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.

After declaring the guidelines the Supreme Court directed to strictly observe the above guidelines in all places of work for the preservation and enforcement of the right to gender equality of the working women and further observed that these directions would be binding and enforceable in law until suitable legislation is enacted.

The Protection Against Sexual Harassment of Women Bill, 2005

It has been said that the sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and when a woman is denied the right to safe environment free from sexual harassment to work, it also violates her right to life and dignity as enshrined in Article 21 of the Constitution of India. As discussed earlier, concerns were raised at the international level, the judiciary has to intervene in the matter to set guidelines and there was huge public outcry against such activities where the dignity of woman is jeopardized. Thus, realizing the grave issue and urgent need to regulate such activities, the Government of India has proposed to bring out a legislation namely “The protection against sexual harassment of Women Bill, 2005″ which seeks to confer upon women the right to protection against sexual harassment and towards that end for the prevention and redressal of sexual harassment of women.

As per the proposal, the Bill is divided into eight chapters spread over 71 sections, besides two schedules. The bill goes on to define so many terms in connection with this law. For this purpose, the term sexual harassment has been defined to mean :

“Sexual harassment includes such unwelcome sexually determined behavior as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and my constitute a health and safety problem, it is discriminatory when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment”.

The explanation appended to this clause said : I is clarified that it is reasonable perception of the woman that would be relevant in determining whether any conduct was sexually coloured and, if so, whether such conduct was unwelcome or not.

The bill also defines the ‘Establishment’ to mean “any venture, organisation or institution carrying on systematic activity by cooperation for the production, supply or distribution of goods and services with a view to satisfy human wants and wishes irrespective of whether it is an ‘industry’ within the meaning of Section 2(j) of the Industrial Disputes Act, 1947 or whether it is performing any inalienable sovereign function and irrespective of whether the goods and services are provided for any remuneration or not”. The illustration appended to this clause goes on to add quite a long list of institutions and organisation to come under the definition of ‘establishment’.

Chapter II of the Bill which is captioned as ‘Right to be free from sexual harassment’ says that the sexual harassment is unlawful and “every woman shall have a right to be free from sexual harassment and the right to work in an environment free from any form or sexual harassment”. Further, the chapter from clauses 4 to 14 goes on to ask the employers and owners of the establishment to see that no sexual harassment takes place in their establishment. Chapter III seeks to constitute “internal complaints committee” which shall be mandatory for every establishment who employs or had employed more than 50 employees in the proceeding 12 months. Further the Bill provides for the appointment of local officers for every district by the appropriate government to deal with complaints arising out of provisions of Section 4 of this Act and for this purpose the Local Officer shall constitute a local complaints committee to be headed by a woman. Further, the Bill also seeks the constitution of ‘Internal Complaints Committee’ by Public Establishment, head of the educational institutions etc. All the statutory bodies are also required to constitute a complaints committee to deal with any complaints of sexual harassment. It is pertinent to note here that as per the provisions of Bill all such complaints committees will be headed by a woman member of the committee.

Chapter IV of the Bill deals with in detail the duties of various authorities under the Act. Thus, the Chapter deals with general duties of an establishment, duties of Local Officers, duties of Local Complaints Committee besides the prohibition of victimisation.

As per the Bill, the general duties of an establishment include to ‘ensure a safe environment free from sexual harassment, to educate all employees through proactive programmes, to undertake workshops and training programmes, prepare and prominently display a policy for the prevention and prohibition of sexual harassment etc. The duties of the Local Officers include to receive complaints under this Act, constitute a local committee by drawing up a list of experts, to pass the orders of the committee to the defendant and complainant and the employer and carry out other functions under the Act. Similarly the duties of the Local Complaints Committee are to promote and facilitate measures for the prevention of the sexual harassment and to carry out a Dispute Resolution Process and bring out a settlement in complaints of sexual harassment. Further the Bill provides that no person shall be victimised for anything said or done in relation to any complaints or proceeding under this Act.

Chapter V of the Bill discusses the procedure for lodging a complaint before the Internal Complaints Committee, Local Officers and the Local Complaints Committee. The complaints may be oral but in certain circumstances written consent of the aggrieved woman has been made mandatory. Chapter VI deals with the procedure in case of misconduct which includes Dispute Resolution prior to enquiry, conduct of enquiry, framing of charge sheet, Rules of Evidence before Complaints Committee, power to issue interim orders, to complete the enquiry within 90 days, findings and directions and the action to be taken after enquiry.

Chapter VII deals with appeals against Decisions/Reports of Complaints Committee and the final chapter i.e. the Chapter VIII covers miscellaneous provisions. While the Schedule I appended to the Bill contains the provisions for the amendment of related a law by inserting provisions for sexual harassment, the Schedule II enumerates a list of employments in the unorganised sector.

The Sexual Harassment of Women at Work Place(Protection, Prohibition and Redressal) Act 2013

Supreme Court Judgment in the case of Vishaka Vs. State of Rajasthan regarding Sexual Harassment of working women

Formation of Complaints Committee to look in to the matter of Sexual Harassment of Women at Work Place.