The National Crime Record Bureau (NCRB) data on 2017 crimes, was the last report filed by the crime surveying agency. Since 2017, there have been no official government numbers released on crime statistics. India’s largest survey on workplace sexual harassment called ‘Garima’ was conducted by the INBA (Indian National Bar Association) and published in 2017, the key statistics give a rough idea of the situation:
- 38% women had faced sexual harassment at workplace.
- 78% working women do not report workplace sexual harassment in India. (LocalCircles)
- 65.2% women said that their respective company did not follow the procedures laid down under the POSH Act, 2013 [Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013]
- 46.7% surveyors said that the Internal Committee was not aware of the sections and the legal provisions available under the Act.
- 50% of the victims left the place post the closure of their case
What is Workplace Harassment
In the simplest, most neutral sense, harassment is a behavior, action, or intent that is offensive, hurtful, disturbing, or demeaning in nature. Harassment can come in judgmental comments, bullying, or discrimination. Although the term is usually taken to be synonymous only with sexual harassment in the workplace, the situation actually presents itself in several forms. The #MeToo campaign empowered survivors to come out and speak about their experiences.
All the way from casual or playful comments to sexual abuse or assault are considered sexual harassment. The range of actions that constitute harassment may seem extensive, but the anxiety and distress for the receiver of such actions or comments characterize harassment. Something may be considered offensive by some and not by others, since offence is subjective depending on person to person.
#OfficeMeToo is a social awareness campaign aimed at educating employees about the types of workplace harassment and how to deal with them, mentally and legally.
There are several branches under which harassment in the workplace can be understood, and redressal of these cases may also differ. Harassment does not have a particular hierarchy, flow of direction, and may not even have a proper channel of reporting in some organizations. However, harassment of various forms is present in all sorts of organizations; these are explained below:
Psychological harassment is annoying, frustrating, or abusive behavior that manifests itself in the form of verbal comments, actions, or gestures. Psychological harassment can have an extremely negative impact on a person’s mental well-being. People who face such harassment feel discouraged and ashamed.
The following four criteria characterize comments, gestures, or acts of psychological harassment:
- They are constantly persistent;
- They are hateful or unwelcome;
- They affect the self-esteem or mental health of a person; and
- They create a harmful and uncomfortable work environment.
Physical harassment, often called workplace violence, is a type of workplace harassment that involves physical attacks or threats. Physical harassment, in extreme cases, can be termed as an assault.
The easiest to understand and the most commonly found type of harassment, sexual harassment is harassment that is sexual and typically in the form of unwanted sexual advances, conduct, or behavior. All the way from casual or playful comments to sexual abuse or assault are considered sexual harassment. The range of actions that constitute harassment may seem extensive or irrational, but the anxiety and distress of the receiver of such actions or comments is what characterizes harassment, which may be subjective depending on person to person.
All types of unlawful workplace harassment are considered discriminatory but, unlike verbal or physical harassment, discriminatory harassment is characterized by its intentions instead of how it’s carried out. In this case, the bully is harassing the victim because, at least in part, they’re a member of a particular group or the victims’ cultural or personal identity.
Verbal harassment can be the result of personality conflicts in the workplace that have moved beyond a casual debate or something more serious. Unlike discriminatory types of harassment, verbal abuse is often not illegal. Verbal harassment can instead be someone’s consistent mean or unpleasant behavior.
What Does the Constitution say?
The Vishaka Guidelines is considered the birthplace of laws against sexual harassment of women in India. Before 1997 a sexual harassment case could be filed only under Sections 354 of the Indian Penal Code (IPC) and Section 509. Section 354 deals with the ‘criminal assault of women to outrage women’s modesty,’ while Section 509 punishes an individual or a group of individuals for using a ‘word, gesture or act intended to insult the modesty of a woman.’ In some cases, Section 294 is also pursued when a person “does any obscene act in any public place.”
The guidelines were a result of the 1997 ‘Vishaka and others v State of Rajasthan’ case where a social activist, Bhanwari Devi, was brutally gang-raped for stopping an incident of child marriage and all five accused were acquitted. Devi was working with the Women’s Development Project run by the Government of Rajasthan. The case was reported in multiple news outlets who condemned the incident and termed it a catastrophic and “brutal incident.”
The ‘Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013’ is the Indian Legislative act that provides grounds for the protection of women from sexual harassment in a workplace. Sexual harassment under the Vishaka Guidelines is defined as:
- Physical contact and advances;
- A demand or request for sexual favors;
- Sexually colored remarks;
- Showing pornography;
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is as below:
“An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.”
Company Policies to Prevent and Protect
Under the Sexual Harassment of Women at Workplace Act, various features are covered to allow employers to design preventive as well as redressal policies to effectively handle harassment situations.
Company policies to handle harassment allegations are essential to formulate for organizations of all sizes. Bloomberg reported that a San Francisco based company, Virta Health Corp., who didn’t have a human resources department, was unable to deliver proper justice to an employee who faced harassment in the workplace. However, in a surprising turn of events, when the incident came to light after being reported to a 3-member HR department, the employee faced more difficulty. In this case, the victim, Priyanka Wali, a doctor specializing in internal medicine and obesity treatments, had to continue reporting to the same manager who had inappropriately touched her.
Good HR policies can be undervalued at startups, said Elaine Varelas, a managing partner at Keystone Partners, an HR consulting and executive coaching firm. Organizations hardly advertise their way of handling sexual misconduct claims even though the issue is a common occurrence. Companies that are open and cooperative during these times exhibit a level of responsibility and accountability, garnering them goodwill. “Women aren’t going to work at a company that ‘deals with sexual harassment well,’” she said. “It’s not an enticing ad.”
Here’s what you can do to report harassment if your HR department is not compliant or for some reason you are not able to approach a senior office:
- Firstly, if the attack is not physical, try to resolve the issue directly with the harasser in a calm manner
- Take screenshots, photos, or audio or visual recording to support your claim.
- In case of a sexual misconduct, inquire for an internal Sexual Harassment Committee (SHC) that most companies have, and report the incident as soon as possible.
- If there isn’t a committee, contact the police or other local law enforcement and lodge a complaint and submit any evidence you have.
- Share your experience with your people close to you who can provide the necessary emotional support
Laws to Protect Victims
Although the different types of harassment don’t have any specific laws for protection, there are various laws and regulations to help victims seek redressal. The following broadly cover the statues under which protection from workplace harassment can be obtained:
- Unfair labor practice under the Industrial Disputes Act 1947
- Relevant Provision of Indian Penal Code – 1860
- Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Discriminatory harassment lawsuits)
With the rise in the reporting of such instances, there are situations in which the accusations can be false. In case one has been wrongly accused of harassment, the accused can seek protection under Section 499 of the IPC.
In India, a worker can seek redressal under different provisions provided under the Constitution of India, IPC, and CPC (Civil Procedure Code). The Indian Constitution provides labor rights under various articles. Though they may not be clear and easy to access, numerous articles provide rights to employees. Indian Constitution through Articles 21, 23, 24, 38, 39, 39-A, 41, 42, 43, 43-A, and 47 provide an idea of what conditions should be provided by the employers and the penalties in failing to do so.
We can, therefore, see that labor laws in India take not only sexual harassment in the workplace but also other types of harassment that may take place. Specific acts and regulations have been passed by the government to regulate every issue to protect employees and their interests in nearly all sectors of the economy.
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