The issue of sexual harassment of women at the workplace has overlapping issues of it being a criminal offence, gender discrimination, as civil liability and abuse of workers’ rights, and also a violation of human rights among other things.
The percentage of women in a position of power or in a position of authority is very minimum. It is of course quite possible that even women in position of power in the hierarchy could be sexually harassed by a subordinate, or one of equal cadre colleagues, or persons of another establishment.
In the matter of Vishaka Vs State of Rajasthan the Supreme Court have laid down guidelines as follows:
” Workers Initiative: Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forums and it should be affirmatively discussed in Employer-Employee meetings”.
Thus, recognising the primary status of the victim to be a worker. The Supreme Court also considered that it is to do with a clean and safe environment for a worker and is to be a valid point for discussion in workers’ meetings.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), the 2013 Act, also has left the door open for women workers to seek redressal under the Industrial Disputes Act, 1947(ID Act).
As directed by the Supreme Court, the Central Government, included sexual harassment at workplace as a “misconduct” and consequent disciplinary proceedings in the Industrial Establishments (Standing Orders) Central Rules and Model Standing orders contained in IE((SO) rules. As directed in Medha Kotwal lele Vs Union of India, Interim order dated 26th January 2004 in W.P. (Cr) No. s 173-177/1999 the inquiry conducted by the Internal Complaints Committee has the validity of a domestic inquiry authority for the purposes of the Central Civil services (Conduct) Rules, 1964.
There could be a choice of also filing a petition under the Industrial Dispute Act, in case the management interferes adversely against a case of complaint of sexual harassment at workplace.
It is deemed as unfair labour practice when there is victimisation or retaliation on complaining of sexual harassment at workplace. Also, if the management defends the perpetrator or does not take any preventive or redressal steps regarding sexual harassment at workplace. If the management does not communicate to the employee and third parties that it clearly prohibits any kind of sexual harassment at workplace.
In respect of Government servants, the Central Civil Services (Conduct) Rules) stipulates that every Government Servant shall at all times:
(i) Maintain absolute integrity;
(ii) Maintain devotion to duty
(iii) Do nothing which is unbecoming of a government servant.
Hence if a Government servant behaves inappropriately or conducts himself in such a way as to cause sexual harassment of a woman at workplace, he can be liable for disciplinary action under the service rules and also under the Act.
The Supreme Court has held that in a domestic inquiry the misconduct need not be proved beyond all reasonable doubt, but if there are preponderance of probabilities, that is enough for holding a person guilty of misconduct.
“Quid pro quo harassment”. The said harassment contains a threat of adverse implication or an indication of preferential treatment. Thus, it is usually perpetrated by a person in power who is believed to have the authority or leverage to exercise such treatment. In such a situation the employer can be held liable for putting or keeping an employee in a vulnerable situation.
Similarly, an employer should also be held liable if there is a potential for creating a hostile work environment.Sexual harassment at workplace creates a hostile work environment. It harms the workers’ health and self-esteem. Hostile work environment engenders the safety and cleanliness of the workplace. It affects the work potential of the worker and may result in abstention, attrition, inefficiency and loss of production.
Hostile work environment exists when one’s behavior within a workplace creates an environment that is difficult or uncomfortable for another person to work in, due to discrimination. The conduct must create a work environment that would be intimidating, hostile, or offensive, to a reasonable person. An employer can be held liable for failing to prevent these adverse workplace conditions. Sexual harassment by an employer is a form of illegal employment discrimination.
In Liberty Group Ltd v M (2017) 38 ILJ 1318 (LAC), an employee resigned from her employment and stated in her resignation letter that her employment had become intolerable due to ongoing and continued sexual harassment by her manager. The employee then instituted an unfair discrimination claim against her employer.
The Labour Court (LC) and later the appellate court found the employer liable for failing to take reasonable steps to protect the employee from sexual harassment.