Workplace harassment is a pressing issue that affects employees’ well-being and productivity across the globe. Understanding the distinctions between workplace harassment and sexual harassment at the workplace is crucial, as each has its own implications and legal framework. A fundamental commonality between workplace harassment and sexual harassment is their capacity to foster a hostile work environment.
What is Sexual Harassment?
Sexual harassment anywhere – at work, at school, on the street, etc. – is not just about sex. It is about the harasser being hostile toward the victim or abusing power over the victim because of the victim’s gender. In Washington, “gender” includes one’s sexual orientation and gender identity and expression. In most cases of sexual harassment, the harasser is a man and the victim is a woman, but men can be victims, too. Sexual harassment also happens in the gay, lesbian, bisexual and transgender community. Sexual harassment can happen between people of the same sex or people of different sexes.
Sexual harassment at work is a serious problem. It can hurt the health and well-being of workers. It can make workers less productive. It can increase employee absenteeism and turnover. In this publication, we call it “workplace sexual harassment.”
What Is Workplace Sexual Harassment?
- There are two types of workplace sexual harassment. The first type is called “hostile work environment” sexual harassment, and the second is called “quid pro quo” sexual harassment.
- Hostile work environment sexual harassment can happen in two ways:Someone you work with makes you the target of unwelcome sexually suggestive or demeaning comments, repeated and unwelcome requests for dates, offensive gestures, offensive touching, jokes or pranks, intimidating behaviors, or pornographic materials. This behavior is directed at you because of your gender status (because you are a woman, a man, or transgender). These offenses must be severe and/or pervasive. This means that the harassment occurs often enough to affect your ability to do your job well OR the level of harassment is so bad that even one incident is enough to affect your ability to do your job well. You must also show that your employer is responsible for the harassment (either directly or indirectly). This includes conduct by your employer’s customers or vendors. For example, if one of your co-workers or a frequent customer makes offensive remarks, you have to show how your workplace is responsible for allowing their bad behavior.
- The other way hostile work environment harassment occurs is if your employer provides less favorable conditions of employment to you than to your different-sex co-workers simply because of your gender status. This can include discriminatory hiring procedures, hours, wages, promotions, work schedules, work assignments, vacation or sick leave benefits, job evaluation, discipline, and termination (firing).
Duties and Responsibilities of Employers
Under the Sexual Harassment of Women at Workplace Act, 2013, all employers have the following duties and responsibilities:
- Provide a safe working environment at the workplace including safety from the persons coming into contact at the workplace;
- Display at any conspicuous place in the workplace, the penal consequences of sexual harassments. Under sub-section (1) of section 4 of the Act, every employer of a workplace should by an order in writing, constitute an “Internal Complaints Committee”: Provided that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the Internal Committee shall be constituted at all administrative units or offices;
- Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act;
- Organize orientation programmes for the members of the Internal Committee in the prescribed manner;
- Provide necessary facilities to the Internal Committee or the Local Committee, as the case may be, for dealing with the complaint and conducting an enquiry;
- Assist in securing the attendance of respondent and witnesses before the Internal Committee or the Local Committee, as the case may be;
- Make available such information to the Internal Committee or the Local Committee, as the case may be, as it may require having regard to the complaint made under sub-section (1) of section 9;
- Assist the woman if she so chooses to file a complaint about the offence under the Indian Penal Code or any other law for the time being in force;
- Cause to initiate action, under the Indian Penal Code, 1860 or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place;
- Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
- Monitor the timely submission of reports by the Internal Committee.
Powers of Internal Complaint Committee
An Internal Complaint Committee constituted under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 will have the same powers as vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters:
- Summoning and enforcing the attendance of any person and examining him on oath.
- Requiring the discovery and production of documents.
- Any other matter which may be prescribed.
The Internal Complaint Committee could recommend to the employer the following actions:
- Grant such other relief to the aggrieved woman as may be prescribed.
- Transfer the aggrieved woman or the respondent to any other workplace.
- Grant leave to the aggrieved woman up to three months.
Procedure for Filing Compliant
The aggrieved woman must make a complaint on sexual harassment at the workplace within three months from the date of occurrence of an incident. In case of a series of an incident, within three months from the date of the last incident. The complaint must be made in writing and submitted to the Internal Complaint Committee and be sent either by post or given in person. The Internal Complaint Committee also has the powers to extend the time-limit for reporting by not more than three months, if it is satisfied that the circumstances were such which prevented the employee from filing a complaint within the three months. If an aggrieved woman is unable to make a written complaint by herself on account of her physical incapacity, a complaint can be filed by:
- Her relative or friend.
- Her co-worker.
- An officer of the National Commission for Women or State Women’s Commission.
- Any person who knows about the incident, with the written consent of the aggrieved woman.
If an aggrieved woman is unable to make a written complaint by herself on account of her mental incapacity, a complaint can be filed by:
- Her relative or friend.
- A special educator.
- A qualified psychiatrist or psychologist.
- The guardian or authority under whose care she is receiving treatment or care.
- Any person who knows about the incident jointly with her relative or friend or special education or qualified psychiatrist or psychologist or guardian or authority under whose care she is receiving treatment or care.
FAQs
Formation of Internal Complaint Committee?
Under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, all employers are required to constitute an Internal Complaint Committee at a workplace by an order in writing. In case the employer has multiple branches or factories or offices, an Internal Committee must be constituted at all administrative units or offices. The Internal Committee must consist of the following members, nominated by the employer:
- A Presiding Officer who shall be a woman employed at a senior level at the workplace from amongst the employees.
- Not less than two Members from amongst employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
- One member from amongst non-governmental organizations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.
The Internal Complaint Committee must have at least one-half of the total Members as women at all times. The Presiding Officer and every Member of the Internal Committee can hold office for a period not exceeding three years, from the date of their nomination
What ISN’T Workplace Sexual Harassment?
Many things are considered when a court or government agency decides what is and isn’t workplace sexual harassment. Workplace sexual harassment may be hard to prove in court or if what happened was:
Casual jokes or individual and isolated incidents (unless they are very serious, threatening or very offensive.)
Unreported harassment by a co-worker. A “co-worker” is someone who is not an owner, manager or supervisor at your workplace. This is why reporting the harassment as soon as possible is important. It will then be your employer’s responsibility to deal with the harassment and make it stop. If your employer does not make the harassment stop, then it is workplace sexual harassment. (Other laws may protect you against a co-worker—assault or stalking laws,