Prevention of Sexual Harassment
Guideline and Reference

May 22, 2018
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Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

 

INTRODUCTION

The Government of India enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (“POSH”) in 2013 for protection, prevention, and redressal of sexual harassment against women at workplace.1 POSH mandates employers to take positive steps for grafting zero-tolerance towards sexual harassment and any failure is penalized with fine and may also lead to cancellation of business licenses.

Manufacturing is the third largest industry next to food services and Retail Trade having 11.7% harassment.

Because many manufacturing jobs such as machinists and craft workers have long been male-dominated, women who enter the field may lack power or be seen as outsiders, thus making them targets for harassment.

A safe workplace is a woman’s legal right.

Article 14 & 15: Right to life and live with dignity.

Article 21: Right to practice any profession which includes a right to safe environment free from sexual harassment.

Contents of POSH:

With reference to the Vishaka Guidelines the law hopes to redress as well as prevent cases of sexual harassment in all workplaces across India.

  1. The law applies to women harassed in the workplace including women working as domestic workers, daily wagers, temporary or permanent, full-time or part-time, as well as volunteers. The women may or may not be employed and can be of any age. The law is only applicable to women and women only.
  2. If the following circumstances exist in relation to any behavior, that is, if any act is done under the following circumstances that would also count as sexual harassment:
  • Implied or explicit promise of preferential treatment in employment
  • Implied or explicit threat of detrimental treatment in employment
  • Implied or explicit threat about her present or future employment status
  • Interferes with work or creates an intimidating/hostile/offensive work environment
  • Humiliating treatment likely to affect her health and safety.
  1. The act of harassment can occur in the workplace and also if a woman is harassed while visiting a place arising out of or during the course of employment including transportation provided by the office, a complaint can be filed under this Act.
  2. The Act requires all workplaces to set up Internal Complaints Committees to address the issue of sexual harassment. There will also be a Local Complaints Committee for each District where complaints can be filed.
  3. An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee).
  4. The Act provides the option of a settlement between the aggrieved woman and the responded through conciliation but only on the request of the woman. However, money compensation cannot be a basis for the settlement.
  5. The inquiry has to be completed within 90 days.
  6. In case of malicious complaints or false evidence, the Committee may take action against the woman/person. However, simply not being able to prove an allegation will not mean that it is a false/malicious complaint.
  7. The identity of the aggrieved woman, respondent, witnesses as well as other details of the complaint cannot be published or disclosed to the public/media.
  8. The Act also hopes to prevent such incidents by placing a duty on employers to hold regular workshops/awareness programmes as well as, display the consequences of harassment in the workplace. Every employer has a duty to provide a safe working environment to all employees.

FORMS OF HARASSMENT

  1. Discriminatory Harassment

Legal Definition — Discriminatory harassment refers to the verbal or physical conduct that denigrates or shows hostility toward an individual on the basis of race, color, gender, national origin, religion, age, physical or mental disability, and sexual orientation; or because of opposition to discrimination or participation in the discrimination complaint process.

The most common and recognizable discriminations are as follows

Racial Discrimination: discriminating based on the race, skin color, ancestry, origin country or citizenship. It can also be due to accents, customs, beliefs or clothing.

 Examples:

  • Racial slurs (a derogatory or disrespectful nickname for a racial group, used without restraint)
  • Racial insults
  • Racial jokes
  • Degrading comments
  • Intolerance of differences

Gender Harassment:Gender harassment, or gender-based harassment, occurs when a person harasses another based on their gender or gender identity. The harassment does not need to be based on anything of a sexual nature. Instead, gender harassment usually involves stereotypes based on the roles and functions associated with a particular gender.

Examples:

Inappropriate displays of material that degrades a particular gender, such as a comic or other type of visual

  • Comments or remarks that gender-degrading, such as inappropriate jokes or stories (especially if they are directed at a particular person or group of persons)
  • Insults or derogatory actions directed towards a person based on their gender
  • Remarks that continue after the person has requested them to stop, or has indicated that they are offensive
  • Actual physical contact, assault, or interference with the person due to gender issues

Religious Harassment:Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs.

Example:

  • Making offensive remarks about a person’s religious beliefs or practices.
  • One coworker constantly making derogatory comments about another’s religious beliefs. Making such comments is not an essential part of that person’s job. Hence it is religious harassment.
  • Pressures to convert religions
  • Cruel religious jokes
  • Degrading stereotypical comments

Disability based harassment:Disability-based harassment is a type of workplace harassment directed towards individuals who either Suffer from a disability themselves, Are acquainted with a disabled person or people, Use disability services (sick leave).

Examples:

  • Derogatory, demeaning or humiliating remarks
  • Name-calling or ridicule
  • Offensive or patronizing language, jokes, banter.
  • Insults
  • Unnecessary touching
  • Unwanted comments about appearance or disability
  • Intrusive questioning about disability
  • Abusive verbal or written comments related to disability
  • Deliberately putting aids and adaptations out of reach
  • Damage to a disabled person’s property, including aids and adaptations

Sexual Orientation-Based Harassment:Victims face harassment because their sexual orientation is different from those around them.

People of any sexual orientation (heterosexual, homosexual, bisexual, asexual, etc.) may experience this form of harassment depending on their line of work.

Age-Based Harassment: Age harassment involves unwelcome and offensive conduct in the workplace that isbased on a person’s age (age 40 or older).

Examples:

Because of their age and stereotypes they are

  • Teased and insulted.
  • Left out of activities or meetings.
  • Unfairly criticized
  • Wrongfully pushed to early retirement.
  1. Personal Harassment

Personal harassment is a form of workplace harassment that’s not based on one of the protected classes (such as race, gender or religion).Simply, it’s bullying in its most basic form and it’s not illegal but can be damaging nevertheless.

Examples:

  • persistent demeaning or intimidating comments
  • malicious or intimidating gestures or actions
  • threats (including to educational/employment status) and coercion
  • Excluding a person from the group
  • unwarranted words/behaviour that compromise a person’s ability to meet their work goals
  • Offensive jokes
  • Personal humiliation
  1. Physical Harassment

Physical harassment, also often called workplace violence, refers to a type of workplace harassment that involves physical attacks or threats. In extreme cases, physical harassment may be classified as assault.

Examples:

  • Direct threats of intent to inflict harm
  • Physical attacks (hitting, shoving, kicking)
  • Threatening behavior (shaking fists angrily)
  • Destroying property to intimidate

Physical harassment, in relation to sexual harassment, is when a victim is touched in an inappropriate way. Most importantly, the victim is touched against his or her will. Physical harassment may even be seen as touching oneself in front of someone. If it is done in a sexual manner and it makes someone feel uncomfortable

Examples:

  • Assaulting an individual for any reason.
  • Touching may include massaging a person on any body part without first asking permission.
  • Playing with a persons’ hair.
  • Grabbing a person’s clothes with the intention of ripping them off or revealing body parts.
  • Caressing a person’s arm, hand, or any body part in a sexual way.
  • Grabbing a person’s behind, breasts, or genitals without permission.
  • Hugging a person without permission.
  • Trying to kiss someone without asking.
  • Making bodily contact with another person in a sexual way.
  • Cornering a victim with one’s body.
  • Rubbing one’s genitals on a person.
  1. Power Harassment

Power Harassment is a kind of behavior in which a superior takes advantage of his or her position in the workplace to cause co-workers physical pain or emotional distress, whether the person is superior by means of relative work position, physical size, or otherwise.

Examples:

  • Physical attacks (such as acts of force or violence)
  • Psychological attacks (such as intimidation or verbal abuse)
  • Segregation (such as ostracism)
  • Excessive demands (such as assigning work that is impossible to perform or obviously unnecessary)
  • Demeaning demands (such as assigning work clearly below the employee’s capability or providing no work at all)
  • Intrusion upon the individual (such as intrusion into an employee’s personal life)
  1. Psychological Harassment

Psychological harassment is humiliating or abusive behavior that lowers a person’s self-esteem or causes him torment.
It is also behavior that exceeds what the person considers to be appropriate and reasonable in the performance of his work.
Psychological harassment may come from a superior, a colleague, a group of colleagues, a customer, a supplier.

This is humiliating, intimidating or abusive behavior which is often difficult to detect, leaving no evidence other than victim reports or complaints. This characteristically lowers a person’s self-esteem or causes one torment.

Examples:

  • Making rude, degrading or offensive remarks.
  • Making gestures that seek to intimidate, engaging in reprisals.
  • Discrediting the person: spreading rumors, ridiculing, humiliating, calling into question their convictions or their private life, shouting abuse or sexually harassing.
  • Belittling the person: forcing the workers to perform tasks that are belittling or below their skills, simulating professional misconduct.
  • Preventing the person from expressing ones self: yelling at the person, threatening, constantly interrupting & prohibiting the person from speaking to others.
  • Isolating the person: no longer talking to the person at all, denying her presence, distancing her from others.
  • Destabilizing the person: making fun of her convictions, her tastes and her political choices.
  1. Cyberbullying

Cyberbullying or cyberharassment is a form of bullying or harassment using electronic means. Cyberbullying and Cyberharassment are also known as online bullying.

Examples:

  • Share humiliating things about the victim by mass email or mass chat
  • Spread lies or gossip about the victim on social media
  • Send harassing instant messages or text messages directly to the victim
  • Offensive email
  1. Retaliation

Retaliation harassment is any adverse action or a kind of revenge that an employer or a superior takes against the employee in response to a complaint that employee has made about discrimination or harassment.

This type of harassment typically has three parts:

  1. Employee A files a complaint about Employee B.
  2. Employee B finds out about the complaint and who made it.
  3. Employee B harasses Employee A to get revenge and deter them from filing further complaints.

Examples:

  • Wage reductions
  • Disciplinary measures
  • Demotions
  • Negative performance evaluations
  • Hostile attitudes
  • Changes in job assignments or shifts
  • Time off without pay
  • Terminations
  1. Sexual Harassment

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Examples:

  • Sharing sexual photos (pornography)
  • Posting sexual posters
  • Sexual comments, jokes, questions
  • Inappropriate sexual touching
  • Inappropriate sexual gestures
  • Invading personal space in a sexual way
  1. Quid Pro Quo Sexual Harassment

quid pro quo, “something in exchange for something,” implies that a mutually beneficial arrangement has been reached.

In exchange for romantic or sexual services, the victim may:Receive a job offer, Receive a promotion, Receive a raise, Receive opportunities, Avoid a demotion, Avoid termination.

Examples:

  • A supervisor requesting sexual favors as a condition for hiring, promotion, advancement, or opportunities.
  • A manager threatening to terminate, transfer, demote, or otherwise adversely affect an employee’s work life if sexual favors are not given or continued.
  • A supervisor promising or giving an employee a raise or promotion because of real or expected sexual favors.
  • A director giving an employee a favorable assignment or a spot at the annual convention in Hawaii, with the expectation that the employee will repay the favorable assignment with sexual favors.
  1. Third Party Harassment

Third-party sexual harassment occurs when someone not associated with the employer sexually harasses an employee.

Instead of the perpetrator being a boss, supervisor or colleague, he or she is a vendor, supplier, customer or client of the company.

Examples:

A retailer has a business relationship with an independent contractor.  The contractor is in and out of the business daily and talks to various individuals in the course of business.  However, the contractor uses foul and slang terminology when referring to female employees, even in their presence and brings one employee to tears.  He discusses openly his sexual liaisons.  Over time, the employee develops depression and anxiety.

  1. Verbal Harassment

Act of directing negative statements toward someone, causing emotional harm. Verbal abuse consists of behaviors that are non-physical, but which can still be rather damaging, such as being threatening, insulting, or humiliating toward someone. Those who are verbally abusive tend to be so because they believe it will give them more power and control in the relationship.

Compliances under Sexual Harassment laws (Section 4(1) of the Act):

  • Constituting of an internal complaints committee(ICC) under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
  • ICC needs to have an external representation from NGO or a lawyer or a person having knowledge and experience in such areas.
  • Drafting of sexual harassment policy and approval of the same by board
  • Convening meetings of the internal complaints committee as and when required.
  • Filling of annual return under the ACT.
  • Investigation of the complaints made to the committee and submitting a report.
  • Assistance by the company to the complainant in filing of FIR or complaint to the police if required.
  • Reporting the complaints received and disposed off.

Penalty for non compliance:

  • Through the Criminal Law (Amendment) Act, 2013, Section 354 was added to the Indian Penal Code that stipulates what consists of a sexual harassment offence and what the penalties shall be for a man committing such an offence. Penalties range from one to three years imprisonment and/or a fine. Additionally, with sexual harassment being a crime, employers are obligated to report offences.
  • Punishment with fine upto Rs 50,000 (fifty thousand) can be done on the employer if there is no Internal Complaints committee as per subsection (1) of Section 4 or if the employer has not taken action under section 13, 14 and 22 or if the employer has contravened or attempts to contravene or abets contravention of other provisions of this Act or any rules made under the Act. (Section 26(1))
  • Twice the punishment (which might have been imposed on a first conviction) is liable if any employer after having been previously convicted of an offence punishable under the Act commits and is convicted of the same offence, provided that in case a higher punishment is prescribed under any other law for the time being in force, for the offence for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment (Section 26(2) (i)).
  • There can be cancellation of license or withdrawal or no renewal or approval or cancellation of registration by the Government or the local authority if any employer after having been previously convicted of an offence punishable under the Act commits and is convicted of the same offence (Section 26(2)(ii)).

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Reference:

  • https://www.legalmatch.com/law-library/article/what-is-gender-harassment.html
  • https://i-sight.com/resources/11-types-of-workplace-harassment-and-how-to-stop-them/
  • https://www.equalityhumanrights.com/en/inquiries-and-investigations/inquiry-disability-related-harassment/background-disability-related-0
  • https://www.eeoc.gov/laws/types/religion.cfm
  • https://business.laws.com/sexual-harassment/physical-sexual-harassment
  • http://www.psychologicalharassment.com/psychological-harassment-at-work.htm
  • https://www.westsoundworkforce.com/workplace-retaliation/
  • https://legaldictionary.net/verbal-abuse/
  • https://www.indiatvnews.com/news/india/10-things-to-know-about-law-relating-to-sexual-harassment-at-wor-30985.html?page=6

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