Tackling sexual harassment in Indian workplaces Tackling sexual harassment in Indian workplaces

Tackling sexual harassment in Indian workplaces
08 Nov 2018

Female sexual harassment at work is all too common. Unfortunately though, the issue not only undermines the confidence of women to work freely, but also has a negative impact on an organisation’s performance and reputation.

So as women’s struggle against sexual misconduct continues to gain momentum in India, helped by the global #MeToo movement, it is vital that employers take a more substantive approach to tackling the problem. So here we look at the country’s legal framework in the area and offer suggestions as to what managers can do to ensure that their female employees benefit from a dignified and equitable work environment:

India’s Sexual Harassment of Women at Workplace Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 lays out a system for investigating and redressing complaints relating to the sexual harassment of women in the workplace. It also provides safeguards against false or malicious charges.

The major provisions of the legislation indicate that, in order to ensure a safe working environment for women, employers must:

  • Make the legal consequences of sexual harassment clear;
  • Organise workshops and sensitisation programmes;
  • Formulate an internal policy, charter, resolution and declaration;
  • Form an ‘Internal Complaints Committee’ (ICC), if the organisation employs more than 10 people;
  • Provide necessary facilities for their ICC;
  • Secure the attendance of witnesses and the respondent at any hearing;
  • Monitor the timely submission of ICC reports;
  • Assist the woman concerned in pursuing a criminal case if she so chooses;
  • Maintain the confidentiality of the inquiry process - the Act lays down a penalty of Rs 5,000 (US$68) for each individual who breaches it;
  • Report any offences to the authorities as sexual harassment is a crime.

What constitutes sexual harassment?

The Act broadly defines ‘sexual harassment’ as:

  • Implied or explicit threats of harmful treatment during the course of employment;
  • Implied or explicit threats about an individual’s present or future employment status;
  • Interference with an individual’s work or the creation of an intimidating, offensive or hostile work environment;
  • Humiliating treatment likely to affect an individual’s health or safety.

The definition also includes unwelcome sexual behaviour that compromises a female worker’s physical, emotional or financial safety and security, which includes:

  • Physical contact and advances;
  • Demands or requests for sexual favours;
  • Remarks of a sexual nature;
  • The showing of pornography;
  • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Where does the law apply?

The definition of ‘workplace’ includes:

  • Premises of all government and private entities that are involved in any economic activity or any work in education, entertainment, vocational services and sports facilities such as stadiums and sports complexes and health services;
  • Any location visited by an employee arising out of, or during the course of, their employment, including while in transit for work-related activities;
  • Societies, trusts and non-governmental organisations in which people work on a voluntary basis.

It must be noted that, with respect to domestic workers, even a house is considered a place of work.

What are the penalties for non-compliance?

Section 26 of the Act prescribes penalties for non-compliance. Each company officer who fails to comply can be sent to prison for three years and face fines of between Rs 50,000 (US$679) and Rs 500,000 (US$6,790), up to an organisational total of Rs 2.5 million (US$33,954).

If an employer commits the same offence again, the authorities are entitled to double past financial penalties, cancel the registration of the entity or revoke its statutory business licenses.

Once a sexual harassment case has been reported, employers must collect evidence around it and take action within three months. If the aggrieved woman is not satisfied, she may approach the courts under section 509 of the Penal Code or report the matter to the police in order to revisit the complaint.

Implementing India’s anti-sexual harassment legislation

To try and ensure employers take the issue of sexual harassment at work seriously, the Ministry of Corporate Affairs amended the Companies (Accounts) Rules 2014 by means of a notification dated 31 July 2018. The notification makes it mandatory for private companies to disclose that they have complied with the Act in their directors’ annual report.

The legislation also places responsibility on the appropriate state government to notify district officers about setting up a Local Complaints Committee (LCC). State governments are expected to monitor how the Act is implemented, while LCCs are required to investigate any complaints from employees in cases which their employer has not set up an ICC, or the complaint is against their employer.

Despite all of this though, the Act is not without its limitations as it focuses only on female employees. It does not cover women in the armed forces or female agricultural workers, who comprise the single, largest female component of the Indian workforce.

How can managers ensure compliance with the Sexual Harassment Act?

Hiring managers are on the front line when it comes to changing cultural attitudes towards sexual harassment. This makes it critical for them to learn from the #MeToo movement and take effective action. Here is some advice to help you ensure that your female staff are able to operate in a safe working environment:

  • Ensure the official employee handbook, which outlines the necessary procedures to take in cases of sexual harassment, is updated and includes an unequivocal statement that sexual harassment will not be tolerated;
  • Provide a clear, simple and easy-to-understand description of what constitutes sexual harassment, particularly at work;
  • Introduce training for everyone and ensure it has a focus on gender identity and sexual orientation. The aim is to sensitise male employees to the issue and boost confidence among women so they feel able to come forward and file complaints, if necessary. But also make it clear that people of any gender may be subject to sexual harassment too;
  • Keep yourself up to date on any changes to both national and local employment law.

 

This article was first published on India Briefing.

Since its establishment in 1992, Dezan Shira & Associates has been guiding foreign clients through Asia’s complex regulatory environment and assisting them with all aspects of legal, accounting, tax, internal control, HR, payroll and audit matters. As a full-service consultancy with operational offices across China, Hong Kong, India and ASEAN, we are your reliable partner for business expansion in this region and beyond. For inquiries, please email us at info@dezshira.com. Further information about our firm can be found at: www.dezshira.com.

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Female sexual harassment at work is all too common. Unfortunately though, the issue not only undermines the confidence of women to work freely, but also has a negative impact on an organisation’s performance and reputation.

So as women’s struggle against sexual misconduct continues to gain momentum in India, helped by the global #MeToo movement, it is vital that employers take a more substantive approach to tackling the problem. So here we look at the country’s legal framework in the area and offer suggestions as to what managers can do to ensure that their female employees benefit from a dignified and equitable work environment:

India’s Sexual Harassment of Women at Workplace Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 lays out a system for investigating and redressing complaints relating to the sexual harassment of women in the workplace. It also provides safeguards against false or malicious charges.

The major provisions of the legislation indicate that, in order to ensure a safe working environment for women, employers must:

  • Make the legal consequences of sexual harassment clear;
  • Organise workshops and sensitisation programmes;
  • Formulate an internal policy, charter, resolution and declaration;
  • Form an ‘Internal Complaints Committee’ (ICC), if the organisation employs more than 10 people;
  • Provide necessary facilities for their ICC;
  • Secure the attendance of witnesses and the respondent at any hearing;
  • Monitor the timely submission of ICC reports;
  • Assist the woman concerned in pursuing a criminal case if she so chooses;
  • Maintain the confidentiality of the inquiry process - the Act lays down a penalty of Rs 5,000 (US$68) for each individual who breaches it;
  • Report any offences to the authorities as sexual harassment is a crime.

What constitutes sexual harassment?

The Act broadly defines ‘sexual harassment’ as:

  • Implied or explicit threats of harmful treatment during the course of employment;
  • Implied or explicit threats about an individual’s present or future employment status;
  • Interference with an individual’s work or the creation of an intimidating, offensive or hostile work environment;
  • Humiliating treatment likely to affect an individual’s health or safety.

The definition also includes unwelcome sexual behaviour that compromises a female worker’s physical, emotional or financial safety and security, which includes:

  • Physical contact and advances;
  • Demands or requests for sexual favours;
  • Remarks of a sexual nature;
  • The showing of pornography;
  • Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Where does the law apply?

The definition of ‘workplace’ includes:

  • Premises of all government and private entities that are involved in any economic activity or any work in education, entertainment, vocational services and sports facilities such as stadiums and sports complexes and health services;
  • Any location visited by an employee arising out of, or during the course of, their employment, including while in transit for work-related activities;
  • Societies, trusts and non-governmental organisations in which people work on a voluntary basis.

It must be noted that, with respect to domestic workers, even a house is considered a place of work.

What are the penalties for non-compliance?

Section 26 of the Act prescribes penalties for non-compliance. Each company officer who fails to comply can be sent to prison for three years and face fines of between Rs 50,000 (US$679) and Rs 500,000 (US$6,790), up to an organisational total of Rs 2.5 million (US$33,954).

If an employer commits the same offence again, the authorities are entitled to double past financial penalties, cancel the registration of the entity or revoke its statutory business licenses.

Once a sexual harassment case has been reported, employers must collect evidence around it and take action within three months. If the aggrieved woman is not satisfied, she may approach the courts under section 509 of the Penal Code or report the matter to the police in order to revisit the complaint.

Implementing India’s anti-sexual harassment legislation

To try and ensure employers take the issue of sexual harassment at work seriously, the Ministry of Corporate Affairs amended the Companies (Accounts) Rules 2014 by means of a notification dated 31 July 2018. The notification makes it mandatory for private companies to disclose that they have complied with the Act in their directors’ annual report.

The legislation also places responsibility on the appropriate state government to notify district officers about setting up a Local Complaints Committee (LCC). State governments are expected to monitor how the Act is implemented, while LCCs are required to investigate any complaints from employees in cases which their employer has not set up an ICC, or the complaint is against their employer.

Despite all of this though, the Act is not without its limitations as it focuses only on female employees. It does not cover women in the armed forces or female agricultural workers, who comprise the single, largest female component of the Indian workforce.

How can managers ensure compliance with the Sexual Harassment Act?

Hiring managers are on the front line when it comes to changing cultural attitudes towards sexual harassment. This makes it critical for them to learn from the #MeToo movement and take effective action. Here is some advice to help you ensure that your female staff are able to operate in a safe working environment:

  • Ensure the official employee handbook, which outlines the necessary procedures to take in cases of sexual harassment, is updated and includes an unequivocal statement that sexual harassment will not be tolerated;
  • Provide a clear, simple and easy-to-understand description of what constitutes sexual harassment, particularly at work;
  • Introduce training for everyone and ensure it has a focus on gender identity and sexual orientation. The aim is to sensitise male employees to the issue and boost confidence among women so they feel able to come forward and file complaints, if necessary. But also make it clear that people of any gender may be subject to sexual harassment too;
  • Keep yourself up to date on any changes to both national and local employment law.

 

This article was first published on India Briefing.

Since its establishment in 1992, Dezan Shira & Associates has been guiding foreign clients through Asia’s complex regulatory environment and assisting them with all aspects of legal, accounting, tax, internal control, HR, payroll and audit matters. As a full-service consultancy with operational offices across China, Hong Kong, India and ASEAN, we are your reliable partner for business expansion in this region and beyond. For inquiries, please email us at info@dezshira.com. Further information about our firm can be found at: www.dezshira.com.

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