Currently, there are no legislative enactments or statutory policies against sexual harassment and abuse in the workplace. Sexual harassment includes any sexually determined unwanted behavior, including sexually colored comments, verbal or non-verbal conduct of a sexual nature. In the absence of enacted law providing for effective enforcement of gender equality and guarantee against sexual harassment, the Supreme Court of India (in Vishaka et al. V. State of Rajasthan case) established certain guidelines and standards for the due observance in all workplaces, whether public or private sector, and these guidelines are treated as the law declared by the Supreme Court under Article 141 of the Constitution of India (“Guidelines”) and can be enforce by law until the Parliament of India enacts appropriate legislation.
Some of the important standards prescribed in the Guidelines are:
Preventive steps and awareness:
All employers or persons in charge of the workplace, whether in the public or private sector, must take appropriate measures to prevent sexual harassment in the organization and carry out the following measures:
There must be an express prohibition of sexual harassment in the workplace and this prohibition must be notified, published and circulated appropriately to raise awareness about the rights of female employees in the Company. For example, the company can incorporate the policy related to sexual harassment in its Manual / Employee Handbook and make it available to each of its employees when they join the company’s services. For employees already working with the company, management can circulate the revised and amended Employee Handbook (containing the policy against sexual harassment) or, alternatively, make it available online on the intranet. It is advisable to request acknowledgment of receipt of the Manual by employees. If management has concerns related to posting the policy prominently on the Company’s bulletin boards, inclusion of the policy in the Employee Handbook and distribution of this Handbook to individual employees should be made.
Adequate working conditions are provided with regard to work, leisure, health and hygiene to further ensure that there is no hostile environment towards women in the workplace and that no female employee has reasonable grounds to believe that she is in disadvantage in relation to their employment.
The Company must initiate appropriate disciplinary action in the event of misconduct.
Complaints committee:
An appropriate grievance mechanism should be created for the compliance rectifier made by the employee in question. The grievance mechanism should be adequate to provide, when necessary, a Grievance Committee, a special counselor or other support service.
The Complaints Committee should be headed by a woman and not less than half of its members should be women. Furthermore, to avoid the possibility of any undue pressure or influence from higher levels, such a Grievance Committee should involve a third party, be it an NGO or other body that is familiar with the issue of sexual harassment.
The Complaints Committee must present an annual report to the concerned government department on the complaints and the actions taken by them.
Employee initiative:
Employees should be allowed to raise issues related to sexual harassment at employee meetings and other appropriate forums and should be discussed affirmatively at employer-employee meetings.
In view of the aforementioned Guidelines, the Company should observe the aforementioned standards and circulate the guidelines against sexual harassment, it can be part of its Employee Manual and ensure compliance with the guidelines established in the Vishaka & othr matter. v. State of Rajasthan by the Supreme Court of India.
Seema Jhingan (the author) is a partner at LexCounsel, Law Offices, a Delhi-based firm.