Wednesday, February 22, 2017

Know your rights: Sex discrimination and sexual harassment at work

Safety of women matters a lot whether at home, outside the home or working place.
In today’s world where everyone is talking about the empowerment of women and making them visible on the Boards of Organizations/Companies and at other higher positions etc., on the flip-side we find that women are not safe even at their work place. Industries predominantly functions during the night and a high percentage of women are employed, security and transport have come to detracting areas. Especially, for small businesses, it's a lot harder to invest in security. It's a question that employers are considering before hiring women. But while the country is debating the issue, there is now more pressure on employers to ensure the safety of their workforce.
Taking a cue from the noted Vishaka case of 1997, Indian Parliament has legislated Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act, 2013.The Act will ensure that women are secured against sexual molestation at the work places and a realisation of their right to gender equality, life and liberty and equality in working environment in all places. It extends to the whole of India. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth. The Act makes it necessary for all offices with 10 or more employees to have an internal complaints committee to address complaint in a specify time or face penalty.

According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% of MNCs are not compliant with the Sexual Harassment Act, 2013. The government has warned to take serious action against employers who fail to obey law.

In a written reply in Lok sabha, Maneka Gandhi, Women and child development Minister stated that around 57 cases were reported at office premises and around 469 cases outside office related to work during 2014. This indicates a rapid increase in the cases of such nature and it can rectify only with the help of implementing various mandatory rules and regulations inside office premises. Gender equality is not only a fundamental human right, but must be the first step towards women empowerment in the society.

The proportion of women facing harassment is higher among the youngest workers. In a recent survey held, nearly two-thirds of the 138 women aged between 18 and 24  said they had been sexually attacked at work. Young women were often on contracts, such as temporary agency contract or zero-hours contracts, new in the workplace and in more junior roles have mostly faced an incidence of sexual harassment, but doesn’t have the confidence to report against superiors.

Sexual harassment at work can take many forms, includes any avoidable sexual advances either verbal or through gestures or through use of sexually suggestive or pornographic material, and includes amongst others; whistling, sexually slanting and obscene remarks or jokes; comments about physical appearance; demands for sexual favours; threats, innuendoes; avoidable physical contacts, touching, patting, pinching; physical assaults and molestation of and towards women workers by their male colleagues, or any one who for the time being is in a position to sexually harass the women.

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.

Aggrieved Woman means and includes (i)in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; (ii)in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

According to the Act (Section 2f), employee means a person employed at a workplace for any work on regular, temporary, adhoc or daily basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and DRAFT Page | 7 includes a co worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

Who is an employer? Employer means:
(i)in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;

(ii)in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace

(iii)in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;

(iv)in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;

In relation to workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government or the Union Territory administration it is the Central government, while those by the State Government, it is the State Government. In relation to any workplace not covered as per the above, and falls within its territory, the appropriate Government means the State Government. (Section 2b of the Act)

Workplace according to the Act includes (Section 2o)

(i) Any department, organization, undertaking, establishment, enterprise,
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by the
appropriate Government or the local authority or a Government company or a
corporation or a cooperative society

(ii) Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non governmental organization, unit or
service provider carrying on commercial , professional, vocational, educational,
entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service
(iii) Hospital or nursing homes
(iv) Any sports institute, stadium, sports complex or competition or games venue,
whether residential or not used for training, sports or other activities relating to it

(v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey
(vi) A dwelling or a house

What are the duties of the employer?
As per Section 19 of the Act, every employer shall:

(i) Provide a safe working environment at the workplace which shall include
safety from the persons coming into contact at the workplace
(ii) Display at any conspicuous place in the workplace, the penal consequences of
sexual harassments and the order constituting the ICC*(Internal complaints committee formed by an employer)
(iii) Organize workshops and awareness programmes at regular intervals for
sensitising the employees with the Act
(iv) Organize orientation programmes for the members of the ICC
(v) Provide necessary facilities to the ICC or the LCC*(Local Complaints Commitee formed by the district officer) for dealing with the complaint and conducting an inquiry.
(vi) Assist in securing the attendance of respondent and witness before the ICC or
the LCC
(vii) Make available such information to the ICC or the LCC with regard to the
(viii) Provide assistance to the woman if she chooses to file a complaint under IPC
or any other law
(ix) Cause to initiate action under the IPC or any other law 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
(x) Treat sexual harassment as misconduct under the service rules and initiate
action for such misconduct
(xi) Monitor the timely submission of reports by the ICC
An employer can be fined Rs 50,000 in case of violation of his duties under the Act.

How to File Complaint:

An aggrieved woman can file a complaint within 3 months of the incident (or later if allowed by the committee) and in case of a series of incidents, within a period of three months from the date of last incident. Where the aggrieved woman is not able to make a complaint on account of her physical or mental incapability or death or otherwise, her legal inheritor or such other person as may be recommended may make a complaint under this section.

Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (1) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be recommended.

Each individual has the right to work in an environment free from humiliating sexual harassment. But, significant figures of women are facing several obstacles in their life and career, due to the gender discrimination of the culture that is being followed nowadays. The Act provides for mandatory “Sexual Harassment Policy” and constitution of “Internal Complaint Committee” to look after the offences of harassment at work place for every organization where women are working, but many organizations do not following the same and this needs to be altered at the earliest. The Government must create appropriate system to track the implementation of this legislation at every organization to achieve the goal of these legislative reforms.

It’s time to stand out against sexual violence, Consult with experienced sexual assault lawyers. Use the largest online lawyers directory or download the LICIT app from playstore to quickly find detailed profiles of attorneys in your area.

1 comment:

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