Sexual Harassment at the Workplace

Sexual harassment is a word that is often used in today's society. In general, it can be described as an inappropriate sexual activity. Whether in a developed country, a developing country, or an underdeveloped one, sexual harassment at the workplace is a global issue. Atrocities and cruelties against women are pervasive worldwide. It is an issue that has an adverse impact on both men and women. Being the most vulnerable group in society today, women are seen to be the who experience it more frequently. Because of this, sexual harassment is a big issue in the workplace and is now one of those topics that draw a lot of negative attention.

It has been noted that sexual harassment is a term that is challenging to define because it encompasses a variety of actions. Both national and international efforts have been made to effectively define this term. The phrase is frequently open to various interpretations. Some people think it is best to avoid socializing with female coworkers in order to avoid becoming involved in a sexual harassment claim. The truth about sexual harassment at work is that there is more cause for concern about underreporting than about persons abusing the law.

Common forms of sexual harassment in the workplace

Sexual Harassment encompasses several things:

1. Sexual Harassment encompasses several things:
2. Sexual assault or rape, whether actual or attempted.
3. Intentional and unwanted touching, hunching, cornering, or pinching.
4. Sexually explicit taunts, jokes, comments, or questions.
5. Whistling on their face.
6. Lip-smacking, howling and kissing sounds.
7. Touching a worker's body, hair, or clothing.
8. Touching oneself sexually around someone. 

Laws governing Sexual Harassment in workplace

Sexual harassment blatantly breaches a woman's fundamental rights to equality under Articles 14 and 15, to life under Article 21, and to engage in any profession or conduct any business, including the right to a secure environment free from sexual harassment.

In 2013, significant revisions were made to the IPC on Sexual Harassment, which altered how sexual harassment was regarded by India's criminal justice system. Section 354A of the Indian Penal Code, 1860, which defines sexual harassment, was included in the Criminal Law Amendment Act of 2013, which went into effect on April 3, 2013. The word "sexual harassment" and related offenses are defined in the India Penal Code, 1860, and the following penalties are listed:

Section 354A

Unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, viewing pornographic material on another person without their consent, and making unwanted sexual remarks are all considered sexual harassment under Section 354A of the Criminal Code.

Penalty: A fine and up to three years in jail.

Section 354B 

Making a woman undress. Three to seven years in prison and a fine are the possible penalties.

Section 354C

Watching or taking pictures of a woman without her permission is under Section 354C. (voyeurism). First offenses are punishable by one to three years in jail and a fine. In addition to a fine, there is a sentence of three to seven years in prison.

Section 354D

Section 354D prohibits following a woman and attempting to get in touch with her even though she has indicated that she does not wish to be contacted. observing a female user of the internet or any other electronic communication medium (stalking).

First offenses are punishable by up to three years in jail and a fine. A fine and up to five years in prison are imposed for multiple convictions. 

The POSH Act, 2013

Sexual Harassment of Women in the Workplace (Prevent, Prohibit, and Redressal) Act, 2013 - The POSH Act, 2013, was enacted by the legislature in response to the suggestions issued in the Vishakha case, often known as the Vishakha Guidelines for ensuring women's safety in the workplace. Section 3(1), which emphasizes that workplaces are required to ban any type of sexual harassment with regard to women, expressly states the purpose of this Act. It comprises female employees working in both structured and unstructured environments, such as the commercial sector or non-governmental groups. Houses and other residential structures served as domestic employees' workplaces. Along with its ban of unpleasant behaviour, its prevention, and the comprehensive framework for its redressal, it is the policy for sexual harassment protection. 

The Act not only focuses on the harasser, punishment, and the safety of women, but it also gives employers increased obligations and liabilities for protecting their staff and taking action against sexual harassment, including the additional steps that are necessary for its prevention. This Act mandates the establishment of a Local Complaints Committee (LCC) in each district and an Internal Complaints Committee (ICC) for any firm with more than 10 employees. According to the Act, an investigation into a woman's complaint of harassment must be finished within 90 days. Every office offers a transportation service that is offered by the workplace; under this Act, the victim has the right to file a complaint.

Filing a Complaint against sexual harassment at the workplace 

According to the IPC, sexual harassment is a cognizable offense, which gives police the right to make an arrest without a warrant and even to launch an independent inquiry. According to India's procedural regulations, anyone with knowledge of the conduct or offense can report it, including the victim, her relatives, and strangers. This can be accomplished in one of two ways: either by giving the police the information in the form of an FIR, followed by an investigation and trial, or by filing a complaint with the local Judicial Magistrate, involving prosecution by private parties. 

FIR registration: The victim of the crime may give a verbal statement to the police by calling or going to the police station directly. If revealed differently, the receiving police officer will be liable to action; in this case, that police officer must be a woman police officer or any woman officer. The receiving police officer will register the offense without deviating from his duties. When sexual harassment is done or attempted and the victim is incapacitated in any way, she will benefit from having the information recorded at her home or another convenient location of her choosing. The informant can speak with the superintendent of police for the relevant district if the police station's official in charge declines to file the FIR. The informant can approach the Magistrate to request guidance to conduct an investigation in the form of an affidavit if the local police station and the superior officer both decline to record the FIR.

Further matters may be filed as a Writ Petition or a Petition for Direction before the relevant High Court and seek direction for the registration of FIR, even if the Magistrate issues an Order refusing to direct such an investigation or the police are inactive on their end.

A victim or someone with knowledge of the sexual harassment commission may file a complaint with a judicial magistrate in accordance with section 200 of the Criminal Procedure Code. The complainant and any witnesses, if any, are questioned by the magistrate before the complaint is put into writing and signed by the complainant, the witnesses, and the magistrate. The accused will be served with a summons and the investigation and trial will continue if the learned Magistrate determines that there is enough evidence to move forward with or without an inquiry or investigation.

Tips to avoid sexual harassment 

Whether in the public or private sector, all employers or those in control of the workplace should take the necessary precautions to prevent sexual harassment. They should implement the following steps without showing chauvinism toward the scope of this obligation:

A clear policy prohibiting sexual harassment at work should be announced, publicized, and disseminated in the proper channels.

Sexual harassment should be prohibited by the conduct and disciplinary policies of the government and public sector organizations, and suitable and sufficient sanctions should be provided for offenders.

Actions should be taken with regard to private employers to guarantee that the aforementioned restrictions are incorporated into the standing orders made under the Industrial Employment (standing orders) Act of 1946.

To further ensure that there is no hostile environment toward women at work and that no employee woman has reasonable grounds to feel she is disadvantaged in connection with her job, appropriate working conditions should be given with regard to work, leisure, health, and hygiene.

False Complaints and Repercussions 

According to the Act, if a complaint is filed with malicious purpose and is supported by evidence, it will result in consequences under Section 14, and if a false complaint is supported by forged documentation, strict action will be taken in accordance with the organization's service regulations. One of this section's weaknesses is that there may be instances where the case cannot be fully proven, at which point it becomes a frivolous complaint. This can result in women being punished for making malicious and false complaints, which again goes against the fundamental intent of the Act.

A fine should be levied or prescribed in these situations since canceling the registration of the organization or entity results in a double punishment because doing so will harm the business and the innocent people who work there.

If it is ultimately determined that a person made a fraudulent complaint, the ICC will punish the individual who filed the incorrect complaint according to Rule 10 of the Rules.

Conclusion

Workplace sexual harassment is a significant issue that is now receiving a lot of unfavorable attention. However, India is a latecomer in formalizing sexual harassment at work as a criminal offense deserving jail time and other sanctions. The grim fact of sexual harassment cases at work is that under-reporting is a bigger concern than persons abusing the legal system. With the introduction of the current legislation, there has been a paradigm shift in how employers are held accountable for their employees' violations of the law. Vicarious liability for workplace sexual harassment did not exist prior to the passage of this statute. 

Although the Indian government has taken steps to monitor how the 2013 Act is being implemented in government offices, there is no system in place to monitor how it is being implemented in the private sector. The harm that state indifference is causing is unforgivable and irrevocable.

About The Author:

Adv. Nishant Saxena is an experienced legal professional with four years of experience specializing in arbitration, corporate, criminal, family, and property law. Practicing at the Bar Council of Uttar Pradesh, he navigates the complexities of the legal system with precision and dedication.