Understanding and Assessing Sexual Harassment Sexual Harassment of Women at Workplace: Prevention Prohibition & Redressal Act, 2013 INTERNATIONAL LABOUR ORGANIZATION INTERNATIONAL LABOUR ORGANIZATION

Sexual Harassment as discrimination The means to Decent Work for all  Ensuring non-discrimination and violence  Principles of non-discrimination and equality central to human rights systems and constitution of most countries  Non-discrimination and equal opportunity and treatment –basic Human and Labour rights, fundamental for social justice

Prevalence of Sexual Harassment  Australian Human Rights Commission -2012: 0ne among 5, belong to 15 and above subjected to SH Targets of SH are mostly women and under 40 years and mostly harassed by co-workers Women are 5 times more prone to SH than men In European countries 40 to 50 experience SH In US 83% of girls aged 12 to 16 experience SH in public schools Across Asia, Japan, Malaysia, Philippines, South Korea -30 to 40 women suffer SH

Understanding Sexual Harassment  Sexual Harassment is:  not friendly and mutual behaviour  unwelcome and unwanted conduct  Sexual Harassment is:  not about romance & love  about power  Silence or lack of complaints does not mean sexual harassment does not occur

Forms of Sexual Harassment Verbal gender based insults or sexist remarks Sexual or gender-based jokes or teasing Innuendos and taunts Unwelcome sexual overtone in any manner over telephone (obnoxious telephone calls) and the like Requesting sexual favours Telling lies or spreading rumours about a Physical Unwelcome hugging, sexual touching or kissing Forcible physical touch or molestation Standing too close to or brushing up against another person, leaning over, invading a person's space Patting, stroking, grabbing or pinching Blocking someone's path with the purpose of making a sexual advance

Forms of Sexual Harassment Visual Presence of sexual visual material such as posters, cartoons, drawings calendars, pinups, pictures, computer programmes of a sexual nature Written material that is sexual in nature, such as notes, SMS, containing sexual comments Knick-knacks and other objects of a sexual nature. Non verbal Staring Sizing up a person’s body (looking up and down) Derogatory gestures of a sexual nature Sexually suggestive looks Facial expressions of a sexual nature; winking, licking lips Stalking.

Effects of Sexual Harassment  Victims: The impact of SH is different for different women and it is more prevalent among vulnerable women - ILO  Psychological suffering -Humiliation, Feelings of betrayal - Depression -Low self esteem, Powerlessness  Physical suffering: -Headaches, High blood pressure -Sleep disturbances, Gastrointestinal distress -Suicide  Professional losses: -Loss of job motivation and satisfaction -Missing out on training or promotion -Resignation or dismissal

Effects of Sexual Harassment  Enterprises:  Lower productivity and higher costs: -Absenteeism -Loss of valued employees - Turnover of staff -Workplace tension  Other Costs: payment of damages or fines  Poor image of company Key factor: SH is not about two individuals working in a workplace, it has implications on all women workers and all employees in the workplace

Effects of Sexual Harassment  Society:  Hinders the achievement of equality  Condones sexual violence  Hinders productivity and development  Danger of transmission of HIV/AIDS virus or other sexually transmitted diseases (STDs) or unwanted pregnancy

Understanding Sexual Harassment  Quid pro quo  Determining factors:  Not intent of the conduct (Intent Vs Impact)  Reasonable victim point of view  Repeated or single incident  Prior awareness approach  Proof beyond reasonable doubt .

Key International Standards  Universal Declaration of Human Rights, 1948  ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111) and Recommendation 111 (implicit)  International Covenant on Economic, Social and Cultural Rights, 1966  UN Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) Recommendation No. 19 on Violence against Women, 1992  UN Declaration on Violence against Women, 1993  ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, 1998 (freedom from employment discrimination) New Standards to be developed in years to come

Key International Standards  ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) art 20(d) (explicit reference)  ILO Occupational Safety and Health Convention (No. 155) and Recommendation 164, 1981  ILO Decent Work for Domestic Workers Convention, 2011(No. 189) art 5  The Beijing Platform of Action in 1995  ILO HIV AIDS Recommendation, 2010 (No 200) New Standards to be developed in years to come

The Sexual Harassment against Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013  Government of India ratified Convention on Elimination of all forms of Discrimination against women in 25 June 1993  Visakha Verdict in by Supreme court in 1997  Medha Kotwal Lele & Ors v Union of India & Ors, 1999 (LC prominence role)  President consent to SH Act, 2013 on 23 April 2013  Rules for the Act were notified on 9 December 2013  The focal point for the SH Act, 2013, Ministry of Women and Child Development

The Sexual Harassment against Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Article 14 and 15 of constitution Sexual Harassment against women is violation of fundamental rights of women as per Article 14 and 15 of the constitution of India Article 21 Right to life and to live with dignity Right to safe environment Right to practice any profession or to carry on any occupation/trade/business includes right to a safe environment free from sexual harassment

What are the provisions of the Act?  The Act consists 8 Chapters and 14 rules, extends to whole of India  Extends to all women including women who are not part of that particular workplace (No woman shall be subject to sexual harassment at workplace) Chapter 1  Defines aggrieved women, workplace, Appropriate government, Chair person, District officer, Domestic worker, Employee, Internal Complaints Committee, Local Complaints Committee, Respondent, Respondent, Unorganized worker, Sexual Harassment………………….

What are the key provisions of the Act? Constitution of ICC and LCC Monetary contribution Interim protection orders Conciliation Confidentiality Prosecution of false and malicious complaints Appeal authorities

Powers of ICC and LCC same powers as vested under civil court under code of civil procedure, While summoning and enforcing the attendance of any person and examining oath 2.Requiring the discovery and production of document 3. Any other matter as per the requirement of the case

Responsibilities of the Employers Constitution & composition of ICC  Every Employer of a workplace by an order in writing constitute ICC  In case it was not constituted, within three months from the date of incident/series of incidents/from the date of last employment  If the Employer fails to constitute ICC it amounts to criminal offence(50000)

Responsibilities of the Employers  Subsequent repeat of offence attracts twice the payment  It may also lead to cancellation of license of the firm  Recommendations of ICC need to be taken into consideration and action need to be taken in stipulated time frame

Responsibilities of the Employers  If the offices or administrative units are located more than in one location, all the units need to have ICC’s  Presiding officer-Senior women among the Employees  If there is not women employee…..????  Two members committed to the cause of women/legal knowledge  One member from NGO’s or Associations

Composition of ICC One half of the members need to be women  Tenure of the ICC Members and Presiding officers- 3 years from the date of their nomination  The external member need to be paid allowance for holding the proceedings of ICC by the Employer  Interim protective orders need to be obliged by the employer and take appropriate actions and report compliance to the committee

Reports of the Committees to Employers ICC and LCC need to submit periodic reports to employer and District Officer in regular intervals of time Number of cases filed Number of cases verdict was given Number of cases under going enquiry Number of cases resolved through conciliation Measures taken by Employers and District officers

Other responsibilities of the Employers Providing safe environment at the workplace (including out siders) Display the committee details in conspicuous place Organize workshops and awareness programmes Orientation for Internal Complaints Committees & regular trainings Providing necessary facilities to ICC members to conduct the enquiry and travel for members …………………………………………What else?

Other responsibilities of the Employers Assist in securing the attendance of the witnesses Making information available to Committee members Assistance to complainant (women) if she choose to file a complaint in relation to the offences under IPC Cause to initiate action (in case the perpetrator is an out sider) In case of both the employees of the same office, opportunity to be given to both to defend their positions by handing over a copy of the findings

Responsibilities of Appropriate Government To constitute LCC  The Appropriate Government may notify a District Magistrate/Additional District Magistrate/Collector/Deputy Collector as District officer to implement the Act  What are the responsibilities of District officer ?  Constitution of Local Complaints Committee  One Nodal officer in every block, Taluka & Tehesil in rural or Adivasee area, municipality in the urban area  Complaints need to be forwarded within 7 days by NO within 7 days

Local Complaints Committees Tenure of LCC- 3 years or as specified by the District officer Chairperson can be removes same as in case of ICC Chair Person and Members of LCC entitled to fee/ allowance for conducting the proceedings (only NGO and eminent women in the field of social work) Central government may make parliamentary provisions for such funds State government may set up an agency and transfer the grants

Local Complaints Committees  Jurisdiction of the LCC to the areas where it is constituted Chair person –eminent women in the field of social work One member from among women working in Block/Tahasil/ Taluk Two members, at least one being women from NGO’s

Local Complaints Committees Jurisdiction of the LCC to the areas where it is constituted Chair person –eminent women in the field of social work One member from among women working in Block/Tahasil/ Taluk Two members, at least one being women from NGO’s One Nominee need to have legal background One women from ST/SC or other Backward classes or minority community Concerned officer –Women and Child Development in the district, shall be a member of Ex-officio

Filing Complaints -procudures Complaint need to be formed within 3 months or 3 months from the last incident of harassment 3 months extension by Committee Reasonable assistance to file a complaint 6 copies of written complaint to the committee Cross examination of the witnesses No to lawyers Presence of committee members The power to give ex-parte decision (15 days) Submission of the report within 10 days

Nature of punishments Written Apology Warning Reprimand or censure Withholding the promotion/pay rise/increment Termination from Service Counselling Community service

Conciliation Conciliation is allowed upon the request of aggrieved woman No monetary compensation/settlement allowed Settlement need to be recorded by ICC or LCC and forwarded to the Employer for appropriate action Settlement copies need to be given to aggrieved woman and respondent Once the settlement is arrived no enquiry If violation of any part of the settlement or settlement as a whole: committee can proceed for the enquiry Monetary contribution

Interim Protection Orders Interim protection orders – mandatory for employer to fulfill Transfer of the aggrieved woman or respondent to other dep’t 3 months leave apart from entitlements Transfer of supervisor who evaluate the work Grant of any other relief as requested by aggrieved woman

Monetary contribution Mental trauma, pain, suffering and emotional distress Medical treatment incurred by victim physical/psychiatric treatment Income and finance status of respondent Feasibility of such amounts in lump sum or installment

Confidentiality clauses Not to publish anything on the case in public Not to discuss with any one outside the committee Penalties imposed for violation of confidentiality clause

Appellate authorities As per section 2 of Industrial Standing Orders – Labour commissioner is the appellate authority If Service Rules exist – SH is considered as misconduct and the concerned committee to look after the misconduct will be the appellate authority Wherever there are no Service Rules – Labour commissioners are the appellate authorities Annual returns to be filed by District officer/notified State authority

Time frames Constitution of ICC or LCC within 3 months or 3 months from last incident/complaint complaint within 3 months or three months from last incident that occurred If sufficient reason – 3 months extension A copy of complaint to be given to respondent with in 7 days and the response by respondent by 10 days Time frame to forward the case by LCC- 7 days

Time frames Submission of the enquiry report by ICC or LCC by 10 days of completion of enquiry The employer or District officer need to implement the recommendations of the LCC or ICC within 60 days If absent for enquiry by respondent or woman for 3 consecutive sessions – termination of the enquiry and by committee Copy of the committee decision to party responsible in case of termination - 15 days in advance

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