Building Power within Women and with Peers; to Secure Equal

Opportunities & Counter Sexual Harassments

Dr Aruna Deshpande

Associate Professor

Alkesh Modi Institute

UNI Apro/FES Sub-Regional Seminar on Bridging Implementation Gaps in International Labor Standards and Decent Work Agenda

WOMEN “Women hold up half the sky – get used to it.” this message, painted on a sign at a demonstration, tells only half the story.

In many ways, women do more than their share: caring for the next generation and elderly parents, household duties,

and contributing economically. Women are more than equal in the responsibilities they assume. This must be matched at

the political, economic and social equality.

FUNDAMENTAL Rights

Right to Equality, Right to Equal Opportunity (relating to Employment)

Right to practice any profession or carry out any occupation, trade, business

Right to Life and Live with dignity.

Special Provisions for the benefit of Women

Sexual harassment is damaging on many levels:

• “It’s a human rights issue, as well as a health, education and socio-economic problem. Workplace violence is a hidden problem, but with very tangible consequences.”

• "Unwanted conduct of a sexual nature, or other conduct based on sex affecting the dignity of women and men at work, including the conduct of superiors and colleagues, is unacceptable".

• This assertion was made in the 1991 Commission Recommendation on the protection of the dignity of women and men at work.

Introduction

• Women’s labour force participation in India is notably low; 29 per cent compared to men’s 81 per cent (2009-2010 figures).

• Without ensuring a more conducive, violence-free working environment, women’s participation may decrease further.

• Combined with skills training, manpower planning and the development of a workplace culture that ensures a safe and violence-free environment, India should be able to harness its great human potential and contribute to the well-being of families, as well as to the inclusive economic growth of the country.

The ILO defines Sexual Harassment

• As a sex-based behaviour that is unwelcome and offensive to its recipient. For sexual harassment to exist these two conditions must be present. Sexual harassment may take two forms:

• Quid Pro Quo, when there is a job benefit - such as a pay rise, a promotion, or even continued employment - is made conditional on the victim acceding to demands to engage in some form of sexual behaviour; or;

• Hostile working environment in which the conduct creates conditions that are intimidating or humiliating for the victim.

T The Vishaka Judgment - 1997

• Supreme Court acknowledged that:

Sexual harassment is a human rights violation Sexual harassment is a violation of the constitutionally guaranteed

fundamental rights: Articles 14 and 15: Right to equality Article 21: Right to life - to live with dignity Article 19(1)(g) - Right to practice any profession/trade/occupation/business, i.e.,

a right to a safe environment free from harassment

There is a need for guidelines to fill the legislative vacuum

The Vishaka Judgment - Guidelines

Employer’s duty to

Prevent and prohibit acts of sexual harassment Article 21: Right to life - to live

with dignity

Redress and resolve grievances pertaining to sexual harassment

The Guidelines = Law, until such time a legislative frame work on the subject is enacted

WOMEN SEXUAL HARASSMENT ACT, 2013

RIGHT TO LIFE AND LIVE WITH DIGNITY

RIGHT TO TAKE ANY PROFESSION/OCCUPATION/TR

ADE/BUSINESS

PROTECTION AGAINST SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

FUNDAMENTAL RIGHT OF EQUALITY

The Sexual Harassment of Women at Workplace(Prevention,

Prohibition and Redressal) Act, 2013 PURPOSE OF THIS ACT

Object: Prevention + Protection + Redressal

To Provide Protection Against Sexual Harassment Of Women At Workplace And For The Prevention And Redressal Of Complaints Of Sexual Harassment And For The Matters Connected Therewith Of Thereto.

WHAT IS? Prevention

To keep from happening To stop or hinder something from happening. especially by advance planning or action

Prohibit

To forbid by authority, A law, or decree that forbids something

Redressal

To set right ; remedy or rectify.

MAJOR CONTENTS OF THIS LAW

Foundation of the Law

Definitions

Constitution of Internal Complaints Committee

Constitution of Local Complaints Committee

Complaint

Inquiry into Complaint

Duties of Employer

Duties and Powers of District Officer

Other Requirements

Overview of ACT ‘Sexual Harassment’- Definition S.2(n) & S. 3(2)

‘Aggrieved Woman’ – In Relation to a Workplace S.2(a)

‘Workplace’ – Definition S.2(o)

Duties of the Employer with Respect to the Workplace

Internal Complaints Committee (ICC)

• Members Of ICC

• Duties Of Members Of ICC

• Appeal

• Removal Of Member Of ICC

• Duties Of Employer With Respect To ICC

Penalties

Cognizance by Courts

WHA

T IS

SEXUAL HARASSMENT

UNWELCOME acts or behavior (whether directly or by

Implication):

Physical contact & advances Demand or Request for Sexual favors Making Sexually colored remarks Showing Pornography Any other unwelcome Physical, Verbal or Non-Verbal conduct of Sexual Nature

Implied or Explicit - PROMISE of preferential treatment or - THREAT of detrimental treatment in her employment; - THREAT about her present or future employment status; INTERFERENCE with her work or Creating an INTIMIDATING or OFFENSIVE or HOSTILE work environment for her, HUMILIATING TREATMENT likely to affect her health or safety

Also . . .

WHO

IS A

N

AGGRIEVED WOMAN In relation to a workplace

ANY WOMAN (Irrespective of Age)

Employed: Unemployed:

Organized or Unorganized Sector

Public or Private Sectors

Casual / Temporaries

Domestic Workers

Clients

Customers

Patients

Students/Interns

W

HAT

IS A

WORKPLACE

Government Organization/ Public Sector

Private Sector Organization & Services

Other Places

W

HAT

IS A

WORKPLACE

Government Organization/ Public Sector

Department

Organization

Undertaking

Establishment

Enterprise

Institution

Office

Branch

Unit

-Established,

-Owned,

-Controlled,

-Wholly or

Substantially

financed by

funds directly

or indirectly

provided by-

-Appropriate Govt;

- Local Authority;

-Govt Company;

- Corporation;

-Co-operative

Society

Private Sector Organization & Services

• Private Sector

Organization

• Private Venture,

• Undertaking,

• Enterprise,

• Institution,

• Establishment,

• Society,

• Trust,

• Non-Governmental

Organization,

•Provider carrying: • - Commercial,

• - Professional,

• - Vocational,

• - Educational,

• - Entertainmental,

• - Industrial,

• - Health Services

• - Financial

• Activities

•(Including production,

Supply, Sale, Distribution or

service) Unit or Service

Hospitals or Nursing Homes

Sports Institute, Stadium, Sports Complex

Competition or Games venue (Residential or Not)

used for Training, Sports or other Activities relating

thereto

ANY PLACE Visited During The Course Of Employment

TRANSPORTATION during the Course of Employment

Other Places

WHAT DOES AN

EMPLOYER HAVE

TO DO?

Constitution of Internal Complaints Committee Mandatory for establishments employing 10 or more employees

ICC to be appointed by an order in writing

At least ½ of the membership of the ICC to be women

ICC to prepare and submit an annual report to the employer and the District Officer

Internal Complaint Committee

I CC

Presiding Officer – Senior woman employee from the workplace/other admin units/office/organisations

2 Members – Committed to the cause of women/experience in social work/legal knowledge

One member from an NGO/other women’s organisation/familiar with issues relating to sexual harassment.

Local Complaint Committee

To be set up in every district

LCC is the grievance redressal body with respect to:

organisations having less than 10 employees

organisations that have not set up an ICC

Complaint

• Complaint of aggrieved women in writing to Internal Committee / Local Complaint Committee

• Within a period of three months from the date of incident.

• The Presiding officers or members of IC or LC may assist the aggrieved women to make the complaint in writing, if the women cannot do it on her own.

Grievance Redressal Process

Inquiry Principles of natural justice to be followed

Inquiry report to be submitted to the Employer and the parties

No action to be taken; Assessment of whether charges are false/malicious

Allegation not proved

Allegation proved [within 60 days]

Appeal to court/tribunal

Punishment as per service rules; Monetary penalty payable to the aggrieved woman

• ICC/LCC to inquire into whether the allegations were made with a malicious intention.

• Inability to substantiate the complaint or provide adequate proof doesn’t not amount to malice.

Determination of Compensation

Mental trauma, pain, suffering, emotional distress caused

Loss in career opportunity due to the incident

Medical expenses incurred

Income/financial status of the respondent

Feasibility of such payment in lump sum or in installments

Employers Obligation

Provide a safe working environment

Display at the workplace, details of: the penal consequences of indulging in acts of sexual harassment composition of the ICC the grievance redressal mechanism available to aggrieved employees

Organize workshops and awareness programs for sensitizing employees

Organizing orientation programs for members of the ICC

Employers Obligation

Cooperate and assist during the course of the inquiry

Treat sexual harassment as misconduct under the service rules

Provide assistance to the aggrieved employee, should she choose to file a police complaint;

Initiate action under the IPC or such other applicable law

Ensure timely submission of reports to the District Officer

To ORGANIZE workshops and Awareness programs at

regular intervals for sensitizing the employees with the provisions of the Act.

Cause to INITIATE ACTION -under the Indian Penal Code or any other Law, against the perpetrator or if the aggrieved Woman so desires, -even when the perpetrator is not an Employee;

Treat Sexual Harassment as a MISCONDUCT under the

Service rules

INITIATE ACTION for such a Misconduct;

Penalties

Failure to constitute an ICC Contravention of any provision under the statute

Fine of INR 50,000 (approx. US$1,000) Cancellation of business licences All offences under the statute are non-cognizable

Indian Penal Court Provisions •Section 509 - Word, gesture or act intended to insult the modesty of a woman

•Offence:

utterance of any word,

making any sound or gesture

exhibiting any object

•With an intention to intrude upon the privacy of such woman

•Punishment: Simple imprisonment up to 3 years + fine

•Nature of offence: Cognizable

Amendment to the Indian Penal Code Provision

• Section 354 A: Sexual harassment and punishment for sexual harassment • Offence: physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or showing pornography against the will of a woman; or making sexually coloured remarks

• Punishment: Commission of an offence under (i), (ii) or (iii) punishable with rigorous

imprisonment for a term of up to 3 years and/or fine; commission of offence under (iv) punishable with imprisonment for a term up to one year and/or fine

• Nature of offence: Cognizable

No protection for male employees

No reference to protection from ‘victimization’

Constitution of ICC for different offices

External representation within ICC

Timelines may be unrealistic

Deterrence due to employer action for false or malicious complaints

Ability to deduct from harasser’s salary

Absence of monetary liability on the part of the employer

No protection from other forms of harassment

ILO Initiatives:

• The attitude shown so far by employers is encouraging, in view of India’s commitment under the ILO Discrimination (Employment and Occupation) Convention, 1957 (No. 111), ratified in 1960. The Convention protects workers from violence and harassment and outlaws discrimination on the grounds of sex, race, colour, religion, political opinion, and national or social origin.

• The ILO Committee of Experts on the Application of Conventions and Recommendations has emphasized that sexual harassment is a form of sex discrimination and should be addressed through the Convention.

Obligations of trade Unions

• Openly discuss with male and female employees on sexual harassment;

• Help employees understand that sexual harassment has become a problem in the workplace, and learn about the nature and scope of sexual harassment;

• Set up a committee to investigate and deal with sexual harassment in the workplace with the corporate management;

• Formulate policies against sexual harassment in the workplace, including the definition of sexual harassment in the workplace and procedures to address the Problem.

• And get the women’s committee to advocate and supervise the implementation of anti sexual harassment programs.

Role of Trade Union Activist

• Set up Trade Union Committees in various sections of organisations; ie. from lower levels to top levels.

• Committees At Industrial, regional, national and international federations.

• Take periodic reviews of the committee’s contribution on various issues.

Conclusion

• Sexual harassment is thus a serious manifestation of sex discrimination at the workplace and a violation of human rights.

• It undermines equality, calling into question the integrity, dignity, physical and psychological well-being of workers.

• At the same time, enterprises are being undermined because poor work relationships also damage productivity.

• Being tolerant and respectful of others in the workplace is not only just a personal preference, but there are laws and regulations set up to prevent the mistreatment of others regarding the issue of diversity.

• Create an action plan dealing with complaints about the issues of diversity in the workplace.

• Your company should have a workplace policy in place that explicitly details what is acceptable and what is not acceptable, such as sexual innuendos and racial slurs.

THANK YOU