loading

    Sexual Harassment at the Workplace

    When someone at a place of work behaves in a sexual way towards women and it is unwanted, offensive, threatening, or humiliating, it is seen as a form of harassment. Indian law protects women from both men and women who ask for or demand anything sexual at work. Employers must make sure their place of work is safe for women employees and must take claims of sexual harassment seriously.

    Victims recognized by the law

    Even though anyone can be sexually harassed at the workplace, only women are protected by Indian law. Men in India are not protected from sexual harassment at the workplace by another male or female employee. Any woman is protected from sexual harassment at the workplace whether she is:

    • A full-time employee
    • A part-time employee
    • A contractual employee
    • Working for compensation (cash or other)
    • A visitor to a workplace
    • Domestic help
    • Hired through an agency
    • Working on a short-term basis
    • Working on a long-term basis
    • Working on a daily basis
    • A volunteer
    • An intern

    If you don't know if you count as a victim of sexual harassment at the workplace, talk to a legal expert about your situation.

    Accused of Sexual Harassment

    If someone says you have sexually harassed them, you should take it seriously. If you don't come three times in a row to hearings your employer has set up, you may not get to speak before a decision is made. Only women are protected from being sexually harassed at their place of work, but sexual harassment can be done by anyone, male or female.

    • You do have rights if you are accused of sexual harassment. For example:
    • You cannot be arrested without a warrant
    • You have the right to get a copy of the complaint within 7 working days of the complaint being filed
    • You have the right to reply. You can submit documents and a list of witnesses within 10 working days of getting the documents from the person who accused you.
    • You have the right to hire a lawyer, but only from the point when you have to speak to the Complaints Committee.
    • You have the right to appeal a decision made by the Committee

    If the Internal Complaints Committee decides that the sexual harassment claim against you is not true, you will not be punished. But, if they decide the claim is true, the Committee can give your employer or the District Officer options for how you could be punished.

    Actions/Behaviour seen as Sexual Harassment

    There are many things that the law says are sexual harassment. It can be:

    • Touching or any other form of physical contact that someone does not want
    • Asking for or demanding sex or any other sexual acts
    • Saying things that are sexual
    • Showing someone pornography in any form—for example, videos, magazines, or books.
    • Any other actions that are sexual. They can be things that are said, things that are written, or touching.

    This government handbook can help you understand what actions are seen as sexual harassment.

    Filing a Complaint

    If you have been sexually harassed at the workplace, this is how you file a complaint:

    How to file a complaint against sexual harassment

    1. Draft a complaint
    2. Make six copies of the complaint
    3. Make sure to submit any supporting documents for the complaint with the complaint
    4. Make sure you submit the names and addresses of any witnesses who are supporting your complaint
    5. Submit your complaint to the Internal Complaints Committee* within three months of the sexual harassment.

    If you cannot write the complaint on your own, the Committee can help you. Sometimes, a complaint can be filed by someone else on your behalf. If you do not want to file a formal complaint they can try to work out the situation with the other person. This is called “conciliation.”

    *If your workplace does not have an Internal Complaints Committee, you can go to the Local Complaints Committee that is closest to you.

    Work Environment After Filing a Complaint

    If you are a victim of sexual harassment you can write to the Complaints Committee to ask them to make your place of work safer by:

    • Stopping the person who has been accused from reporting on your work and/or choosing someone else to do it
    • Stopping the person who has been accused from supervising you if they are in an academic setting

    Taking Leave or Working during Proceedings/Inquiry

    If you are sexually harassed at work and have filed a complaint, usually an Internal Complaints Committee will look into your case. While they are doing this, your employer cannot force you to keep working or take away any leave you are owed. You can use your leave and even ask the Committee for more.

    Your employer cannot ask you to leave work while your case is being looked at. You can also ask the committee to recommend to your employer that:

    • You or the person you accused should be transferred to another workplace
    • You should be given three months leave

    Your Privacy During the Complaint and Proceedings

    As a victim, you have a right to keep your complaint and the things that happen after it private. The law guarantees that the following information is private:

    • Your identity and address
    • The identity and address of the person you accused, as well as the witnesses
    • Information about the conciliation (see what this means in the Glossary) or inquiry being made by the committee
    • Recommendations of the Internal Committee or the Local Committee
    • Action taken by the employer or District Officer

    All of the above information cannot be published, communicated, or made known to the public, press, or media in any way.

    Complaining on behalf of Victim

    If the victim is unable to file a complaint herself because of a physical issue, a complaint can be filed for her by:

    • A relative or friend
    • A co-worker
    • Someone who knows about the sexual harassment that took place, and has her written permission
    • An officer of the National Commission for Women or State Women's Commission

    If the victim is unable to make a complaint herself because of a mental issue, a complaint can be filed for her by:

    • A relative or friend
    • A special educator
    • A qualified psychiatrist or a psychologist
    • The guardian/authority who gives her treatment or care
    • Any person who knows about the sexual harassment that took place, along with a relative or friend, a special educator, a qualified psychiatrist or psychologist, or the guardian/authority who gives her treatment or care

    Sometimes the victim might be unable to make a complaint for a reason besides physical or mental issues. If so, a complaint can still be filed on her behalf by anyone with who knows about the sexual harassment that took place if they have the victim’s written permission. This also applies if the victim is dead and their legal heir gives permission.

    Appealing a decision

    Both the victim and the accused have the right to appeal the decision of the Internal or Local Complaints Committee. They should appeal within 90 days of the decision of the Committee. For example, cases could be appealed when the Committee decides that:

    • There has been no sexual harassment
    • The offender should be let off or punished in some way
    • The offender should compensate the victim
    • The victim has made a wrong complaint on purpose
    • The witness has given wrong information or fake documents
    • Someone has made the details of a sexual harassment complaint public
    • The employer has not carried out recommendations on time

    The appeal should be made to the authority that is mentioned in the service rules of the workplace. If there are no service rules, the victim can appeal to specific industrial tribunal and labour courts. All of the recommendations should be implemented within 6 months by the District Officer who receives them from the Committee.

    Reaching a Settlement

    If the victim does not want to take care of her sexual harassment claim through a formal complaint with the Internal Complaints Committee, she can ask the Committee to help settle the matter through Conciliation. Conciliation is a mutual agreement between the victim and the accused person to settle the problem between themselves, peacefully.

    Only the victim has a right to start the process of conciliation. If the victim and the accused reach a settlement through the conciliation process the recorded settlement will be sent to the employer or District Officer so that action can be taken.

    The victim and the offender both have the right to a copy of the recorded settlement. It will be provided to them by the Internal or Local Complaints Committee. The Internal Complaints Committee will not start an inquiry if a settlement happens through conciliation. Getting money from the accused cannot be the reason for conciliation.

    Compensation

    The amount of money that victims will receive as compensation is based on the following things:

    • Mental trauma and distress caused to the victim
    • Lost job opportunities because of the sexual harassment
    • Medical treatment (physical or psychiatric) that the victim needs
    • The victim's income and general financial status.

    The Committee can decide whether this money should be paid over time in instalments or all at once.

    Punishment

    The law does not have a single punishment for all cases of Sexual Harassment at the workplace. Instead, the Committee investigating will recommend that the victim's employer act according to the service rules of their workplace, if it has them. If you have an employee handbook, please refer to that to see how your employer punishes sexual harassment. If the workplace does not have service rules, then the Committee will recommend that the District Officer take action. As punishment, an offender may:

    • Have to give a written apology
    • Be denied a raise/promotion/increment
    • Have to do community service
    • Be given a warning or censure
    • Lose their job
    • Have to get counselling

    Whether or not the workplace has service rules, the Committee can also recommend that the employer take a certain amount from the offender's salary/wages so that compensation can be paid to the woman who was harassed. If the employer cannot take money from the offender's salary because they are not working or have left work, the Committee can order the offender to pay the victim directly. If the offender does not pay the compensation, then the Committee can ask the District Officer to get the money from the offender.

    False Complaint

    Wrong complaints made on purpose or fake documents given to the committee are taken very seriously. If a victim or someone acting for them does either of these things, they could be punished based on the service rules of the workplace. If there are no service rules, the action taken against them can be decided by the Committee. As punishment they may:

    • Have to give a written apology
    • Be given a warning or censure
    • Not be given a promotion
    • Not be given an increment
    • Lose their job
    • Have to have a counselling session
    • Have to do community service

    Just because a victim is unable to provide enough proof to the Committee, it does not always make her complaint false. The Committee will have to to find out if she made a wrong complaint on purpose.

    For example, if Isha makes a complaint against Rohit but there are no witnesses, documents, or anything at all that shows there was sexual harassment, her complaint will not be seen as false. But, if Isha wrote an email to a friend telling them she was lying about the harassment happening, her complaint could be seen as malicious or false.

    Employer’s Responsibility

    Under the law, an employer has to take certain steps to create a safe work environment for women.

    Women in the workplace should feel safe from sexual harassment from co-workers as well as others who might just be visiting the workplace. It’s important for employers to display the sexual harassment policy of the company where it can be seen. They also must display the order that sets up the Internal Complaints Committee so employees, as well as visitors to the workplace, can see it.

    Employers must:

    • Create and put forward a detailed sexual harassment policy
    • Make sure employees are aware of the issue of sexual harassment
    • Set up committees in the workplace that women workers can turn to if they have been sexually harassed
    • Make sure committees are well-trained and well-staffed
    • Prepare a yearly report and turn it over to the state government

    The District Officer will also appoint a Nodal Officer who can receive complaints at a local level.

    Responsibilities of Higher Education Institutions

    Higher Education Institutions like colleges also must work to prevent sexual harassment. They have to:

    • Make sure their sexual harassment rules are similar to the rules of Indian law
    • Treat claims of sexual harassment seriously, punishing offenders harshly and making sure they face the proceedings required by law
    • Make sure staff and students know what to do and who to turn to if they are a victim of sexual harassment
    • Set up, train, and maintain an Internal Complaints Committee
    • Make sure that the campus is well-lit, secure, and safe
    • Prepare yearly status reports with case details and half-yearly reviews of how well sexual harassment policies are working

    Forming an Internal Complaints Committee

    Workplaces with more than 10 employees are required to set up a committee that specifically handles cases of Sexual Harassment. This is known as the Internal Complaints Committee. It must have:

    • A presiding officer, who is a woman employed at a senior level
    • Three students, if the matter involves students
    • One member from a non-government organisation or association committed to the cause of women, or a person familiar with sexual harassment issues. This member will be paid.
    • Women as at least half of its members
    • No person in senior administrative positions such as Vice-chancellor, Registrar, Dean, or head of department as a member
    • A three-year term for members. Higher education institutions may also employ a system where one-third of the members change every year

    If the presiding officer acts in violation of their powers, they will be removed and a new nomination will take place.

    The Internal Complaints Committee has to follow the regulations for taking complaints and making inquiries in a reasonable amount of time. The company or institution has to give the Internal Complaints Committee the things they need to make inquiries.

    Questions and Answers
    Click on a question to view the answer

    If you are responsible for the management, supervision, and control of the workplace then you will be understood as an employer under the law. This means you must work to prevent sexual harassment. Offices and employers can include:

    • Government offices, where an employer is usually the head of department. Sometimes, the government may decide that another person will be considered as the 'employer.'
    • Private offices, where an employer is any person who manages and is in charge of the office. This includes the board or committee making policies and putting them in place.
    • Any office, where a person is an employer according to their contract.
    • In a home, where the person or the house which hires a domestic worker. The type of the work and the number of workers do not matter.

    A member of the Internal Complaints Committee has to be removed from office if they:

    • Give any information about a sexual harassment case to the public
    • Have been convicted of a crime or are currently the subject of an inquiry themselves
    • Are found guilty in a disciplinary proceeding, or have disciplinary proceedings pending against them
    • Have abused their position in any way

    After a member is fired from the committee, the employer will have to find a new member to replace them.

    Yes. The Complaints Committee has the right to end the inquiry. Also, if either the victim or the accused is absent for three hearings in a row, the committee can make a decision and give an order. The Committee can only do this if it has given a 15-day notice to the to both the victim and the accused in writing.

    No. The current law only protects women who are sexually harassed in workplaces.

    No. You do not have to be employed at the workplace where sexual harassment happened to be able to file a complaint. If you visited a workplace where you are not an employee and were sexually harassed by someone at that workplace you can file a complaint with the Internal Complaints Committee of that workplace.

    Yes. the Act gives you a choice. You can deal with the offender within the office where the harassment took place, or in a court, or in both. If you wish, you can file a criminal complaint as well as a complaint to your Internal/Local Complaints Committee.

    Yes. A woman teacher/professor can file a case of sexual harassment against a student.

    Yes. Women customers/patrons of a store can file a case of sexual harassment against a store owner/manager.

    If flirting is unwelcome and makes you uncomfortable then it can be seen as sexual harassment.

    Yes. If a woman was in a relationship with a man but isn’t anymore, she can file a complaint against him if he has harassed her sexually at her workplace.

    Sexual harassment is a form of gender-based discrimination. Not all gender-based discrimination at a workplace is sexual harassment. To understand if your case of gender-based discrimination is sexual harassment please look at the explanations above. For more information please contact a lawyer.

    Yes. Being asked in a manner that makes you uncomfortable about your sexual orientation at a workplace can be sexual harassment.

    Glossary
    Settlement
    An official agreement to resolve a dispute.
    Compensation
    Anything of value, usually money, given by one person to another for the damage caused by the person to the other person.
    Inquiry
    An official investigation into an event after a complaint is filed.
    Proceedings
    An action or a series of events that take place following the rules of in a court of law or any authority resolving a dispute
    Appeal
    When someone is not happy with a decision of a lower court they can apply to a higher court to change the decision of the lower court.
    Gender Based Discrimination
    When someone shows a prejudice against you on the basis of you being a male or a female.
    Internal Complaints Committee
    A committee set up by an employer with more than 10 employees. This committee handles cases of Sexual Harassment at the workplace, and is made up of a presiding officer who must be a woman (preferably a senior employee), two other employees, and one person from a women’s issues NGO. At least half the members of the Internal Complaints Committee must be women. Each member can hold their position for only three years.
    Local Complaints Committee
    A committee set up by the District Officer that will receive and hear complaints at places where an Internal Complaints Committee has not been set up. This could be because the workplace has less than 10 workers or if the complaint is against the employer himself. The District Officer has to appoint nodal officers who will forward complaints to Local Complaints Committees within seven days.
    Conciliation
    A mutual agreement between parties to settle a problem between themselves, peacefully.
    Service rules
    Every place of work or institution has rules and regulations to be followed by the employees. These are usually called as service rules.