A Guide To Fighting Sexual Harassment At The Workplace In India

Shreemi Verma , 17 Jul 2018
Harvey Weinstein
Harvey Weinstein

Since last year, various influential and powerful men in Indian media have been accused of sexual harassment at the workplace. Sexual harassment at the workplace frequently goes unacknowledged because there’s often a power imbalance at play, or the victims fear they will lose their jobs or be labeled as ‘problematic employees’ if they raise their voices. Social conditioning and the influence of a patriarchal society compound the difficulties victims face when opening up about such sensitive matters. However, no matter how helpless victims of harassment may feel, India’s laws are very explicit in providing help for any person who has been sexually harassed at the workplace.

Harvey Weinstein has been arrested. This is a watershed moment for victims who have fought this battle for decades. It was the explosive pieces on The New Yorker and The New York Times (for which reporters Jodi Kantor, Megan Twohey and Ronan Farrow won the Pulitzer Prize) which had women going on record about the producer’s misdeeds that included rape and sexual assault that resulted in Weinstein’s undoing.

To combat this rampant problem, we have The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 under which you can file a complaint.

Firstly, what constitutes sexual harassment?

According to Sec. 2 (n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, ‘sexual harassment’ includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely –

i) Physical contact and advances; or
ii) Demand or request for sexual favours; or
iii) Making sexually coloured remarks; or
iv) Showing pornography; or
v) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

The term ‘workplace’ includes:

Sec. 2 (o)
i) Any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
ii) Any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
iii) Hospitals or nursing homes;
iv) Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
v) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
vi) A dwelling place or a house;
vii) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.

As you can see, the act has covered every possible place of employment under this explanation. Even if you are traveling for work and if you face harassment, that comes under the purview of this act, giving you grounds to file your case.

Every company is required by law to institute an Internal Complaints Committee to address any such issues raised by an employee. The accused doesn’t have to be a person in a higher position, an individual(s) on the same rank or below as the victim can be tried under this panel too.

This committee has to be present at all administrative units or offices of a company. The presiding officer has to be a woman at a senior level. If there are no women in the company, then the presiding officer has to be nominated by other employees. Two members who have experience in social and legal work or are known to have been committed to a similar cause, one member who is familiar with the cause of sexual harassment. None of the members can hold their position for more than three years.

It’s been five years since this act was passed, but as per a 2015 FICCI report, EY Fraud Investigation & Dispute Services conducted a survey which said that around 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013. A 2013 article in the Times Of India reported how most cases go unreported, especially in economically backward areas as filing an FIR itself is so difficult.

If you think things have changed now, then let me remind you how it took an anonymous blog post by a woman to document the sexual misconduct of TVF’s founder Arunabh Kumar for other victims to come out and verify the same. Around 50 women (yes 50) took to social media to declare how Arunabh had sexually harassed them.

Arunabh Kumar

TVF immediately sent out a press release after these accusations gained traction, promising to bring the complainant to task. Instead of looking into the matter and the complaints, their immediate reaction was to threaten the alleged victim. It took another three weeks for a third party to file an FIR against him and despite all the complaints, he has been given interim protection from arrest till April 17th, by a sessions court in Mumbai. After stepping down as the CEO of TVF, Arunabh’s whereabouts are unknown.

Director and producer Vikas Bahl was the next man whose antics became public, first as a blind item in Mumbai Mirror and Open Magazine, and then as a confirmed report.  He was accused of molesting an employee of Phantom, the production house he co-founded with Anurag Kashyap, Madhu Mantena and Vikramaditya Motwane. The matter did not reach the police and after an internal investigation, Vikas has been “forgiven” by his partners and is now directing a big budget Hindi movie starring Hrithik Roshan, one of the biggest stars in the country.

In 2017, ago, one of the founders of media giant Scoopwhoop, Suparn Pandey was accused of sexually harassing a former employee between 2015 and 2017. The woman in question filed a police complaint, in which she mentioned that his two co-founders did nothing to intervene despite being made aware of the problem. As per an exclusive report on inc42.com, CEO and co-founder, Sattvik Mishra wrote an email to the entire ScoopWhoop team highlighting various incidents during the complainant’s tenure at the company.

Suparn Pandey, Co-founder, Scoopwhoop

It’s been a year now and the matter remains sub-judice. Here’s a detailed report on what the status of this case is right now.

An accusation under the Sexual Harassment of Women at Workplace Act is not a criminal offense, so instead of the harasser getting a jail sentence, the complainant will be compensated. This is how the compensation is determined –

Determination of compensation –

For the purpose of determining the sums to be paid to the aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local Committee, as the case may be, shall have regard to

  1. a) The mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;
    b) The loss in the career opportunity due to the incident of sexual harassment;
    c) Medical expenses incurred by the victim for physical or psychiatric treatment;
    d) The income and financial status of the respondent;
    e) Feasibility of such payment in lump sum or in installments.

If you believe financial compensation is not enough then please file a criminal case against your harasser (under the IPC Sec 354A) and action will be taken against the accused, which could lead to imprisonment.

There might also be a chance that sometimes people are wrongfully accused of sexual harassment.

This act has a penalty for false cases as well (hopefully the #NotAllMen activists will read this before jumping the gun) –

Sec. 14 – Punishment for false or malicious complaint and false evidence

1) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false or the aggrieved woman or any other person making the complaint has produced any forged or misleading document, it may recommend to the employer or the District Officer, as the case may be, to take action against the woman or the person who has made the complaint under sub-section (I) or sub-section (2) of section 9, as the case may be, in accordance with the provisions of the service rules applicable to her or him or where no such service rules exist, in such manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide adequate proof need not attract action against the complainant under this section:

Provided further that the malicious intent on part of the complainant shall be established after an inquiry in accordance with the procedure prescribed before any action IS recommended.

2) Where the Internal Committee or the Local Committee, as the case may be, arrives at a conclusion that during the inquiry any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness or the District Officer, as the case may be, to take action in accordance with the provisions of the service rules applicable to the said witness or where no such service rules exist, in such manner as may be prescribed.

For a detailed read of the act, click here.

Apart from legal help, there needs to be aware of this matter and thankfully, with the rise of the #MeToo and #TimesUp movement, it looks like things are looking up.

While this is a good start, chances are that influential people who have been accused of harassment have often got away with their wrongdoings. 2016’s Best Actor Oscar winner Casey Affleck is one such example. According to Time.com, in 2010, two women who had worked on Affleck’s experimental film I’m Still Here filed sexual harassment suits against him.

One of the women claimed that Affleck crawled into bed with her without her consent while she was asleep. He allegedly pressured the other woman to stay in his hotel room and “violently grabbed (her) arm in an effort to intimidate her into staying” when she refused, according to the complaint. Both of them accused him of verbally abusing them, with one of them saying that Casey even told a subordinate to expose himself to her.

They also said that Affleck and the film’s star, Joaquin Phoenix, locked themselves in the women’s shared hotel room with two other women, allegedly to have sex with them. He was sued for $2 million by one woman and $2.25 million by the other. Both cases were settled out of court for an undisclosed amount in 2010. There was a lot of chatter about this case when Casey was nominated for all the major Hollywood awards and many people were disappointed that he won despite accusations of sexual misconduct. The President of the United States, Donald Trump has also made extremely disparaging remarks against women but that made absolutely no difference as he did go on to win the elections.

Donald Trump
Donald Trump

The point is that it can be pretty discouraging for a victim to speak up on an issue like this, but we can’t give up. There are enough regulations to protect victims who go through this, we just need to know the correct legal provisions.

As of now, there is The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, the Vishaka Guidelines and provisions under the Indian Penal Code which can be applied to your case for it to hold merit. Even while approaching a lawyer, make sure that’ you’ve read through the bare act to get a basic knowledge about your privacy and rights.

If your company does not have an Internal Committee, then please make the management aware as the company can be heavily fined if the measures required by the act are not met. Speak up and become a little aware of your rights and don’t allow your tormentor to take advantage of you.

#ItEndsWithMe
#ItEndsWithMe

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