Key points to remember while drafting Sexual Harassment Policy

The sexual harassment policy of any business operating in India must be in conformity with THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013. The act provides protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment. The protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India.
Meaning of Sexual Harassment:
According to section 2(n) of The Sexual Harassment Act, “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
(i) Physical contact and advances; or
(ii) A demand or request for sexual favours; or
(iii) Making sexually coloured remarks; or
(iv) Showing pornography; or
(v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Prevention of sexual harassment:
Section 3 of the Act states the following:-
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:—
(i) Implied or explicit promise of preferential treatment in her employment; or
(ii) Implied or explicit threat of detrimental treatment in her employment; or
(iii) Implied or explicit threat about her present or future employment status; or
(iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety.
Key Points in Drafting of A Sexual Harassment Policy:
1) Constitution of an Internal Committee:
Every employer of a workplace shall, by an order in writing, constitute a Committee to be known as the “Internal Complaints Committee”. The constitution of the committee must be in accordance of the act. You can read more on this issue here. The constitution and working of the internal committee must be detailed

2) Handling of Complaints:
Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. Thus the policy must contains all the steps to facilitate and handle the complaints in manner prescribed by the Act.

3) Conciliation:
The Internal Committee or, as the case may be, the Local Committee, may, before initiating an inquiry under section 11 of the Act and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation. Thus the policy must contain the methodology to be followed by the internal committee during conciliation.

4) Inquiry into complaint:
The policy must state the procedures for the following:
 (a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents;
(c) Method of serving notice.
(d) Recording of Evidence.
(e) Action during pendency of Inquiry
(f) Inquiry Report
(g) Punishment for false or malicious complaint and false evidence.

5) Determination of compensation:
For the purpose of determining the sums to be paid to the aggrieved woman the Internal Committee or the Local Committee, as the case may be, shall have regard to—
(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
(b) the loss in the career opportunity due to the incident of sexual harassment;
(c) medical expenses incurred by the victim for physical or psychiatric treatment;
(d) the income and financial status of the respondent;
(e) feasibility of such payment in lump sum or in installments.

6) Prohibition of publication or making known contents of complaint and inquiry proceedings:
Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner.

7) Duties of Employer:
Under Section 19, the employer has the following duties:-
persons coming into contact at the workplace;
(b) display at any conspicuous place in the workplace, the penal consequences of sexual harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;
(c) organize workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
(f) make available such information to the Internal Committee or the Local Committee, as the case be, as it may require having regard to the complaint made under sub-section (1) of section 9;
(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;


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