#MeToo, now what? Legal recourse in the face of Sexual Harassment in the workplace

In 2018, countless women came forward to report instances of sexual harassment, especially in their workplaces. They raised their voices against powerful men who misused their power to intimidate them, threaten them, and physically abuse them. #TimesUp, said these women in retaliation, some of who came forward years after the actual incident.

In this post-#MeToo era, it is important for women, young and old, to know their rights in similar situations, and understand the path for recourse and redressal.

We spoke to lawyers Jessica Katyal and Rashi Rajani from Rajani Associates to learn about the various legal provisions that women should become aware about and can choose to seek justice.

What constitutes sexual harassment? How small or big an act does it have to be for sexual harassment?

With growing awareness about the “Me Too” movement, understanding what constitutes as sexual harassment or how big or small the act may be before it can be reported, is a crucial discussion.

Every working woman desires a safe workspace. Unfortunately, inappropriate and unprofessional behaviours are, at times, suppressed and encouraged to be considered bygones.  

Sexual harassment is harassment that is specifically sexual in nature. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides a detailed definition as to what constitutes as sexual harassment.

Section 2(N) of the Act states that one or more of the following unwelcome acts or behaviours (whether directly or by implication) will constitute as sexual harassment:

• physical contact and advances; or
• a 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 a sexual nature.

The Act also takes into consideration other circumstances connected with the primary act of sexual harassment that may amount to sexual harassment. These circumstances include:

• implied or explicit promise of preferential treatment in employment; or
• implied or explicit threat of detrimental treatment in employment; or
• implied or explicit threat about present or future employment status; or
• interference with work or creating an intimidating or offensive or hostile work environment; or
• humiliating treatment likely to affect the lady employee’s health or safety.

The wide definition of sexual harassment covers both implied and direct sexual harassment by way of verbal, physical or written conduct.

Therefore, in addition to the above, to determine what may constitute sexual harassment and how big or small an act should be, one has to take into consideration the impact and the gravity of that situation and what impression that act has had on the victim’s mind. It is also important to remember that each case is unique and should be examined in its own context and according to the surrounding circumstances as a whole.

How does one get to know about an organisation’s policy on sexual harassment? What are the norms? What can be done if the organisation is not following these norms as prescribed?

It is mandatory for every employer having ten or more employees, to comply with, prohibit, prevent and redress sexual harassment in the workplace, within their organisation.  The first step towards achieving a safe and comfortable working environment is to comply with the Act. This can be done by having a sexual harassment policy that provides a detailed framework to prevent and redress any complaints of sexual harassment that may emerge within the organisation. It is also imperative to set up an Internal Complaints Committee (ICC), to address complaints of sexual harassment at the workplace.

The sexual harassment policy of an organization should be made available in a manner such that it is easily accessible for all employees, and is made conspicuous to everyone. Also, it is the responsibility of the employer that at timely intervals the employees including both women and men, should be made aware about the sexual harassment policy that has been framed. Such policy should be effectively communicated to the employees as part of their orientation on inducting any new employees and also special seminars, workshops must be conducted from time to time creating awareness and updating the employees on the matter.

If any employer fails to comply with these norms or any other provisions of the Act or rules made thereunder, the employer shall be punishable with a fine which may extend to fifty thousand rupees and could even lead to the cancellation of their business license or the withdrawal or non-renewal of the registration required to carry on the business by the government or local authority. Repetition of the same offence would result in twice the punishment imposed in the first instance.

What course of action can be expected once a case is reported?

Once a victim reports a case in writing, either directly or indirectly, to the Internal Complaints Committee (“ICC“) or the Local Complaints Committee (“LLC“), as the case may be, the ICC or LCC will, before initiating an enquiry, at the request of the victim, take steps to settle the matter between her and the respondent through conciliation.

In case of a domestic worker, the LCC shall, if prima facie case exists, forward the complaint to the police, within a period of seven days for registering the case under section 509 of the Indian Penal Code (45 of 1860), and any other relevant provision of the said Code where applicable.

If either the ICC or LCC fails to make conciliation, it shall, where the respondent is an employee, proceed to make inquiry into the complaint keeping the principles of natural justice in mind in accordance with the provisions of the service rules applicable to the respondent and where no such rules exist, in such manner as may be prescribed.

The ICC/LCC should forward the complaint letter to the accused within 7 days of receipt of the letter.

Where both the parties are employees, the parties shall be given fair opportunity to be heard and a copy of the findings shall be made available to both the parties enabling them to make representations against the findings before the ICC.

The process of inquiry must be completed within a period of ninety days following which the ICC will submit a report recommending the reliefs or the action to be taken by the employer. The employer or District Officer (“D.O“) has to act upon the recommendation of the ICC within sixty (60) days of its receipt.

During the pendency of the inquiry, the victim can also ask for transfer of the workplace of the respondent or a leave of three months.

Where the allegation against the accused has been proved, the ICC or LCC will recommend to the employer or the D.O. to take action against the sexual harassment:

• as a misconduct in accordance with service rules;
• to deduct an appropriate amount from the salary or wages of the accused;
• if the ICC is unable to make any deduction (or the accused has left the organisation), the ICC may direct the perpetrator to pay a monetary amount to the victim;
• if the perpetrator fails to pay the sum, the ICC or LCC may forward the order for recovery of the sum as an arrear of land revenue to the concerned D.O.

What is ‘hostile environment’ harassment, and how can it be dealt with by an individual?

AThe law describes two different forms of sexual harassment (a) quid pro quo and (b) hostile work environment.

• Quid pro quo

Quid pro quo is Latin for “this for that” or “something for something” and refers to an exchange. It is an exchange between employees, where one is asked to provide sexual favours in exchange for something else, such as favourable treatment in work assignments, pay, or promotion.

• Hostile work environment

The connotation ‘hostile work environment’ has a straight forward meaning where the work environment becomes intimidating, uncomfortable, offensive, inimical and humiliating due to unwelcome sexual conduct. Hostile work environment affects physical and/or mental wellbeing of an employee. For example, if any employee is threatened, interrogated inappropriately, blackmailed, stalked or cornered at work. It also includes sexually explicit talk or emails, sexually provocative images, comments on physical attributes or inappropriate touching.

It is important to be cautious about the work environment. If during the course of employment and while interacting with different people, we learn that there has been an undertone of sexually-coloured remarks like where puns are cracked, there is a hint of flirting in personal text messages or e-mails, then in such situations one must send a strong warning to the perpetrator which will keep them on guard. In case the warning is not good enough then the victim should immediately file a complaint with the ICC or the LLC. In case of situations which deal with sexual harassment at the physical level, one could even learn a few self-defence tricks or carry pepper sprays.

What can an employer do to prevent sexual harassment in the workplace?

With companies focusing on gender diversity at the workplace, creating a comfortable and safe working environment is more of a right than the choice of all employees. Today, with more and more women joining the workforce, companies need to ensure that their establishments are safe so that their female employees feel secure and can work at ease.

Companies cannot turn a blind eye to harassment at the workplace. Such issues are widespread across different levels, sectors and industries, and if not dealt with care, skill and maturity, can have an adverse effect on the reputation and growth of a company.

The employer has the most crucial role to play in the prevention of sexual harassment at the workplace by complying with all the provisions of the Act and helping the aggrieved woman seek redressal. The employer must take the following measures for prevention of sexual harassment at the workplace:

• provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace;
• display at any conspicuous place at the workplace, the penal consequences of sexual harassments and the order constituting the ICC;
• drafting a comprehensive sexual harassment policy that advocates for zero-tolerance attitude towards sexual harassment. The policy must clearly explain aspects like, what amounts to sexual harassment, recourse available to the complainant, etc;
• sexual harassment policy are just words or text on paper but the real challenge is to put it into practice. The employer should create awareness about the sexual harassment policy, the complaint mechanism and the redressal procedure. The employer must conduct regular workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and the orientation programmes for the members of the ICC;
• provide necessary facilitates to the ICC or the LCC for dealing with the complaint and inquiry;
• the employer must ensure that the ICC members are trained in skill and capacity. The ICC members must also to be patient and empathetic when dealing with the victim;
• assist in securing the attendance of respondent and witnesses before the ICC or LCC ;
• make information available to the ICC or LCC, as it may require, having regard to the complaint made;
• provide assistance to the victim, if required, to file a complaint in relation to the offence under the Indian Penal Code;
• initiate action under the Indian Penal Code against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident took place;
• treat sexual harassment as a misconduct under the service rules and initiate action for misconduct;
• monitor timely submission of reports by the ICC.

What are the other forms of harassment that can happen, and how are they dealt with?

Other forms of harassment includes harassment based on race, colour, religion, gender, age, national origin, disability, and genetic information. The same general principles (such as unwelcomeness, severity or pervasiveness, hostile environment) that constitute sexual harassment also apply to other forms of harassment.

Examples of such harassment include:

1. using epithets, slurs, or stereotypes;
2. threatening, intimidating, or engaging in hostile acts that relate to a protected characteristic;
3. offensive jokes or pranks targeted at members of a protected group;
4. placing on walls, bulletin boards or elsewhere on the employer’s premises, or circulating in the workplace by oral, written, electronic or graphic means any material that belittles, mocks or shows hostility toward a person or group because of protected characteristics.
5. the standard for other discriminatory harassment is essentially the same as that for sexual harassment — the harassment must be offensive to a reasonable person in the position of the person being harassed, considering all of the circumstances including that person’s protected characteristic (such as that person’s race, colour, religion, age, sex, national origin, or disability).

How is a sexual harassment panel set up? What are their duties?

Section 4 of the Act provides that the employer is required to set up an ICC at each office or its branch for hearing and redressing the complaints about sexual harassment. The District Officer (DO) constitutes, in the district concerned, a committee to be known as the Local Complaints Committee to receive complaints of sexual harassment from establishment where ICC has not been constituted. This is usually due to having less than 10 workers or where the complaint is against the employer himself. The LCC is also entitled to handle the complaints filed by the employees of the unorganized sector. Further, LCC is entitled to handle the complaint filed against the third party who is not an employee.

The ICC must be presided by a senior female employee of the organisation. Two other employees of the organisation who are committed to the cause of women or who are aware about the issues related to gender or have some legal knowledge must also be appointed as part of the committee. Further, an external member must also be appointed, subject to his/her familiarity with sexual harassment issues or an NGO member who is committed to the cause of women. It must be taken into consideration that the committee must comprise of half of the total members as women.

The major role of the ICC is to create awareness about sexual harassment and to deal with any case of sexual harassment reported to it, conduct fair inquiry and recommend punishment for non-consensual acts of sexual harassment. ICC is expected to be sensitive to the issue and not let personal biases and prejudices (whether based on gender, caste, class) and stereotypes (e.g., predetermined notions of how a “victim” or “accused” should dress up or behave) affect their functioning as members of the committee.

How can I protect myself from future harassment?

As discussed earlier, it is important to be cautious about the work environment and people we work with. If during the course of employment or interacting with people, you learn that there has been an undertone of sexually coloured remarks like where puns are cracked, there is a hint of flirting in personal text messages or e-mails then in such situations one must send a strong warning to the victimizer which will put the victimizer on guard. In case the warning is not good enough then the victim should immediately file a written complaint with the ICC or the LLC. In case of situations which deal with sexual harassment at physical level, one may even learn a few self-defence tricks or carry pepper sprays.

What can I do in the face of threat of harassment? How can I prevent things from going further south?

AIn a situation where a complaint cannot be perceived as a sustainable one, it is important for the harassed woman to maintain distance from the harasser, collect some evidence against the harasser, to help in strengthening the case and its smooth disposal. The victim must not tolerate unwelcome sexual advances and report the same to the ICC. The ICC or the employer is under an obligation to assist the victim to proceed further.

Is there an expiry date on when I can bring up a complaint?

AThe complaint must be filed within a period of 3 months from the date of the incident. In case the complainant is subjected to harassment by series of acts, the complaint must be filed within a period of three months from the last act. The ICC or the LCC can extend the time limit to a maximum of 3 months if it is satisfied that the circumstances were of such a nature that it was not possible for the aggrieved person to file the complaint within the given time frame. The reason for granting such extension must be recorded in writing.

What do I do if I am no longer an employee of the organization where I was sexually harassed, but now want to report it?

Section 2(a)(i) of the Act describes an “aggrieved woman” as someone who was sexually harassed by the respondent at the workplace, whether she is employed there or not.

Therefore, if you are no longer an employee at the organisation where you were sexually harassed, you may still file a complaint against the respondent before the ICC or the LCC, as the case may be, within a period of 3 months from the date of incident.

What do I do if I know about my colleague being harassed but she doesn’t want to report it? I don’t want to break her trust and make things even more stressful for her by reporting it without her consent?

Filing a complaint would be difficult on behalf of your colleague without her consent. According to Rule 6(iii) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, complaint on behalf of the aggrieved party can be filed by the person, who has knowledge of the incident, only after obtaining the written consent of the aggrieved woman. As such, you may obtain consent of the victim and then file a complaint with the ICC or LCC.

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Tejaswi Subramanian is a senior sub editor at Qrius