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Sexual Harassment Prevention Laws At

Workplace

Introduction to the new act and implementation challenges

- Abhyudaya Agarwal, Co-Founder, iPleaders (creators of a cloud-based toolkit on sexual harassment law compliance)

Legal Expert: Siboney Sagar, former General Counsel at British Telecom and General Electric

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Women specific inequalities and key reasons for a non-conducive environment at the workplace

Glass ceiling

Gender-discrimination against women

Delayed entry of women into the formal workforce

Maternity and career growth

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Precedent- based (principles emerged from a court decision and not a Parliamentary statute)

Not proactively adopted by companies or even government departments. Even the Supreme Court did not have a committee to handle sexual harassment

Impact of opinion in Vishaka Case

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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1. Substantial increase of women in the economy with more jobs requiring skills possessed by women, increased interaction and collaboration between both sexes irrespective of culture of culture, social or economic background, and

Reasons for the enactment of the law

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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2. Structural change in the economy with more jobs requiring skills possessed by women, increased interaction and collaboration between both sexes irrespective of cultural, social or economic background, and

Reasons for the enactment of the law

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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3. Increased awareness of workplace-related rights

Reasons for the enactment of the law

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Key obligations of an employer

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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The challenge is in creating a comprehensive policy that can cover important aspects without requiring employees to refer to the act.

Obligation #1 : Draft and implement a sexual harassment prevention policy or include suitable clauses in the employment contract / service rules or standing orders prohibiting sexual harassment.

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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1 for every office, branch or location which has 10 or more people working.

(This provision is heavily criticized by industry)

Obligation #2: Creation of Internal Complaints Committees

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: How many members should it have?

Answer: Four, as follows:

1 external member (who is familiar with issues pertaining to sexual harassment or is from an NGO / women’s organization)

1 senior level woman employee from the organization

2 employees from the branch

(Minimum 50 percent members must be women)

Obligation #2: Creation of Internal Complaints Committees

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Compliance 1: Publish notice informing employees of consequences of sexual harassment must be put up in the premises. It should also inform employees about the constitution of ICC and provide names of its members.

Compliance 2: Submit report on implementation of interim measures suggested by the ICC

Obligation #3: Perform necessary compliance requirements

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Compliance 3: Monitor submission of reports by the ICC within stipulated timeframe. The ICC must submit an annual report to the employer and an inquiry report (which must be made in 10 days of completing inquiry. For reference, inquiry must be completed within 90 days of the complaint being filed.

Compliance 4: Include information pertaining to sexual harassment cases in the annual report of the organization

Obligation #3: Perform necessary compliance requirements

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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ICCs may need necessary infrastructure to operate within the organization (e.g. dedicated room, confidential dockets for file preservation, comfort that they are free to award legal reliefs as per the merits of the case)

Obligation #4: Empower ICCs to conduct investigations

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Provision of data and information, communication between employees and cooperation of people working in different departments is necessary.

For example, an employee from another department may be called in as a witness in a proceeding – he should not be unreasonably precluded from appearing before the ICC on work-related grounds by seniors within the department.

Obligation #5: Set up systems for cooperation amongst various departments to facilitate resolution of complaints

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Subject matter of such training should be more comprehensive than was the case prior to the new law.

Obligation #6: Sensitize employees about their rights against sexual harassment at the workplace

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Subject matter and content must cover:

1. What constitutes sexual harassment at the workplace,

2. Remedies (including interim measures) that are available – suspension, warning, termination, transfer, withholding of promotions, deduction of salary.

3. Description of occupational roles which are awarded protection (e.g. are interns or off-site workers covered?)

Obligation #6: Sensitize employees about their rights against sexual harassment at the workplace

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Subject matter and content must cover:

4. How to seek redressal if the employee is not within her employer’s office premises (e.g. woman visiting a client’s office or working in an exhibition, harassment at a hotel or a store, etc.),

5. Necessary information for employees to file a complaint in case they are harassed

6. Support available to handle the after-effects of sexual harassment.

Obligation #6: Sensitize employees about their rights against sexual harassment at the workplace

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Penalties of non-compliance

● Fine of INR 50,000 (INR 100,000 in case of

repetitive non-compliance)

AND/OR● Cancellation of business licence.

The fine is not substantial but risks from cancellation of business license and reputational risks are significant

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Challenges Faced By Employers

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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1. Is it comprehensive enough to explain all that is necessary for an employee to know or does it require the employee to refer to the 2013 Act to understand it?

2. Does it inform the employee of his or her rights such as confidentiality or interim measures?

Challenge #1: Creation of an effective sexual harassment prevention policy

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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1. When to create – When the number of employees in a location exceeds 10. What if there are no women employees? (Although an ICC is mandatory, logistically it cannot be created as minimum two women employees are necessary).

2. Logistical problems in creation of ICCs in remote areas or for every retail outlet

3. How to identify external experts – budgetary constraints, absence of trained professionals, etc.

Challenge #2: Creation of ICCs

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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1. Training in-house legal and compliance teams on the aspects highlighted above under the head ‘Perform compliance requirements’.

2. How to measure compliance periodically and have an organization-wide compliance map, especially in large organizations.

Challenge #3: Compliance requirements

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Difficult due to its technical nature (requires imparting adjudicatory and related skillsets).There is absence of people with right experience,up-skilling the ICC is not easy if they don’t have prior experience. There is lack of experienced trainers with the necessary skills.

Challenge #4: Training of ICC members

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Obvious challenges are:

a) How should they conduct investigation?

b) How should a decision be arrived at?

c) How should the material on record be appreciated?

d) What can be done if there is no material on record?e) How should you handle false complaints?

Challenge #4: Training of ICC members

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Obvious challenges are:

f) How should orders for interim measures be written?

g) How should the inquiry report be prepared?

h) Is it necessary to separate the external member from an employer-funded trainer? from the investigator?

Challenge #4: Training of ICC members

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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The inquiry and decision-making process is subject to challenge in a court of law if certain basic procedural requirements are not followed, such as allowing both sides to represent themselves.

Challenge #4: Training of ICC members

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Next few slides will address some challenging questions at this level:

Challenge #5: Set up systems and create processes that create a conducive environment

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question:How does one ensure that confidentiality of the complainant’s and victim’s identity is preserved? What are the justifications that HR can provide colleagues when the complainant or victim is transferred or terminated? Which parts of the organization must be made aware of the truth on a need-to-know basis?

Challenge #5: Set up systems and create processes that create a conducive environment

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: At a practical level, how can one prevent retaliation against complainants?

Challenge #5: Set up systems and create processes that create a conducive environment

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: Are there ways to encourage a culture when instances of sexual harassment are reported without hesitation, instead of letting a ‘hush-hush’ culture, which silences the employee and protects senior management, prevail?

Challenge #5: Set up systems and create processes that create a conducive environment

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Apart from soft skills and technical skills related to the business, this kind of training this has typically not been the employer’s forte.

There may also be lack of trainers with the right skillsets who are available at the desired budget.

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Next few slides will address some challenging questions at this level:

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: How can an organization prevent men from feeling alienated, as legal protection and rights have only been granted to women as per the law?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: Can an organization empower men as well to report against sexual harassment?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: How do you reach out to 100 percent of the workforce in your training?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: How does an organization ensure regular access to updates and refresher courses?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: How does an organization ensure that its employees actually read and learn and do not mechanically sign on policies?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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Question: Do employees have access to the learning when they really need it?

Challenge #6: Sensitization-related challenges

Part III. Challenges faced by employers

Part I. Introduction

Part II. Key obligations of employers

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