Who sits on a Local Complaints Committee?
The Local Complaints Committee has:
- A woman Chairperson, a woman in the field of social work committed to the cause of women
- A woman who is working in the block, taluka, tehsil, ward or municipality.
- Two members, who are from NGOs/associations/persons committed to the cause of women or are familiar with issues of sexual harassment
- At least one of them should be a woman
- At least one of them must have a background of law or legal language
- An Ex-Officio member, who is an officer dealing with social welfare or women and child development in the district
Is gender-based discrimination the same as sexual harassment?
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.
Can a woman file a sexual harassment complaint against someone she was once in a relationship with?
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.
Can women customers/patrons of a store file a case of sexual harassment against store owner/manager?
Yes. Women customers/patrons of a store can file a case of sexual harassment against a store owner/manager.
Can a woman teacher/professor file a case of sexual harassment against a student?
Yes. A woman teacher/professor can file a case of sexual harassment against a student.
Am I allowed to go to the police and courts even if I file a complaint under this Sexual Harassment at the Workplace law?
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.
Can a man file a case of sexual harassment against another man or woman at the workplace?
No. The current law only protects women who are sexually harassed in workplaces. However, workplaces can have gender-neutral policies.
Can a member of the Internal Complaints Committee, which has been constituted to deal with sexual harassment at the workplace, be fired?
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.
What sort of offices are responsible for preventing sexual harassment?
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(( Section 2(g), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)):
- 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.
What’s the difference between sexual harassment and flirting?
If flirting is unwelcome and makes you uncomfortable then it can be seen as sexual harassment.(( Section 2(n), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
What to do if the organisation has not given the Internal complaints committee’s report on time and has delayed the delivery of the report?
It is the employer’s responsibility to ensure the timely submission of reports by ICC which are then made available to the concerned parties.(( Section 19, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If the employer fails to provide the report on time, he/she can be fined for 50,000 Rs.(( Section 21, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)). In case there is a delay in the delivery of the investigation report, a complaint can be taken to the Appellate authority prescribed under the service rules of your establishment. In case, there are no service rules, an appeal can be taken to the authority as mentioned in the internal policy of your establishment. If you are dissatisfied with the order of this Authority, you can take the matter to the court with the help of a lawyer.
Can a Internal Complaints Committee make a decision about a sexual harassment case without the victim or the accused person being present?
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 both the victim and the accused in writing.
What can you do regarding a biased investigation by the Internal Complaints Committee?
Workplaces with more than 10 employees are required to set up an Internal Complaints Committee that specifically handles cases of sexual harassment. If you face sexual harassment at your workplace, you can submit a written complaint to the Committee.(( Section 9, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
The composition of the Committee and the distribution of members is meant to ensure that the investigation is not biased. The members of the Committee(( Section 4(2), Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) must include:
- A presiding officer, who is a woman employed at a senior level. If the presiding officer acts in violation of her powers, she will be removed and a new nomination will take place.
- At least two employees, preferably those who are committed to the cause of women or who have had experience in social work or have legal knowledge.
- 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.
At least half of the members of the Committee must be women.
If you feel that the existing Committee is biased, you can request the reconstitution of the Committee on the ground of bias. In this case, you need to establish that there is a real likelihood of bias. Mere apprehension would be insufficient for requesting the reconstitution of the Committee.(( Somaya Gupta v Jawaharlal Nehru University, https://indiankanoon.org/doc/36129445/))
During the investigation, the Committee has to follow certain regulations while making inquiries. If you have filed a complaint accusing another employee, both you and the accused have to be given an opportunity of being heard during the inquiry by the Committee. A copy of the Committee’s findings has to be made available to you and the person you have accused. This enables you to make a representation against the findings before the Committee.(( Section 11, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
Within 10 days after completing the inquiry, the Committee has to provide a report of its findings to the employer, and the report will be made available to both the complainant and the accused. The Committee may decide that your sexual harassment allegation against the accused has not been proved.(( Section 13, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.)) If you are not satisfied with this decision due to any reason including bias, you can appeal to the court.(( Section 18, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.))
If you are being sexually harassed at work and you don’t want to approach the Committee fearing bias etc., you also have an option to directly file a criminal complaint with the police.
Do I have to be employed at the workplace where sexual harassment happened, to be able to file a complaint?
If you are a working woman in any capacity, you will be protected from being subjected to sexual harassment at the workplace no matter the terms or conditions of employment, where you are employed or if you are simply visiting a place of work.
We understand your question to mean, ‘What does the law say about intercourse with employees in a fiduciary relationship?’ Based on this understanding, we can tell you that Section 376C of the Indian Penal Code speaks of sexual intercourse by a person in authority.
The law provides punishment for any person who abuses his position or fiduciary relationship (relationship of trust) to convince or seduce any woman to have sexual intercourse with him. The woman could be in his custody, under his charge or present in the premises. Please note that here, sexual intercourse does not refer to rape, which is dealt with as a separate offence under Section 375 of the Indian Penal Code.
The person who persuades the woman to have sexual intercourse could be:
- a) in a position of authority or in a fiduciary relationship; or
- b) a public servant; or
- c) superintendent or manager of a jail, remand home, other place of custody, or a women’s or children’s institution; or
- d) on the management or staff of a hospital.
In these cases, the person in authority can be punished with imprisonment for five to ten years, along with a fine.
Is whistling to a woman sexual harassment?
Yes, whistling at a woman on the street is a crime of sexual harassment. The punishment for making sexual gestures is jail time between minimum one year and maximum five years along with a fine.(( Section 354, Indian Penal Code, 1860.))
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