Considering the
present scenario, it is important for all HR professionals to understand and
have knowledge of guidelines to be followed in sexual harassment cases at
workplace
Vishaka Guidelines
Against Sexual Harassment
at Workplace
Guidelines and norms laid
down by the Hon’ble Supreme Court in Vishaka and Others Vs. State of Rajasthan
HAVING REGARD to the definition of ‘human
rights’ in Section 2 (d) of the
Protection of Human Rights
Act, 1993,
TAKING NOTE of the fact that the
present civil and penal laws in India
It is necessary and
expedient for employers in work places as well as other responsible persons or
institutions to observe certain guidelines to ensure the prevention of sexual
harassment of women.
Duty of the Employer or
other responsible persons in work places and other institutions
It shall be the duty of the
employer or other responsible persons in work places or other institutions to
prevent or deter the commission of acts of sexual harassment and to provide the
procedures for the resolution, settlement or prosecution of acts, of sexual
harassment by taking all steps required.
Definition
For this purpose, sexual
harassment includes such unwelcome sexually determined behaviour (whether
directly or by implication) as:
a) Physical contact and
advances;
b) A demand or request for
sexual favours;
c) Sexually coloured
remarks;
d) Showing pornography;
e) Any other unwelcome
physical, verbal or non-verbal conduct of sexual nature
Where any of these acts is
committed in circumstances where-under the victim of such conduct has a
reasonable apprehension that in relation to the victim’s employment or work
whether she is drawing salary, or honorarium or voluntary, whether in
government, public or private enterprise such conduct can be humiliating and
may constitute a health and safety problem. It is discriminatory for instance
when the woman has reasonable grounds to believe that her objection would
disadvantage her in connection with her employment or work including recruiting
or promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the conduct in
question or raises any objection thereto.
Preventive Steps
All employers or persons in
charge of work place whether in public or private sector should take
appropriate steps to prevent sexual harassment. Without prejudice to the generality
of this obligation they should take the following steps:
A. Express prohibition of
sexual harassment as defined above at the work place should be notified,
published and circulated in appropriate ways.
B. The Rules/Regulations of
Government and Public Sector bodies relating to conduct and discipline should
include rules/regulations prohibiting sexual harassment and provide for
appropriate penalties in such rules against the offender.
C. As regards private
employers, steps should be taken to include the aforesaid prohibitions in the
standing orders under the Industrial Employment (Standing Orders) Act,
1946.
D. Appropriate work
conditions should be provided in respect of work, leisure, health and hygiene
to further ensure that there is no hostile environment towards women at work places
and no employee woman should have reasonable grounds to believe that she is
disadvantaged in connection with her employment.
Criminal Proceedings
Where such conduct amounts
to a specific offence under the Indian Penal
Code or under any other
law, the employer shall initiate appropriate action in accordance with law by
making a complaint with the appropriate authority.
In particular, it should
ensure that victims or witnesses are not victimized or discriminated against
while dealing with complaints of sexual harassment.
The victims of sexual
harassment should have the option to seek transfer of the perpetrator or their
own transfer.
Disciplinary Action
Where such conduct amounts
to misconduct in employment as defined by the relevant service rules,
appropriate disciplinary action should be initiated by the employer in
accordance with those rules.
Complaint Mechanism
Whether or not such conduct
constitutes an offence under law or a breach of the service rules, an
appropriate complaint mechanism should be created in the employer’s
organisation for redress of the complaint made by the victim.
Such complaint mechanism
should ensure time bound treatment of complaints.
Complaints Committee
The complaint mechanism,
referred to above, should be adequate to provide, where necessary, a Complaints
Committee, a special counsellor or other support service, including the
maintenance of confidentiality.
The Complaints Committee
should be headed by a woman and not less than half of its member should be
women. Further, to prevent the possibility of any undue pressure or influence
from senior levels, such Complaints Committee should involve a third party,
either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee
must make an annual report to the Government department concerned of the
complaints and action taken by them. The employers and person in charge will
also report on the compliance with the aforesaid guidelines including on the
reports of the Complaints Committee to the Government department.
Worker’s Initiative
Employees should be allowed
to raise issues of sexual harassment at a workers’ meeting and in other
appropriate forum and it should be affirmatively discussed in Employer-Employee
Meetings.
Awareness
Awareness of the rights of
female employees in this regard should be created in particular by prominently
notifying the guidelines (and appropriate legislation when enacted on the
subject) in a suitable manner.
Third Party Harassment
Where sexual harassment
occurs as a result of an act or omission by any third party or outsider, the
employer and person in charge will take all steps necessary and reasonable to
assist the affected person in terms of support and preventive action.
The Central/State
Governments are requested to consider adopting suitable measures including
legislation to ensure that the guidelines laid down by this order are also
observed by the employers in Private Sector.
These guidelines will not
prejudice any rights available under the Protection of Human Rights Act, 1993.
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