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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