Sunday, December 5, 2010

Know The Law - Sexual harassment at workplace :

As women try to fight economic disparity with men, a new form of crime emerges- sexual harassment at work place. Each incident of sexual harassment is also a violation of human rights, gender equality - fundamental rights enshrined in the constitution.

Gender equality includes protection from sexual harassment and right to
work with dignity, which is a universally recognised basic human right. The common
minimum requirement of this right has received global acceptance. The International
Conventions and norms are, therefore, of great significance in the formulation of the
guidelines to achieve this purpose.- Vishaka V State of Rajasthan . The judgement also set out guidelines which has till date been the norms for tackling sexual harassment at workplace.

The guidelines and norms prescribed herein area as under :-

Having regard to the definition of .human rights. in S. 2 (d) of the Protection
of Human Rights Act, 1993,
Taking note of the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment in work
places and that enactment of such legislation will take considerable time.
It is necessary and expedient form employers in work places as well as other
responsible persons or institutions to observe certain guidelines to ensure the
prevention of sexual harassment of women :

1. Duty of the Employer or other responsible persons in work places and
other institutions :

It shall be the duty of the employer or other responsible persons in work places
or other institutions to prevent or deter the commission of acts of sexual harassment
and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition :
For this purpose,sexual harassment includes such unwelcome sexually
determined behaviour (Whether directly or by implication) as :
a) Physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non - verbal conduct of sexual
3. Preventive Step :
All employers or persons in charge of work place whether in the public or
private sector should take appropriate steps to prevent sexual harassment. Without
prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work
place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating
to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the
aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure,
health and hygiene to further ensure that there is no hostile environment towards
women at work places and no employee woman should have reasonable grounds to
believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings :
Where such conduct amounts to a specific offence under the Indian Penal Code
or under any other law, the employer shall initiate appropriate action in accordance
with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or
discriminated against while dealing with complaints of sexual harassment. The victims
of sexual harassment should have the option to seek transfer of the perpetrator or
their own transfer.

5. Disciplinary Action :
Where such conduct amounts to misconduct in employment as defined by the
relevant service rules, appropriate disciplinary action should be initiated by the
employer in accordance with those rules.

6. Complaint Mechanism :
Whether or not such conduct constitutions an offence under law or a breach of
the service rules, an appropriate complaint mechanism should be created in the
employer’s organization for redress of the complaint made by the victim. Such
complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee :
The complaint mechanism, referred to in (6) above, should be adequate to
provide, where necessary, Complaints Committee, a special counsellor or other support
service, including the maintenance of confidentiality. The Complaints Committee should be heated by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

8. Workers. Initiative :
Employees should be allowed to raise issues sexual harassment at workers.
meeting and in other appropriate forum and it should be affirmatively discussed in
Employer - Employee Meetings.

9. Awareness :
Awareness of the rights of female employees in this regard should be created
in particular by prominently notifying the guidelines ( and appropriate legislation when enacted on the subject ) in a suitable manner.

10. Third Party Harassment :
Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central / State Governments are requested to consider adopting
suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.

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