Sexual harassment is violent and abusive to a woman which restricts her to live her life with dignity. It extends to the immoral behaviour portrayed towards a woman. A woman who comes across such violent and immoral behaviour at any kind of workplace must be providedwith safe and secured environment and redressal mechanism to address such unethical behaviour. Since, sexual harassment is in violation against women with respect to Articles 14, 15 and 21 of the Constitution of India, the Parliament has enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013.

Is there any mandate?

Yes, all workplaces in India are required to provide a safe and secure working environment for women, which is free from sexual harassment.

Is there any definition of sexual harassment?

Yes, the Hon’ble Supreme Court in its landmark judgment, Vishaka vs. State of Rajasthan (1997) created and stated legally binding guidelines which were based on the right to equality and dignity enshrined under the Constitution of India. It includes the definition of sexual harassment which covers any unwelcome, sexually determined physical, verbal or non-verbal conduct. For instance, any demand for sexual favours from a woman, sexually suggestive remarks about woman and sexually offensive visuals in the workplace.

Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 defines “sexual harassment“. “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

1. Physical contact and advances; or
2. A demand or request for sexual favours; or
3. Making sexually coloured remarks; or
4. Showing pornography; or
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

The Act also includes certain situations where an employer who has created a difficult environment for an employee to work as a result of threats of unacceptable and bad employment decisions hampering her working life. It is also pertinent to mention that workplace sexual harassment is sexual, unwelcome and the experience is subjective. It is the impact and not the intent that matters and it almost always occurs in a matrix of power. It is possible that a woman may experience a single instance of sexual harassment or a series of incidents over a period of time.

Illustration:

Meena, an employee at ABC co., is a hardworking, dedicated and wise employee of the company.

Due to the requirement of the work, one evening Meena stays late in the office with her colleague Sunil in order to finish an urgent presentation. During the course of work, they have dinner together and subsequently, after the work is completed Sunil drops Meena at her home where Sunil proposes Meena for a date and Meena politely refuses to it. Ever since, Sunil has tried pestering Meena to accept her proposal on several occasions to which Meena firmly rejects upfront. Sunil starts intimidating Meena that if she refuses to go on a date with him, consequently, he will smear her character in the office.

In the above scenario, when Meena refused to go on a date with Sunil and Sunil still kept approaching her with the intention to threaten her, is an example of sexual harassment at workplace.

Who is an aggrieved woman?

Section 2(a) of the POSH Act defines an aggrieved woman. An “aggrieved woman” means:

1. 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;
2. in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.

What is a workplace?

A workplace includes all sectors of employment i.e., organised as well as unorganised sectors. Section 2(o) of the POSH Act defines “workplace”. It includes all public sector/Government corporations/undertakings as well as all private organisations/undertakings/ventures such as enterprise, institution, establishment, society, trust, non-government organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertain mental, industrial, health services or financial activities including production, sale, supply, distribution or service, hospitals, nursing homes, any sports institute, stadium, sports complex, any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey, a dwelling place or house, etc.

Compliance under the POSH Act

1. An enterprise/institution/undertaking/corporation/company which employs more than ten workers shall be required to constitute an Internal Complaints Committee at workplace. It is also provided that where the offices or administrative units of the enterprise or workplace are located at different places then the Internal Committee shall be constituted at all administrative units or offices.
2. The Internal Committee shall consist of a Presiding Officer who shall be a senior level woman employee, at least two members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and one external member from a non-governmental organisation or a social worker with at least five years’ experience in the field of social work particularly in addressing workplace sexual harassment or a person who is familiar with labour, service, civil or criminal law.
3. The Internal Committee shall submit an annual report to the District Officer having the jurisdiction.
4. In case of failure in non-compliance to constitute an Internal Committee, the employer in a workplace shall be punishable with fine which may extend to fifty thousand rupees.
5. In pursuance of the above compliance, an employer should make arrangements for imparting training, skills to the members of Internal Committee, employees and managers of the company to handle the situation of sexual harassment at workplace.
6. In addition to the above, an employer should also take measures to prevent sexual harassment at workplace by preparing a draft policy against sexual harassment at workplace and placing the same at a conspicuous place in the organisation. Moreover, the draft policy may also be circulated for the knowledge of each and every employee, trainee, apprentice, intern, probationer, etc of the company.

Compliance under the Company (Accounts) Amendment Rules, 2018 with respect to POSH Act

1. A company which employs more than ten employees shall be required to submit a statement that the company has complied with the provisions relating to the constitution of Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.This will be in addition to the Annual Report that companies have to file as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to the District Officer.
2. As per the notification in the official gazette dated 31^st July, 2018 the aforesaid provisions became effective immediately i.e., on 31^st July, 2018.
3. Non-compliance to constitute the Internal Complaints Committee could lead to imposition of a fine on the Company which is not less than Rs. 50,000 but which may extend to Rs. 25 Lakhs and imprisonment of every officer of the Company for a term which may extend to 3 years or fine in the range of Rs. 50,000 to Rs. 5 Lakhs.