The Indian National Bar Association (INBA) conducted a survey on sexual harassment at workplace between April and October 2016 involving around 6,047 participants, both male and female. Most of the respondents were from sectors like IT, media, education, legal, medical and agriculture. Around 38% of the respondents said they faced sexual harassment in the workplace.
The survey revealed that most of the women victims dealt with it on their own instead of lodging a formal complaint with the management. Fear, embarrassment, lack of faith in the redressal mechanism, unawareness, were some of the reasons cited for not reporting to the management. Around 69% of the victims did not complain to the management fearing repercussions or retaliation. What is shocking was that about 65% of the respondents’ confirmed that the company did not follow the process prescribed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
For effective implementation of The Sexual Harassment Act, it requires an employer to set up an Internal Complaints Committee (ICC) at each office or branch having more than 10 employees of any gender. The government is in turn required to set up a Local Complaints Committees (LCC) at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted since the establishment has less than 10 employees or if the complaint is against the employer.
So, it is critical for achieving the objective of the Act that the employer constitute the prescribed committee, the committee members have adequate knowledge and training on the processes to be followed and there must be an environment to create awareness among the workplace members. The survey by INBA revealed that around 67% respondents felt that the internal committees did not deal with the complaint fairly. The survey stated despite provisions under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, 56.7% of the respondents said that the members of the internal committee did not have proper knowledge of the process that needs to be followed.
The findings of the INBA survey can be confirmed with reference to a 2015 EY (Ernst & Young) survey of 120 companies on “Reining in Sexual Harassment at the Workplace”, 18% of the companies surveyed did not set up an ICC. Even out of those who did set up an ICC, 63% of the respondents said their companies had not conducted the ICC training mandated by law. The report said that of those surveyed and without an ICC, 50% were automotive companies and 40% were IT firms.
While we go through the Report of Delhi Commission for Women, published in November 2015 it is observed that 101 sexual harassment complaints were filed in 16 educational institutions with JNU having 50% complaints reported. The commission also noted that the implementation of the Sexual Harassment at the Workplace Act, 2013 was flawed in many of these institutions. “We did not notice a trend where the number of complaints filed over the years have gone up. We also observed the institutions tend to quell the complaints,” said DCW chairperson Swati Maliwal. In the highly publicized case of RK Pachauri at The Energy and Resources Institute (TERI), who sexually harassed several junior women colleagues, the procedure was infuriatingly poorly handled at every level. When the woman executive first complained against Sarna, ex-MD & CEO of Taj Group of Hotels, for instance, an enquiry was not set up though it should have been done immediately. In Pachauri’s case, TERI’s ICC found Pachauri guilty and made recommendations that were not implemented. The Caravan’s cover story (1st July, 2016) Hostile Climate also showed that TERI’s workplace had enabled Pachauri’s behaviour. The sad part is here too the lady victim had to quit; she wrote an open letter in The Caravan of 9th February, 2016 which reads “I spoke up and was quarantined from work. Not allowed to resume work and no earnings for a long time. No money and a tainted Curriculum Vitae gave me sleepless nights.” So, the various cases lead to conclude that the key to effectiveness of the laws framed for prevention of sexual harassment is effective implementation of the law and it begins with the awareness initiatives by the employer, the constitution of committee, acknowledging and investigation into the complaint and redressal.
The Govt. of India Ministry Of Women & Child Development published in November, 2015 a “Handbook on Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 for Employers / Institutions/ Organisations / Internal Complaints Committee / local complaints Committee” – this Handbook is a very well-drafted manual covering the objectives and background of this Act, the important terminology and definitions and a detailed process note and guidelines for the committee members and employers in regard to the do’s and don’ts for conducting the investigation into sexual harassment complaints before them and its reporting and monitoring with reference to globally tested practices. Every establishment should be aware of the content of this Handbook in context of understanding and training on the concerned subject.
Under the law, the employer / District Officer i.e. District magistrate / Additional District Magistrate / Deputy Collector is obliged to create a workplace free of sexual harassment. It is the responsibility of the Employer / District Officer in general to: (i) Create and communicate a detailed policy; (ii) Ensure awareness and orientation on the issue; (iii) Constitute Complaints Committee(s)in every workplace and district so that every working woman is provided with a mechanism for redress of her complaint(s); (iv) Ensure Complaints Committees are trained in both skill and capacity and (v) Prepare an annual report and report to the respective state government.
The Act provides for two kinds of complaints mechanisms: Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All Complaints Committees must have 50% representation of women. ICC or LCC members will hold their position not exceeding three years from the date of their nomination or appointment.
The failure to constitute an ICC is viewed very seriously and the Employer is liable to penalty. In the case Ms. G Vs. ISG Novasoft Technologies Ltd. in September, 2014 the Madras High Court awarded Rs. 1.68 crores in damages to an employee for the nonconstitution of a Complaints Committee by the employer, as per the Vishakha Guidelines (at the time of the complaint, the Sexual Harassment of Women at Workplace Act 2013 had not been enacted). As per Sec. 26 of the Act the employer “… shall be punishable with fine which may extend to fifty thousand rupees”.
The District Officer (i.e. the District Magistrate / Additional District Magistrate / Deputy Collector) will constitute an LCC in every district to enable women in the unorganised sector or small establishments to work in an environment free of sexual harassment. The LCC will receive complaints from: (i) women working in an organisation having less than 10 workers; (ii) when the complaint is against the employer himself or (iii) from domestic workers.
The Act refers to external members, which generally means persons having expertise in the issue of sexual harassment. Given the largely intangible nature of workplace sexual harassment, there are a range of complexities involved in responding effectively to such complaints. For this reason, external third party/members on the Complaints Committee(s) (from civil society or legal background) should possess the following attributes:
The Sexual Harassment Act, 2013 sets out the process to be followed for making a complaint and inquiring into the complaint in a time bound manner. On December 28, 2016, the Department of Personnel and Training (DoPT) issued fresh guidelines about sexual harassment of women at the workplace. According to these, enquiries into sexual harassment complaints must be completed in 30 days, and all departments and ministries are required to submit a monthly report on each of these complaints to the Ministry of Women and Child Development so that their progress can be monitored.
To make the process effective, the Committee members must equip themselves with the knowledge of the act and their responsibilities vis-a-vis the rights of the complainant and the respondent. The Complainant has got the right to an environment where she can fearlessly make her statement which must be dealt with in confidentiality and she is expected to have an empathetic approach from the committee while they deal with the complaint. Similarly, the respondent has a right to impartial hearing, confidentiality and appeal.
A Complaints Committee(s) is required to be trained in both skill and capacity to carry out a fair and informed inquiry into a complaint of workplace sexual harassment. As per EY survey “Reining in Sexual Harassment at the Workplace in India”, the challenges in a sexual harassment investigation is enumerated as:
On completion of the investigation, the Committee members will recommend suitable action within the policy and rules or no action if the findings so merit. The Committee should present the report with all fairness, details and substantiate with documents and findings during investigation.
The Report must be submitted within the stipulated 90 days’ period. The employer is required to monitor the timely submission of reports by the ICC. In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter-alia;
The National Commission for Women recommended publicizing committee using posters, etc. and explicitly mention the contact details of the members. The commission also highlighted the need for orientation programs for employees to sensitize them on sexual harassment. Another recommendation was to enhance communication strategies to combat violation against women.
These measures could be reason behind the increase in number of the cases of sexual harassment being reported of late. The statement made by Mr. T K Srirang, HR Head of ICICI Bank in the Times of India, 7th September, 2017 “Today, greater awareness is encouraging corporations to report all such cases. Sometimes the numbers may appear to be relatively high compared to industry peers, but that only means that the corporation has instituted a strong culture where people are free to report all cases, no matter how minor they may appear to be.”
Srirang said although the bank would like the numbers to come down, this should not be at the cost of colleagues under-reporting such incidences. “When new hires walk into ICICI Bank, we train them on what is acceptable and what is not. Our employees have the confidence that any issue that they bring to our attention will be dealt with utmost diligence and confidentiality.” The progressive approach taken by Infosys can be noted in the statement from Richard Lobo, executive VP and HR head, Infosys, “… an increase in the number of reported cases on sexual harassment is an indication that its employees trust the company’s process to do the right thing and address their concerns.”
We can hope that once the prescribed measures are stringently imposed by a proactive committee constituted of members with a broad mindset in all organisations, big and small, across the nation, women shall be able to reach their full potential unhindered
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