Sexual Harassment at the Workplace
by Ms Meenakshi Arora
The second session for the day was on 'Sexual harassment at the Workplace'. The session was conducted by Ms Meenakshi Arora, Supreme Court Advocate who also assisted in the 'Vishakha & others vs. State of Rajasthan & others case' of 1992. This case was a precursor to the exhaustive set of Supreme Court Guidelines and Norms against sexual harassment at the workplace.
A writ petition was filed for the enforcement of the fundamental rights of working women under Article 14, 19 and 21. It was brought as a class action by certain social activists and NGOs with the aim of assisting in finding suitable methods for the realization of the true concept of "gender equality" and to prevent the sexual harassment of working women at all workplaces through judicial process.
The immediate cause for the filing of the writ petition was an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. The incident revealed the hazards to which working women may be exposed and the depravity to which sexual harassment can degenerate and the urgency for safeguards by an alternative mechanism, in the absence of legislative measures.
In 1997 the Supreme Court came up with a set of guidelines against sexual harassment at the workplace. The guidelines emphasized that it is the duty of the employer to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the settlement or prosecution of acts of sexual harassment by taking all steps required. For this purpose sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The guidelines have been broadly classified under preventive measures and coping measures. As part of preventive steps the guidelines include :
- Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.
- 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.
- As regards private employers steps should be taken to include aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act 1946.
- 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 the workplace.
The guidelines as a part of the coping measures include:
- Appropriate disciplinary action should be initiated against the guilty in accordance with the service rules.
- The complaint mechanism should ensure time bound treatment of complaints and should be adequate to provide where necessary a Complaint Committee, a special counselor or other support service, including the maintenance of confidentiality.
- The Complaint Committee should be headed by a woman and not less than half of its members should be women. Further to prevent the possibility of any undue pressure or influence from senior levels, such committee should involve a third party, either NGOs or other body who is familiar with the issue of sexual harassment.
- Employees should be allowed to raise issues of sexual harassment at workers' meeting and in other appropriate forums and it should be affirmatively discussed in employer-employee meetings.
- Where sexual harassment occurs as a result of an act or omission by any third party or an outsider, the employer will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
DISCUSSION:
The following issues were deliberated upon as a part of open discussion in the second session: -
- In case if the incident of sexual harassment is reported within an NGO itself, the employer can co-opt an independent member from other NGOs on its Complaint Committee.
- The criteria to select the third party on the Complaint Committee would include: the members from that particular NGO must be familiar with the issue of sexual harassment; if the concerned person has been on such a panel in the past; if the concerned person has worked and taught on the issues related to sexual harassment at the workplace.
- Organizations small in size and not having the personnel department can appoint a nodal person to receive complaints regarding sexual harassment. Such an organization can constitute a Complaint Committee in accordance with the Supreme Court guidelines as and when the need arises.
- In case if the perpetrator happens to be the factory owner himself, the victim can go to the court, National Human Rights Commission or National Commission for Women. Also in case of the unorganized sector the victim can seek help from the aforementioned sources.
- Ms Arora particularly emphasized that there is a strong need on the part of the NGOs to work towards training a set of their members in the expertise of conducting inquires related to sexual harassment.
- The best practices to generate awareness on the issue in companies would include humorous messages, caricatures, set up the Do's and Don'ts along with the penalties, inclusion of the guidelines as a part of Service Rules under Misconduct.
