India: Preventing Sexual Harassment In The Workplace: Statutory Protections For Women In India

Last Updated: 30 September 2013
Article by Priti Suri

Introduction

The 2001 National Census estimated that women constitute 31.6 percent of the workforce in India. As women continue to enter the workforce in greater numbers, the number of incidents of sexual harassment in the workplace may also rise. Fortunately, women in India now have a statutory right to file complaints for sexual harassment in the workplace.

Recent legislation brings into force the Supreme Court of India's 1997 decision in Vishaka and others v. State of Rajasthan,1 requiring that women be provided a safe workplace free from sexual harassment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the "Act") received the President's assent on April 22, 2013 and is effective as of April 23, 2013.2 The Act requires employers to create an environment which is free from sexual harassment and provides a complaint procedure for women who have suffered sexual harassment at the workplace. While this is a long-awaited development in India there are a number of differences between the Act and U.S. employment discrimination law as discussed below.

This newsletter briefly discusses the scope of the Act, its requirements for employers, the complaint process, and considerations for U.S. companies doing business in India.

1. Scope of the Act

The Act applies to all women in all workplaces. Section 2(f) defines an employee as a woman "employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name." Section 2(o) broadly defines workplace as including various industries such as educational, commercial, and health; employment in the home; and "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." The inclusive and rather broad nature of these definitions makes it possible for any woman who feels as though she has been the victim of unwelcome sexual harassment in any workplace to file a complaint.

Interestingly, the Vishaka decision did not apply to women lawyers working in the courts. While a trial lawyer in India may perform the majority of her work in court facilities, she is not technically an employee of the court and as a result is unable to file a complaint for sexual harassment occurring in the courts. However, earlier this year the Supreme Court of India allowed a writ petition filed by two women advocates working in the High Court, upon the revelation that an employee was peeping into the women's toilet with his mobile phone. The Court then constituted a Committee to develop recommendations and guidelines in line with the Act which were submitted in July. The Supreme Court quickly accepted the Committee's findings and recommendations which included creating a Gender Sensitization and Internal Complaints Committee to hear complaints against sexual harassment to be headed by a sitting Supreme Court Judge.

The Supreme Court case above brings even more women under the protections provided by the Act and the Vishaka judgment. Although there may be additional women in workplaces which are not yet legally protected, managers should work to provide a safe workplace to all women as the Act envisions.

2. Requirements for Employers

The Act provides a rough outline of an employer's requirements to develop a complaint mechanism. Most importantly, Section 4 of the Act requires all workplaces employing ten or more workers to establish an Internal Complaints Committee ("ICC"). The ICC must consist of at least four members under the Chairpersonship of a senior woman employee and must also include two members from amongst the employees preferably committed to the cause of women or with experience in social work or legal knowledge and includes a third party member, preferably affiliated with a non-governmental organization. If a workplace has fewer than ten employees, complaints may be filed at local complaints committees to be developed at the district level. The Act does not outline a deadline for the creation of ICCs; however, employers should develop an ICC in each of their workplaces as soon as possible to avoid penalties for non-compliance, discussed in more detail below.

Employers are required to organize various programs for members of the ICC. Section 19 requires employers to organize an orientation, workshops and awareness programs for sensitizing employees to the harms of sexual harassment and to provide assistance to the complainant should she choose to file a police complaint. Further, employers are required to display at the workplace details of the penal consequences of indulging in acts of sexual harassment, the composition of the ICC, and the grievance redressal mechanism available to aggrieved employees.

Annual reports and records must be maintained and provided to governmental inspectors on request. An employer found in violation of the Act during an inspection may be liable for a monetary penalty of up to INR 50,000 and repeated offenses could result in the fine being doubled, de-registration or revocation of business licenses. The violations which may trigger an offense by an employer include failing to create an ICC under Section 4; failure to take action as required by the ICC under Sections 13 (proven allegations), 14 (malicious allegations) and 22 (annual reporting); and contravention or attempted contravention of any provision of the Act. Thus, an employer does not appear to be financially liable for the actual misconduct of his or her employees, but may suffer financial consequences if he or she does not comply with the requirements generally outlined above.

Practically, it seems unlikely that inspections will be regularly performed at workplaces. As a result, penalties for employers will probably be uncommon. However, it may be possible for women to bring complaints against employers for not fully complying with the Act which could then initiate an investigation.

3. The Complaint Process

Assuming an ICC has been established in a workplace, a woman alleging sexual harassment must act quickly to preserve her complaint. As detailed below, the ICC must then investigate and provide recommendations for the employer.

Section 9 requires that a complaint of sexual harassment be filed within three months of the date of the incident. This may be extended for another three months if the woman can prove that grave circumstances prevented her from filing at an earlier time although "grave" is not defined within the Act. The ICC is required to complete the inquiry within 90 days of receipt of a complaint. While the complaint investigation is ongoing, upon written request of the complainant, the woman may be transferred to another workplace or granted leave for a period of up to three months. On completion of the inquiry, a report will be sent to the employer or the District Officer (for workplaces with fewer than 10 employees) who is then obligated to take action on the report within 60 days. Employers are required to ensure timely submission of reports to the District Officer.

If a complaint has been found "proved," the ICC can then recommend action which may include suspension, termination, mediation, or other appropriate actions as the ICC sees fit. It remains unclear from the text of the Act what will constitute sufficient proof. In the U.S., under Meritor Savings Bank, FSB v. Vinson,3 in addition to proving the underlying offense a complainant must also provide evidence that the conduct was unwelcome. The requirement that conduct be "unwelcome" is also found in Section 2(n) of the Act, although the amount of proof or type required is undefined. While the definition of sexual harassment is quite broad the Act also considers unspecified penalties for women who are found to have filed malicious and meritless complaints which may deter women from filing legitimate complaints.

Section 15 provides various factors to be considered if compensation for the aggrieved woman is deemed appropriate by the ICC which include the level of mental trauma, pain, suffering, emotional distress, medical expenses incurred, financial status of the respondent, loss in career opportunity due to the incident, and the feasibility of such payment in lump sum or in installments. As a result, the accused person faces a potentially significant financial loss if found liable by the ICC. The Act provides that deductions may be made from the respondent's salary or wages. This provision lacks specificity as to how much each factor will be taken into account and under what circumstances. If a complaint is not proven, the ICC can instruct the employer or appropriate District Officer that no further action is required.

The timelines in place for this process seem rather ambitious and it will be some time before we know if they are actually reasonable. It may be particularly difficult for an ICC to provide recommendations when a parallel criminal investigation is ongoing as the criminal investigation will assumedly take precedent over the ICC's inquiry.

4. Considerations for U.S. Companies

Because the Act construes sexual harassment as only affecting women U.S. companies may find that their sexual harassment policies are overly inclusive when applied to an Indian subsidiary. U.S. Supreme Court precedents allow complaints of sexual harassment to be filed by men, Newport News Shipbuilding & Dry Dock Co. v. EEOC,4 and in the case of same-sex sexual harassment, Oncale v. Sundowner Offshore Services, Inc.5 While the rights of all people are protected by Article 14 of the Indian Constitution, men are not currently guaranteed a workplace free from sexual harassment under the law.6 Furthermore, it is unclear as to whether same-sex sexual harassment, i.e., the harassment of a woman by a woman, would be a cognizable cause of action under the Act. U.S. companies may desire to create a global policy of non-tolerance for sexual harassment which encompasses all employees regardless of gender in line with national law.

Under U.S. law, it is best to very clearly articulate a company-wide sexual harassment policy to avoid vicarious liability for employee conduct. In Farragher v. City of Boca Raton,7 the Supreme Court found an employer vicariously liable for the actions of a supervisor where the employer failed to exercise reasonable care to prevent harassing behavior. It appears unlikely that an employer in India would be held vicariously liable for the actions of an employee except in circumstances, likely to be uncommon, in which the employer was found to be aiding the perpetrator in sexually harassing a female employee. Although the Act provides less financial risk for employers a U.S. company should maintain a clear, zero-tolerance policy for sexual harassment applicable to all employees in line with U.S. law which, although over-inclusive for purposes of complying with the laws of India, will minimize any potential liability.

This E-Newsline is prepared by Irene Lehne, a third year law student at Earle Mack School of Law, Drexel University under the guidance of Priti Suri who is pursuing her internship at PSA.

Footnotes

1 JT 1997(7) SC 384.

2 Ministry of Law & Justice, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Published in the Gazette of India Extraordinary.

3 477 U.S. 57 (1996).

4 462 U.S. 669 (1983).

5 523 U.S. 75 (1998).

6 Article 14 states: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India."

7 524 U.S. 775 (1998).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions