Picture this: A coffee mug depicting nudity at a workstation; an employee referring to a woman colleague as “babe”; a sexual favour being solicited from a woman employee in return for a professional benefit. Would these instances tantamount to sexual harassment at the workplace?
Sexual harassment at the workplace could refer to any unwelcome sexual advance, request for sexual favour or any verbal or physical conduct of a sexual nature that affects an individual’s employment, or interferes with an employee’s work performance, or creates an intimidating, hostile or offensive work environment. Sexual harassment need not necessarily be physical harassment (such as a sexual advance or a confrontation with a sexual demand)—it could also be verbal harassment (for instance, dirty jokes or derogatory comments) as well as visual harassment (such as derogatory or suggestive emails, cartoons, calendars and drawings).
Essentially, there are two forms of sexual harassment —“quid pro quo” and “hostile work environment”.
A demand or solicitation for a sexual favour in return for a professional benefit or advantage, would be the quid pro quo form of sexual harassment. Remarks such as “I will make sure you get the assignment instead of XYZ, but you have to keep me happy” or “We can discuss your promotion in a relaxed manner if we go out of town together over the weekend”, are examples of the quid pro quo form of sexual harassment.
A hostile work environment refers to unwelcome sexual conduct that interferes with the employee’s job performance or creates a hostile, intimidating or offensive atmosphere at the workplace. Sexualized environments are work environments where obscenities, sexually explicit jokes and sexual graffiti are common. These behaviours or objects may not necessarily be directed at a particular person, but could create an offensive and hostile environment; for instance, passing sexually coloured remarks on attire or anatomy, showing/circulating pornographic material through the Internet/mobile phone or using sexual innuendos in conversation with members of the opposite sex.
India does not yet have specific legislation regulating sexual harassment at the workplace, although a Bill to protect the dignity of women (The Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Bill, 2006) has been introduced and is pending before Parliament. The Supreme Court of India, meanwhile, has laid down exhaustive guidelines to prevent sexual harassment of women at the workplace (through its judgement, Vishaka and Others vs State of Rajasthan (1997) 6SCC 241), which have the force of law till specific legislation (such as that referred to above) is enacted. However, at present, there exists no legislation in India dealing with sexual harassment against men at the workplace.
The Vishaka judgement obliges the employer or other responsible persons in the workplace to prevent and deter the commission of acts of sexual harassment and to provide procedures for resolution and prosecution when such acts occur. There are certain compliances that an organization is required to put in place, which include:
1)Sexual Harassment Policy—Express prohibition of sexual harassment at the workplace to be notified, published and circulated;
2)Work Conditions—Provision of appropriate work conditions to ensure there is no hostile environment for women at work;
3)Initiating Action —Initiation of appropriate action/proceedings if the conduct of harassment amounts to a specific offence under law or the service rules of the organization;
4)Complaint Mechanism —Institution of appropriate complaint mechanism, even if the conduct does not amount to a breach of law or service rules, to enable the victim of harassment to lodge a complaint; and
5)Complaints Committee —Institution of a complaints committee, counsellor or other support services for the effective reporting of such acts by the victim and support for the victim.
To ensure that women are not discriminated against during proceedings, the guidelines have specified that the complaints committee should be headed by a woman and at least half of its members should be women. Further, to prevent undue influence from senior levels of the organization, such a committee should involve an independent third party which is familiar with the issue of sexual harassment, such as an NGO.
Although the law in India pertaining to sexual harassment is still at a nascent stage, there is a lot that organizations can do to spread awareness on the issue. The following best practices can be adopted by companies:
1)Formulating an exhaustive ‘Sexual Harassment Policy’, which can make the employees (at all levels) sensitive to the issues related to harassment, by defining what amounts to sexual harassment at the workplace and the procedure to be followed for resolving the same;
2)Circulating the sexual harassment policy amongst all employees to spread awareness amongst them about this issue;
3)Ensuring effectiveness of the redressal system in the organization. For example, if the procedure provides that the victim can only approach his/her direct supervisor for reporting an incident, the employee may hesitate lodging a complaint because of the fear that doing so may directly affect his/her work atmosphere and opportunities, especially if the supervisor is the perpetrator of the offence;
4)Encouraging reporting of incidents that employees may have witnessed or become aware of. One way to encourage employees to come forward and report incidents is to identify certain responsible/senior persons (male and female) as ombudspersons of the organization for the purpose of lodging complaints;
5)Constituting a complaints committee to investigate the act amounting to sexual harassment. The committee should follow the procedure for resolution that has been prescribed in the organization’s sexual harassment policy;
6)Ensuring, for the benefit of the victim as well as the effective resolution of the incident, that confidentiality of the complainant and the matter is maintained at all times by the persons involved in the matter; and
7)Conducting periodic seminars, discussions, presentations and training sessions to increase the level of awareness.
These practices can go a long way in helping companies establish an effective and transparent mechanism to deal with sexual harassment complaints.
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