This article is focused on implementation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 in the private sector. It is a sequel to an EPW article published in 2013 which put forth that compliance by the private sector organisations to the Supreme Court Vishakha guidelines (1997) was poor and absence of legislation worked to the advantage of employers. Three years since enforcement of the 2013 Act sexual harassment of women persists and continues to be one of the critical issues faced by the private sector (Krasta, 2017; Jha 2017; TNN, 2017; Voices of Women, 2017). These published complaints demonstrate minimum attention by employers for prevention and resolution of sexual harassment which has led the complainants approach social media or law enforcement agencies such as police for help (Mishra, 2017; Financial Express, 2017; Hakim 2017). I argue that this situation has arisen primarily due to certain practices within the private sector with reference to implementation of the 2013 Act. Present article will be highlighting such fundamentally flawed practices which will in turn reveal callous mindset of the employers. These practices not only violate spirit of the 2013 Act but demonstrate hollow commitment by the private sector to deal with the issue.
- Awareness Generation and Capacity Building – Sexual harassment at workplace emerging from gender discriminatory attitudes is a complex interplay of gender, power and sexuality (Pillai and Goswami, 2016; Thomas, 2016; Roper, 2017; Elting, 2017). Vibrant discussions on these aspectsought to be a starting point for a prevention initiative with employees. However compelling large number of employees to go through mundane online content is a dangerous trend. Though usage and popularity of online modules is justified basis their low cost and accessibility for organisations that have geographical spread, negative effects of online training were confirmed by a team of US Equal Employment Opportunity Commission which discovered that training done over the last 30 years did not yield expected results. It failed to act as a prevention tool because it was symbolic compliance to law more focused on warding away legal liability rather than putting end to sexual harassment. There was little effort to actually reduce discrimination or harassment towards women (Levin, 2016; Feldblum and Lipnic, 2016). Researches done in the US cited similar negative and harmful effects of online modules consisting of cartoons and unreal examples. Such trainings made men less capable of perceiving inappropriate behavior. They were more likely to blame victims (Cueto, 2016) as they were not able to relate to the cartoonish examples thereby leading to lack of self reflection (Reid, 2016). Section 19 of the 2013 Act mandates that workshops or awareness programmes for employees to be organised by employer. In March 2017 the Ministry of Women and Child Development (MWCD) of Government of India (GOI) published a training module on its website making it obvious that the awareness generation is to be done through classroom sessions. Contradictory to this method many employers in India are choosing to use online training modules to generate awareness (Phadnis and John, 2014; Singh, 2014). Propaganda for usage of online training can be understood from the EY (2015) survey which revealed that out of total surveyed companies 46% of companies did not have online modules for training new employees. From this it can be derived that remaining 54% of surveyed companies were carrying out awareness programs in some manner and probably using online modules for creating awareness. On one hand while there is dismal performance on part of employers to create awareness amongst employees (Bhattacharya, 2015; Vyas, 2017; INBA, 2017) any effort to create awareness should be counted. But most online awareness content available in India is simplistic and generalised due to absence of nuanced understanding on the issue. It leaves out grey areas related to the issue and law thus has potential of doing negative messaging due to absence of in person facilitation (Joy, 2015). It is important that Indian employers learn lessons from the US. Need of the day is that the government monitors contents and mode of awareness sessions happening in private sector to ensure that employers are investing resources in live facilitators who use real life examples, discuss nuances and address complex issues related to gender relations at workplace.
- Selection of External Member for Internal Committee and Recognising Their Role – Vishakha judgment (1997) came into existence due to exceptional efforts of the women’s rights organisations and lawyers. They drew from the life example of Bhanwari Devi, a village level volunteer employed with the Rajasthan state government programme and extended the argument regarding protection of women from sexual harassment to all working women in India (Sood, 2006). This intervention by the activists was duly recognised by the Supreme Court of India in the Vishakha guidelines (1997) by mandating presence of an NGO member with then Complaints Committee. This unique provision has been retained in the 2013 Act which helps understand that appointment of an outside member is important to Committee functioning. The 2013 Act mandates that the external member should be either from an NGO or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment. Contrary to these parameters mandated by the Act and above mentioned expectations elucidated by the Court, certain moves are being done to nullify the provision by inviting graduates of any discipline to be trained as external members with an assurance that a ready list of names would be shared with employers for choosing external members (B.PAC and ComplyKaro, 2017). Role to be played by the external member was elaborated by a 2014 judgment by the Nagpur Bench of the Bombay High Court which specified that the external member is independent and impartial person who will command respect and compliance to the law from influential management. Kapur (2013) stated that the external member brings in knowledge, skill and capacity to ensure that the processes are done in a professional and unbiased manner. Presence of a novice or a person not having relevant field experience could lead to lack of just and fair Committee proceedings. This can prove to be injurious to the interest of the complainant and affect trustworthiness of the IC. Therefore it is needed that the 2013 Act is amended to include criteria for appointment of a credible and experienced external member plus their responsibilities.
- Zero Reporting of Sexual Harassment and IC Functioning – Large scale surveys done across India done by Saheli (1998), SARDI (1999), Sanhita (2000), Sakshi (2001), Lawyers Collective-ILO (2002), Yugantar (2003), CFTI (2010), OXFAM (2012), Sharma (2014), INBA (2016) and media reporting till date i.e. Alavi (2017), Gole (2017) confirms thatthat majority of women employees do not report sexual harassment prominent reasons being lack of confidence in the organisation including redress mechanism, low awareness about law and procedures, threat of professional victimisation apart from fear of ridicule, stigma, embarrassment. This highlights inadequate efforts by the employers and ICs to create assurance in women employees which could be counted as the foremost reason for low or no reporting of sexual harassment. Conversely low or zero reporting is used to justify the passive approach taken by the IC’s. Such convenient but damaging positions taken by the ICs keeps the vicious cycle of low or zero reporting going. It is important to note that in May 2016 there was an amendment to the 2013 Act wherein nomenclature was changed from Internal Complaints Committee (ICC) to Internal Committee (IC). This amendment entails that the IC is longer only a complaint resolving mechanism but should work as per key objective of the 2013 Act i.e. prevention of sexual harassment. Expansion in the role of the IC demands broadening its scope from being idle body waiting to receive complaints to proactively undertaking prevention initiatives which will generate awareness about rights of women employees guaranteed by law and raising their confidence to report incidents of sexual harassment. This will help break silence around the issue and enhance reporting of sexual harassment. Therefore the format of the Annual Report as laid down by Rules of the 2013 Act should include number of IC meetings held periodically to discuss prevention strategy.
- Role and Responsibilities of Employers
Rape and murder of a woman employee In December 2005 by driver of taxi provided by employer (Raghu, 2005) and another one in 2017 for having resisted advances from a security guard placed on company premises (Hindustan Times, 2017) are two glaring examples of underlying problems created due to careless approach by employers especially in the context of contractual services. Each of the above mentioned instances of sexual harassment and assault generate nationwide vigorous discussion on safety of working women where in the focus is invariably on tough security measures, round the clock surveillance and joint functioning of police and contractual security (Joshi, 2017; Mukherjee, 2017). However the core issue regarding lack of safety audits by companies functioning as contractors / vendors and principle employers availing their services finds no place in the discourse. The discussion regarding responsibility of creating awareness on sexual harassment among contractual employees which rests solely on the principle employer is absent. None of the agencies including contractors and principle employers are seen investing resources for prevention of sexual harassment while women employees are endangered in the face of sexual assault and life threatening situations. Neglect of duties by the principle employer amounts to not complying with the 2013 Act wherein as per Section 2 (g) (iii) the principle employer fulfilling obligations laid down by the Act is bound to performing duties of employer mandated by Section 19 while as per Section 2 (f) a person employed at the workplace through a contractor with or without the knowledge of the principle employer will be counted upon as an employee i.e. his behaviour and her safety is responsibility of the principle employer. Therefore it of utmost importance that necessarily a clause in the service agreement should be included by the principle employers whereby the contractors will be responsible to follow provisions of the 2013 Act and will work in collaboration with the principle employer for prevention and redress of sexual harassment complaints.
- Inaction against Men at the top and Role of Local Committee – Definitions of sexual harassment given by (MacKinnon, 1979; Aggarwal, 1992; Stanko, 1988) analyse sexual harassment from the gender relations perspective highlight that sexual harassment at workplace is an unwanted sexually oriented behaviour resulting out of unequal power relations at workplace and it has serious consequences on the employment of women. Recentcases reported from a web production house (TNN, 2017), internet media company (Scroll, 2017), financial services company (Vyas and Babar 2015) and a Delhi based publishing house (Mantri, 2016) reveal that whenever the complaint is against a man at a senior position invariably there is failure to protect career interest of the complainant leading to her termination or resignation from service (Hindustan Times, 2015; Sen, 2015; Ganz, 2015; Shukla, 2015; Dutt, 2016; Joseph, 2016; Calamur, 2017; Crasta, 2017). Inaction on part of the organisations to act promptly against the person at important position in the hierarchy and disregard of such cases by the government pushes complainants to approach external agencies such as media, police and court for redress of their complaints (Kidiyoor, 2014; Jha, 2017; Voices of Women, 2017; Rai, 2017; Indian Express, 2017) Experiences of the past reveal that in all complaints reported against men falling in the category of employers, Committees were either nonexistent (Business Standard, 2013), ineffective (Barua, 2015) or gave clean chit to the man (Vijayraghavan and Philip, 2017). In such circumstances it is important that the inquiry is conducted by an outside body which is not reporting to the person wherein chances of the Committee members getting pressurised are less. Section 6 of the 2013 Act provides that inquiry is to be conducted by the Local Committee when the complaint is against the employer. However in none of the cases reported against persons falling in the category of employer Section 6 was invoked and activated. Inquiries were or are being conducted by Internal Committees comprising of employees who directly or indirectly report to the respondent (DNA, 2017; Scroll, 2017). It is important that there is a mechanism created by the government that whenever a complaint is reported against the employer it should be dealt by the Local Committee of the District and not by the IC which comprises of members reporting to the respondent or in subordinate position.
Sexual harassment continues to plague workplaces in India. The INBA survey (2016) done across private sector organisations reveals that work place was the most sexually aggressive place in their lives of women. It further highlights that of most employers turned blind eye to sexual harassment complaints and lack of awareness amongst women employees about complaint mechanism within the organisation. Additionally it brought forward that employers did not follow complaint resolution process mandated by the statute. Recently it was reported that only around one fourth companies across Gurgaon submitted Annual Report mandated to be submitted by the employer to the government as per 2013 Act and a majority of them either submitted incomplete information or incorrect (Choudhry, 2017). Thus it can be concluded that though the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides penalty to employers for non compliance, they did not fulfill obligations mandated by the Act. This can be further inferred from the instances of penalty being imposed by State Labour Commissioners on employers for having not dealt with the reported complaints of sexual harassment in accordance with the law (Kidiyoor, 2014; Business Insider, 2017) and police action against the employer for not having fulfilled obligations under 2013 Act (Nagpur Today, 2017). Criminal cases registered in Mumbai during the year 2016 reveal that 54% of complainants of sexual harassment sought police intervention to deal with sexual harassment from colleagues and seniors (Navalkar, 2017). These scenarios reflect severe shortcomings on part of employers to deal with sexual harassment in a efficient manner. While the Government of India has been taking active steps to monitor implementation of the 2013 Act in government offices (DNA, 2017) there is there is absence of mechanism to check execution in the private sector. The damage that is happening due to state apathy is unpardonable and irreparable.
Author has a PhD in Social Sciences and is working on socio legal aspects of sexual harassment at workplace since 2005.
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