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The cubicle code
According to the National Crimes Record Bureau, 8, 570 cases of sexual harassment were reported last year. Not all of these dealt with sexual harassment at the workplace - they could also include incidents like eve teasing on the roads. But with up to 5. 5 million educated women joining the workforce every year it can be assumed that cases of sexual harassment at work would run into thousands. In this context, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal Bill 2012) recently passed by the Lok Sabha, comes as a welcome piece of legislation though it is several decades behind legislative developments in Western nations. The Bill is yet to be passed by the Rajya Sabha and given Presidential assent, which means that it may be 2013 by the time it is finalised. The law recognises that sexual harassment at work can take varied forms ranging from physical advances and demands for sexual favours to offensive remarks, display of pornographic material and other kinds of unwelcome physical, verbal and non-verbal conduct. In 1997, the Supreme Court of India recognised the problem and while delivering its judgement in the landmark Vishaka's case, laid down guidelines that employer organisations have to follow.
Employers were required to: prohibit sexual harassment and include such prohibition in the employees' rules of conduct;set up a complaint committee with majority of women members and headed preferably by a woman which would investigate all complaints of sexual harassment;and initiate disciplinary proceedings and possible criminal action against any offenders. "These guidelines while mandatory were an interim measure, till a suitable legislation containing specific details was enacted. Most developed countries have a formal law to deal with sexual harassment at the workplace, " says Vikram Shroff, head, employment and labour laws, Nishith Desai Associates, international legal counsellors.
Sexual harassment at work can be a prickly issue for women to deal with publicly. "In the initial stages, it can even be so subtle that it leaves the woman employee wondering whether she is over-reacting. The fear of being ridiculed, the need for job security or even the lack of awareness of their rights, all result in many cases going unreported, " explains a social worker.
Compared to many other nations, women in the UK and US are less hesitant to seek justice. According to the statistics issued by UK's Employment Tribunal Service, the number of sex discrimination cases during 2011-12 stood at 10, 800. The US Equal Employment Opportunity Commission recorded 11, 364 cases of sexual harassment charges filed during 2011.
The Bill that is awaiting passage in Rajya Sabha is not entirely flawless. For instance, it provides that action can be taken against a woman who has made a false or malicious complaint. As a saving grace, the Bill adds that a mere inability to substantiate a complaint or provide adequate proof 'need not' attract such action.
"This provision could have a dampening effect. The provisions should be further strengthened - for instance, the onus of proof could be on the alleged offender who wants to prove his innocence or there could be certain scenarios in which it shall be presumed that the complaint is genuine. The alleged offender should also have the opportunity to rebut. Also perhaps it would have been better for another act, such as the Indian Penal Code, to deal with a malicious complaint, instead of making it part and parcel of the proposed anti-sexual harassment Act, " says senior advocate Anand Grover.
In most other countries, such as the UK or US, the employer organisation can be, under certain circumstances, held vicariously liable for sexual harassment by an employee. Suits filed can even be upwards of a million dollars. However, India Inc does not have to bear any such liability.
Let us take the scenario of sexual harassment in a large company (local complaint committees are to be set up at each location having ten or more workers). Once a complaint is made to this complaint committee, after due inquiry the committee has to give its recommendations to the company for taking action. Action taken would be based on the employment rules (which could include dismissal) and it can also include granting monetary compensation by the offender to the aggrieved woman employee.
The monetary compensation is derived based on several factors, such as mental trauma caused, medical expenses incurred (including for psychiatric treatment), and the income and financial status of the offender - based on which the compensation can either be a lump-sum or payable in instalments.
At best, the company can deduct the monetary compensation from the salary of the offender;if this is not possible because the offender is absent or has been dismissed, the complaint committee can merely direct the offender to pay or send the matter to the district officer who has the power to attach and sell the offender's property. This makes the whole procedure very time consuming.
There is a further catch. "Under The Payment of Wages Act, 1936 (POWA), a list of authorised deductions from wages is provided. In addition the total amount of deduction that an employer can make is restricted to 50 per cent of the wages paid in any wage period. POWA provisions will need to be amended or waived to allow the employer to deduct the compensation payable to the harassment victim, " explains Shroff.
"There are even limits prescribed when it comes to attachment of property. Thus the law should provide that the company can also make a deduction out of the final settlement which includes retirement benefits payable to the offender, " suggests Grover.
Some terms in the Bill are loosely defined. UK's Equality Act, 2010, is clear that the sexual harassment act must be viewed from the perspective of the victim. A similar view must be taken in India. Last but not the least, this Bill is not gender neutral and only covers harassment to women.
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