Module 3

MODULE 3
DEALING WITH A COMPLAINT

3.1 PROCEDURAL ASPECTS - COMPLAINT

THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE
(PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

3.1.1 Section 4 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013: ‘Constitution of Internal Complaints
Committee.

1. Every employer of a workplace shall, by an order in writing, constitute a
Committee to be known as the "Internal Complaints Committee":

Provided that where the offices or administrative units of the workplace are located
at different places or divisional or sub-divisional level, the Internal Committee shall
be constituted at all administrative units or offices.

2. The Internal Committee shall consist of the following members to be nominated
by the employer, namely:—

a. a Presiding Officer who shall be a woman employed at a senior level at
workplace from amongst the employees:

Provided that in case a senior level woman employee is not available, the Presiding
Officer shall be nominated from other offices or administrative units of the
workplace referred to in sub-section (l):

Provided further that in case the other offices or administrative units of the
workplace do not have a senior level woman employee, the Presiding Officer shall
be nominated from any other workplace of the same employer or other department
or organisation;

b. not less than two Members from amongst employees preferably committed to
the cause of women or who have had experience in social work or have legal
knowledge;

c. one member from amongst non-governmental organisations or associations
committed to the cause of women or a person familiar with the issues relating to
sexual harassment:

Provided that at least one-half of the total Members so nominated shall be women.

3. The Presiding Officer and every Member of the Internal Committee shall hold
office for such period, not exceeding three years, from the date of their nomination
as may be specified by the employer.

4. The Member appointed from amongst the non-governmental organisations or
associations shall be paid such fees or allowances for holding the proceedings of
the Internal Committee, by the employer, as may be prescribed.

5. Where the Presiding Officer or any Member of the Internal Committee,- -

a. contravenes the provisions of section 16; or

b. has been convicted for an offence or an inquiry into an offence under any law
for the time being in force is pending against him; or

c. he has been found guilty in any disciplinary proceedings or a disciplinary
proceeding is pending against him; or

d. has so abused his position as to render his continuance in office prejudicial to
the public interest, such Presiding Officer or Member, as the case may be, shall be
removed from the Committee and the vacancy so created or any casual vacancy shall
be filled by fresh nomination in accordance with the provisions of this section.

Section 4 of the Act requires all workplaces employing ten or more workers to
establish an Internal Complaints Committee ("ICC"). The ICC must consist of at
least four members under the Chairpersonship of a senior woman employee and must
also include two members from amongst the employees preferably committed to the
cause of women or with experience in social work or legal knowledge and includes
a third party member, preferably affiliated with a non-governmental organization.
Employers who fail to comply will be punished with a fine that may extend to Rs.
50,000.

3.1.2 Section 6 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013: ‘Constitution and jurisdiction of Local
Complaints Committee-

1. Every District Officer shall constitute in the district concerned, a committee to
be known as the "Local Complaints Committee" to receive complaints of sexual
harassment from establishments where the Internal Complaints Committee has not
been constituted due to having less than ten workers or if the complaint is against
the employer himself.

2. The District Officer shall designate one nodal officer in every block, taluka and
tehsil in rural or tribal area and ward or municipality in the urban area, to receive

complaints and forward the same to the concerned Local Complaints Committee
within a period of seven days.

3. The jurisdiction of the Local Complaints Committee shall extend to the areas
of the district where it is constituted.’

3.1.3 Section 7 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013: ‘Composition, tenure and other terms and
conditions of Local Complaints Committee-

1. The Local Complaints Committee shall consist of the following members to be
nominated by the District Officer, namely:-—

a. a Chairperson to be nominated from amongst the eminent women in the field
of social work and committed to the cause of women;

b. one Member to be nominated from amongst the women working in block, taluka
or tehsil or ward or municipality in the district;

c. two Members, of whom at least one shall be a woman, to be nominated from
amongst such non-governmental organisations or associations committed to the
cause of women or a person familiar with the issues relating to sexual harassment,
which may be prescribed:

Provided that at least one of the nominees should, preferably, have a background in
law or legal knowledge:

Provided further that at least one of the nominees shall be a woman belonging to the
Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or
minority community notified by the Central Government, from time to time;

d. the concerned officer dealing with the social welfare or women and child
development in the district, shall be a member ex officio.

2. The Chairperson and every Member of the Local Committee shall hold office
for such period, not exceeding three years, from the date of their appointment as
may be specified by the District Officer.

3. Where the Chairperson or any Member of the Local Complaints Committee- —

e. contravenes the provisions of section 16; or

f. has been convicted for an offence or an inquiry into an offence under any law
for the time being in force is pending against him; or

g. has been found guilty in any disciplinary proceedings or a disciplinary
proceeding is pending against him; or

h. has so abused his position as to render his continuance in office prejudicial to
the public interest, such Chairperson or Member, as the case may be, shall be
removed from the Committee and the vacancy so created or any casual vacancy shall
be filled by fresh nomination in accordance with the provisions of this section.

4. The Chairperson and Members of the Local Committee other than the Members
nominated under clauses (b) and (d) of sub-section (1) shall be entitled to such fees
or allowances for holding the proceedings of the Local Committee as may be
prescribed.’

As per section 6 and section 7, in every district, a public official called the District
Officer will constitute a committee known as the ‘Local Complaints Committee’
(LCC) to receive complaints against establishments where there is no Internal
Complaints Committee or there being a complaint against the employer himself.

The Act does not outline a deadline for the creation of ICCs. However, employers
should develop an ICC in each of their workplaces as soon as possible to avoid
penalties for non-compliance.

3.1.4 Section 9 of The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013: ‘Complaint of sexual
harassment-

1. Any aggrieved woman may make, in writing, a complaint of sexual harassment
at work place to the Internal Committee if so constituted, or the Local Committee,
in case it is not so constituted, within a period of three months from the date of
incident and in case of a series of incidents, within a period of three months from
the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding
Officer or any Member of the Internal Committee or the Chairperson or any Member
of the Local Committee, as the case may be, shall render all reasonable assistance
to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local
Committee may, for the reasons to be recorded in writing, extend the time limit not
exceeding three months, if it is satisfied that the circumstances were such which
prevented the woman from filing a complaint within the said period.

2. Where the aggrieved woman is unable to make a complaint on account of her
physical or mental incapacity or death or otherwise, her legal heir or such other
person as may be prescribed may make a complaint under this section.’

Section 9 requires that a complaint of sexual harassment be filed within three months
of the date of the incident. This may be extended for another three months if the

woman can prove that grave circumstances prevented her from filing at an earlier
time although "grave" is not defined within the Act.

3.1.5 Section 14 of The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013: Punishment for false or
malicious complaint and false evidence-

1. Where the Internal Committee or the Local Committee, as the case may be,
arrives at a conclusion that the allegation against the respondent is malicious or the
aggrieved woman or any other person making the complaint has made the complaint
knowing it to be false or the aggrieved woman or any other person making the
complaint has produced any forged or misleading document, it may recommend to
the employer or the District Officer, as the case may be, to take action against the
woman or the person who has made the complaint under sub-section (I) or sub-
section (2) of section 9, as the case may be, in accordance with the provisions of the
service rules applicable to her or him or where no such service rules exist, in such
manner as may be prescribed:

Provided that a mere inability to substantiate a complaint or provide adequate proof
need not attract action against the complainant under this section:

Provided further that the malicious intent on part of the complainant shall be
established after an inquiry in accordance with the procedure prescribed, before
any action IS recommended.

2. Where the Internal Committee or the Local Committee, as the case may be,
arrives at a conclusion that during the inquiry any witness has given false evidence
or produced any forged or misleading document, it may recommend to the employer
of the witness or the District Officer, as the case may be, to take action in accordance

with the provisions of the service rules applicable to the said witness or where no
such service rules exist, in such manner as may be prescribed.

Section 14 states that in case of false complaints (backed by forged documents
submitted by the complainant or a malicious intent, which needs to be proved), an
action will be taken as per the service rules of the organization. Further, it states that
if the complaint cannot be substantiated, it will not attract any action.

3.2 FIRST INFORMATION REPORT

First Information Report or FIR is the very first written reporting of commission of
a crime.

3.2.1 SECTION 154 CRPC: "Information in cognizable cases. -

(1) Every information relating to the commission of a cognizable offence, if given
orally to an officer in charge of a police station, shall be reduced to writing by him
or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be
signed by the person giving it, and the substance thereof shall be entered in a book
to be kept by such officer in such form as the State Government may prescribe in this
behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given
forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police
station to record the information referred to in sub- section (1) may send the
substance of such information, in writing and by post, to the Superintendent of Police
concerned who, if satisfied that such information discloses the commission of a

cognizable offence, shall either investigate the case himself or direct an investigation
to be made by any police officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an officer in charge of the police
station in relation to that offence.''

FIR is recorded under section 154 of the CrPC. It is a mandatory condition for the
police to register an FIR the moment a person reports a crime which discloses a
cognizable offence to the police. FIR can be registered either on a written or verbal
statement of the complainant which is later reduced in writing by a police officer
and is signed by the complainant. If the complaint does not disclose any offence or
it discloses only a non-cognizable offence, then FIR cannot be registered. As sexual
harassment would come under cognizable offence, hence it is obligatory for the
police to register an FIR.

If a police officer refuses to register the FIR, the aggrieved person can send a
complaint by registered post to the Assistant Commissioner of Police or Deputy
Commissioner of Police of that district under whose jurisdiction that police station
falls. After sending the complaint, it is the duty of the DCP to register an FIR if it
fulfils the required conditions.

3.2.2 Section 190 CRPC: ‘Cognizance of offences by Magistrates -

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and
any Magistrate of the second class specially empowered in this behalf under sub-
section (2), may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon

his own knowledge, that such offence has been committed

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class

to take cognizance under sub-section (1) of such offences as are within his

competence to inquire into or try.’

After exhausting this option, even if the FIR is not recorded, then a complaint before

the Metropolitan Magistrate can be filed or an RTI or a complaint to the State Home

Ministry can be filed.

One has to be careful while lodging an FIR. Lodging of a false FIR is punishable

under the IPC. Such an informant/complainant can be proceeded against under

section 182 IPC1 or under section 211 IPC2 or under section 177 IPC3 by the police.

3.2.3 EVIDENTIARY VALUE OF FIR

1 S 182 IPC- False information with intent to cause a public servant to use his power to the injury of another
person.
'Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to
cause, or knowing it to be likely that he will thereby cause, such public servant -
(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which
such information is given were known by him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any person.
shall be punished with imprisonment of either description for a term which may extend to six months, or with fine
which may extend to one thousand rupees, or with both.
2 S 211 IPC- False charge of offence made with intent to injure.
'Whoever, with intent to cause injury to any person, Institutes or causes to be instituted any criminal proceeding against
that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful
ground for such proceeding or charge against that person, shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or with both.
And if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for
life or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to fine'.
3 177 IPC. Furnishing false information: 'Whoever, being legally bound to furnish information on any subject to
any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to
be false, shall be punished with simple imprisonment for a term which may extend to six months.' or with fine which
may extend to one thousand rupees, or with both.
Or, if the information which he is legally bound to give respects the commission of an offence, or is required for the
purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with imprisonment
of either description for a term which may extend to two years, or with fine, or with both".

FIR is not a piece of substantive evidence. It can be used only for limited purposes,
like corroborating under section 1574 of the Evidence Act or contradicting (cross-
examination under section 145 of Evidence Act) the maker thereof, or to show that
the implication of the accused was not an after-thought. It can also be used under
section 85 and section 116 of the Evidence Act. The FIR cannot be used for the
purposes of corroborating or contradicting or discrediting any witness other than the
one lodging the FIR. It cannot be used for corroborating the statement of a third
party. If the FIR is of a confessional nature, it cannot be proved against the accused-
informant, because according to section 257 of the Evidence Act, no confession made
to a police officer can be proved as against a person accused of any offence. But it
might become relevant under section 8 of the Evidence Act.

3.3 CIVIL SUIT

3.3.1 Section 9 of CPC:

4 S 157 Evidence Act- Former statements of witness may be proved to corroborate later testimony as to the
same fact.-In order to corroborate the testimony of a witness, any former statement made by such witness relating to
the same fact at or about the time when the fact took place, or before any authority legally competent to investigate
the fact, may be proved.
5 S 8, Evidence Act- Motive, preparation and previous or subsequent conduct.-Any fact is relevant which shows
or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding,
or in
reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the
subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact,
and whether it was previous or subsequent thereto.
6 S 11, Evidence Act- When facts not otherwise relevant become relevant.-Facts not otherwise relevant are
relevant--
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable.
7 S 25, Evidence Act- Confession to police-officer not to be proved.-No confession made to a police-officer, shall
be proved as against a person
accused of any offence.

‘Courts to try all civil suits unless barred: The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.

Explanation I: A suit in which the right to property or to an office is contested is a
suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not such
office is attached to a particular place.’

Section 9 of the Civil Procedure Code gives jurisdiction to the courts to decide cases
of civil nature unless the jurisdiction is barred. Sexual harassment, being of civil
nature, is not barred from being tried before a civil court. A civil suit can be filed in
any court within a prescribed time limit.

3.4 AN ANALYSIS

The proverb ‘an idle mind is a devil’s workshop’ seems to be untrue in today’s
world. Today, even the busiest people at the workplace indulge themselves in crime.
Sexual harassment is one such example. Sexual harassment is about power,
supremacy, and desire to control. It stems from a sense of entitlement and impunity
that the aggressor harbours.

The determination of what constitutes sexual harassment varies with circumstances.
Section 2 of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (hereinafter the Act) defines it as ‘any one or
more of the following unwelcome acts or behaviour (whether directly or by
implication) namely:

i. Physical contact or advances;
ii. A demand or request for sexual favors;
iii. Making sexually colored remarks;
iv. Showing pornography;

Any other unwelcome physical, verbal or non-verbal conduct of sexual nature;’

In the workplace, some activities that constitute sexual harassment can be:

● Jokes causing or likely to cause awkwardness or embarrassment,
● Unwelcome sexual overtone in any manner such as over telephone (obnoxious

telephone calls)
● Innuendos and taunts,
● Gender based insults or sexist remarks,
● Displaying pornographic or other offensive or derogatory pictures, cartoons,

pamphlets or sayings,
● Unsavoury remarks,
● Forcible physical touch or molestation
● Touching or brushing against any part of the body
● Eve-teasing,
● Physical confinement against one's will and any other act likely to violate

one's privacy.

Vishaka v. State of Rajasthan8 was Indian judiciary’s first pronouncement on gender
justice in the workplace. The court prescribed certain guidelines as minimum
standards to be followed by the employers, employees and other responsible persons

8 AIR 1997 SC 3011.

dealing with sexual harassment. Finally, in 2013, the legislature enacted the law on
prevention of sexual harassment against female employees at the workplace.

The Act has a wide scope and covers the organized as well as the unorganized sector.
The definition of workplace includes:

● government bodies,
● educational institutes,
● organisations carrying on commercial, vocational, educational, entertainment,

industrial, financial activities,
● private and public sector organisations,
● hospitals and nursing homes,
● sports institutions and stadiums used for training individuals.
● non-governmental organisations,
● the places visited by employees during the course of employment or for

reasons arising out of employment - including transportation provided by the
employer for the purpose of commuting to and from the place of employment.

An employee is anyone working for a particular employer. Whether they are:

● temporary,
● individuals engaged on daily wage basis, either directly or through an agent
● regular,
● contract labor,
● probationers,
● ad hoc employees,
● trainees,
● co-workers,

● apprentices, with or without the knowledge of the principal employer, whether
for remuneration or not, working on a voluntary basis or otherwise, whether
the terms of employment are express or implied.

As more women enter the workforce- once a male-dominated zone- policies at the
workplace are undergoing changes. Today, most workplaces have explicitly
declared zero tolerance for sexual-harassment at the workplace in their policies
applicable to employees. Living with dignity (Article 21) includes the right to work
with dignity. But how does one deal with sexual harassment complaints? What are
the steps involved? What is the redressal mechanism?

Even after learning the definition of sexual harassment, many people still find
themselves asking what kind of behaviour isn’t sexual harassment. For example: Is
it okay to hold a door open for a woman? Will I get in trouble if I compliment
someone on their clothing or their new hair style? Is telling an off-colour joke
considered sexual harassment?

Are the incidents actually reported? Unfortunately, the answer is no. In most cases,
it goes unreported and the victim quits the job. A major reason for this is the tendency
of the victim to blame themselves for the misconduct of the aggressor. Whenever a
newcomer joins their first job, they are told that this kind of complaint will spell an
end for their career before it even begins and that it is possible that such an incident
on their resume will render them un-hireable. Eventually, they have no choice but to
think again if they are willing to pay such a price.9

9 ‘Why filing a complaint against sexual harassment is tough’ (November 2013)

<http://www.livemint.com/Leisure/voJULKBkc67HqUDzFEPS4J/Why-filing-a-complaint-against-sexual-
harassment-is-tough.html>

What should an employee do if such a thing happens with them? There can be two
reasons for not filing or filing late complaint-

● Lack of adequate knowledge- Newcomers generally are mostly concerned
about their job position, compensation, job description, colleagues, location
of the office etc. Only few are concerned about the policies of the workplace.
They may be naive to think that such a situation will not arise with them. This
may lead to ignorance about the organisation’s POSH policy.

● Even after adequate knowledge and means at their disposal, the employee
faces a lot of pressure before filing a complaint as to what consequences they
might face. For example- if the aggressor is at a high position in the
organisation, the victim will think about their career, the pressure of the ordeal
on their family.

3.4.1 COMPLAINT

The people involved in an organisation are responsible for maintaining a work
environment that is free from hostility. The most effective weapon against sexual
harassment is prevention. Harassment does not disappear on its own. In fact, it is
more likely that when the problem is not addressed, the harassment will worsen and
become more difficult to remedy as time goes on.

An employer may respond to a claim of employee sexual harassment in different
ways:10

10 Scott F. Uhler and Rinda Y. Allison ‘Investigating Sexual Harassment Complaints Part I: General Considerations’
<http://www.lib.niu.edu/1997/il9703110.html>

Example 1: A female employee complains that her supervisor sexually harassed her
by playing with her hair, hugging her from behind. She makes a complaint to her
supervisor's boss and asks for reassignment. The boss responds, "Well, I have to be
fair to him, too," does not reassign the employee and appears to take no action. The
supervisor's harassment continues and intensifies, and the employee sues. The court
found that if the harassment is proven, not only will the employer be held liable, but
the supervisor and his boss may also be held individually liable.11

Example 2: A female employee was harassed by a co-worker who frequently made
comments of a sexual nature to her. He said to her one day when she had an upset
stomach that she was "screwing around" with her boss so much she was probably
pregnant. He repeated that comment to other employees and said to a group of
employees talking about a baseball pool that the female could pay for her bet "in
trade." The female complained to her supervisor, who told her to ignore the co-
worker because he was just a barroom bully. The supervisor did forward the
complaint and within 10 days, a meeting was held with the female, the supervisor
and others. It was agreed that management would insure that the co-worker stayed
away from the female (he did) and a memo would be issued to all employees
regarding management's policy against sexual harassment. The court found this a
reasonable and effective response, which protected the organisation from liability
for sexual harassment.12

To file a complaint, the organisations should have a good complaint procedure. What
is a good complaint procedure can be decided on following basis:13

11 Icampo v. Hasbro, Inc., 929 F. Supp. 562 (D.R.I. 1996).
12 McKenzie v. I.D.O.T., 92 F.3d 473 (7th Cir. 1996).
13 Complaint procedures - Effectively preventing and responding to sexual harassment: A Code of Practice for
Employers (2008) <https://www.humanrights.gov.au/publications/chapter-7-complaint-procedures-effectively-
preventing-and-responding-sexual-harassment>

- It should convey the message that the organisation takes sexual harassment
seriously

- It should and can prevent escalation of a case and maintain positive
workplace relationships

- It should ensure that complaints are dealt with consistently and in a timely
manner

- It should reduce the likelihood of external agency involvement which can
be time consuming, costly and damaging to public image

- It should alert an organisation to patterns of unacceptable conduct and
highlights the need for prevention strategies in particular areas

- It should reduce the risk of an employer being held liable under the Sex
Discrimination Act and other anti-discrimination laws

- It should help to minimise the harm suffered by the person harassed
- It should reduce the risk of the employer being held to have treated the

alleged harasser unfairly, such as in an unfair dismissal claim.

The victim should review the company policies. The law makes it mandatory for
every organization to have an internal complaints committee at all administrative
units and offices, employing at least 10 employees.

Complaints Committee as per the law: The complaint mechanism, referred 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 members 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.

3.4.2 COMPLAINT CELL IN WORKPLACE:

There are a few steps that the organisation can keep in mind while making a
complaint cell. These are14:

1. Appoint a committee: This committee should consist mostly of female members
and few male members who have been well mentored for their roles and
responsibilities. It would be good if a counsellor could also be hired exclusively to
help in devising company policies for sexual harassment.

2. Make it autonomous: The functioning of the committee must be made autonomous
so that no bias, prejudice, or even favouritism could arise while dealing with issues
of sexual harassment. The autonomy would also help the cell to make quicker
decisions and to resolve issues.

3. Dedicate separate physical premises to the cell’s functions: Typically, the sexual
harassment cell must have its own separate presence in the office wherein the records
of employees, their emergency contact numbers, addresses, blood groups and other
relevant information could be maintained meticulously while also being easily
available. If transport facility is provided by the company, then the details of the
drivers and the routes taken by them must also be recorded and updated frequently.

14 ‘How to Implement a Sexual Harassment Complaints Cell’ <http://smallbusinessindia.intuit.in/general/how-to-
implement-a-sexual-harassment-complaints-cell/>

4. Mission and vision to be drafted: The statement of purpose and vision of the sexual
harassment cell needs to be framed based on the governmental and social guidelines.
Furthermore, it must be clearly elucidated and communicated to all the employees.

5. Orientation session to be conducted for all new recruits and existing members:
This introductory session must seek to work on recognizing the problem of sexual
harassment, what constitutes sexual harassment, how to deal with it while also
talking about the measures the company takes in taking care of people in such cases.

6. Periodic meetings between the committee and the staff: There must be a periodic
discussion between the committee members and employees over the safety and
security issues that they face and how best that they could be tackled.

7. Women development and training sessions to be held: The women harassment cell
could also conduct sessions for women employees to be more confident and to
counsel them to not have any stigma attached from reporting a case of sexual
harassment, in case if they face one. It would also be an innovative venture for the
company to have periodic classes on self-defence for its women employees or some
female centric events.

Any aggrieved employee shall make in, in writing, a complaint of sexual harassment
at workplace to the Internal Complaints Committee within a period of three months
from the date of the incident and in case of a series of incidents, within a period of
three months from the date of the last incident.15 The complainant should do so as
soon as possible after the incident occurs. As time passes, it may become more
difficult to investigate and resolve complaints.

15 Section 9 of the Act.

Apart from this, the Act correspondingly requires the government to set up a 'Local
Complaints Committees' at the district level to investigate complaints regarding
sexual harassment from establishments where the ICC has not been constituted on
account of the establishment having less than 10 employees or if the complaint is
against the employer. The Sexual Harassment Act also sets out the constitution of
the committees, process to be followed for making a complaint and inquiring into
the complaint in a time bound manner.

The complaint by the victim can be in the form of an informal or formal complaint.

Informal Complaint: An informal report is appropriate when the parties desire to
resolve the situation cooperatively. Informal reports may be appropriate for
responding to anonymous reports and/or third party reports16. A complaint will be
handled informally when a complainant prefers that informal actions be taken to stop
the harassment at the earliest possible stage instead of requesting an investigation
into his/her case. In general, informal action may be suitable for minor and single
incidents of sexual harassment but not for more serious and repeated acts of sexual
harassment.

On receiving an informal complaint of sexual harassment, the committee should take
preventive or remedial measures to address the situation as soon as possible. For
example, to communicate with the alleged harasser on behalf of the
complainant, pointing out that his/her behaviour is deemed unwelcome and should
be stopped. Such informal action can be particularly useful when the party
concerned does not realize that certain behaviour is offensive to the recipient.

16 ‘Harassment and Discrimination Complaint Process’ <https://www.lanecc.edu/copps/documents/harassment-
and-discrimination-complaint-process>

If the matter is sorted, then a written report should be submitted by the committee.
The report can be used to:

1. Give detailed information to the organisation about the incident, harasser and the
victim.

2. For record-keeping purposes

If the matter is not resolved, a formal complaint can be requested and pursued.

Formal Complaint: If the harassment continues, or where serious harassment
occurs, the victim should bring a formal complaint. If the victim chooses to proceed
formally, they should submit a written application to the committee. The committee
should then order an official enquiry. The application should mention details about
the victim like name, address, telephone number etc., a detailed description of the
conduct that the reporting party alleges to be harassing; name(s) of the person against
whom the complaint is being made; and the name(s) of witnesses (if any).

If this doesn’t solve the problem, then an FIR can be lodged against the harasser.
The police will investigate and take action with the organization to provide a remedy.
Also, 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.

3.4.3 PROCEDURE TO FILE FIR (FIRST INFORMATION REPORT)

An FIR should have the following details-17

17 ‘REPORT STREET HARASSMENT : TAKING LEGAL ACTION’
<http://blog.blanknoise.org/2005/04/i-was-eve-teased-taking-legal-action.html>

1) a detailed description of the incident- date, time, place included.

2) If the accused is known- then his name and address. If not, as close a description
as far as possible.

3) It must also be stated exactly what happened.

When all the options have been exhausted, then a civil lawsuit can be filed
independently against the harasser. The company can also be made a party to the
suit, applying the rules of vicarious liability.

After exhausting the above remedies, this is the last remedy that should be sought.
Filing a claim in the court of law requires the complainant to be prepared with few
things that can be used as evidence against the alleged harasser.

● Do a research, and make sure the incident counts as unlawful harassment.
● File the claim as soon as possible.
● Keep detailed, accurate records of the event.
● Cooperate fully with the committee’s investigation.
● Contact a proper lawyer to handle the case.

Women who face sexual harassment in the Supreme Court can also e-mail, post
complaints to the Supreme Court Sexual Harassment Cell. The committee set up in
the Supreme Court to deal with instances of sexual harassment within its precincts
decided that aggrieved women can send their complaints to it by post or e-mail. “The
aggrieved women as defined in clause 2(a) of the Gender Sensitisation and Sexual
Harassment of Women at the Supreme Court of India (Prevention, Prohibition and
Redressal) Regulations, 2013 may make a complaint in writing to the GSICC
through its Member Secretary.” This has been done to sensitise the general public
on gender issues.

The complaint shall be sent either by registered post, courier, speed post or e-mail.
It can also be handed over personally at the given address.

3.4.4 APPROACH BY DIFFERENT COUNTRIES18

The burden of preventing sexual harassment in the workplace rests primarily on the
employer. In the United States, Canada, South Africa, India and in some European
Union Member States, employers are required or encouraged by law to take steps to
prevent and correct sexual harassment in the workplace. These steps include the
following:

● the development and publication of an anti-sexual harassment policy,

● the maintenance of an effective sexual harassment complaint mechanism,
investigative process, record keeping system, and

● the screening, training and monitoring of supervisors and managers,
specifically, and employees in general.

EUROPEAN UNION APPROACH

The EU Code of Practice on Measures to Combat Sexual Harassment (adopted in
1992) recognizes that "a procedure to deal with complaints of sexual harassment
should be regarded as only one component of a strategy to deal with the problem.
The prime objective should be to change behaviour and attitudes, to seek to ensure
the prevention of sexual harassment."19

18 ‘Employer Responsibilities: Sexual Harassment Policies, Trainings and Complaint Procedures’
<http://www.stopvaw.org/employer_responsibilities_sexual_harassment_policies_trainings_and_complaint_proc
edures>
19 From EU Code of Practice on Measures to Combat Sexual Harassment included in “Commission Recommendation
of 27 November 1991” on the protection of the dignity of women and men at work, Official Journal L 049, 1-8 (24
February 1992).

UNITED STATES APPROACH

In regulations adopted under Title VII of the Civil Rights Act of 1964, the United
States Equal Employment Opportunity Commission has stated that "prevention is
the best tool for the elimination of sexual harassment. An employer should take all
steps necessary to prevent sexual harassment from occurring, such as affirmatively
raising the subject, expressing strong disapproval, developing appropriate sanctions,
informing employees of their right to raise and how to raise the issue of harassment
under title VII, and developing methods to sensitize all concerned."20

United States law also allows employers to establish an affirmative defense to certain
sexual harassment claims in part by taking the steps outlined above. In particular, an
employer may establish an affirmative defense to an allegation of harassment by a
supervisor that creates an unlawful hostile environment by demonstrating that (1)
"the employer exercised reasonable care to prevent and correct promptly any
harassment" and (2) that "the employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer or to avoid harm
otherwise".21

An employer's establishment and implementation of a sexual harassment policy and
complaint, investigation and training procedures can be considered evidence that a
employer has exercised its duty of preventive care.22

CANADA'S APPROACH

20 From 29 Code of Federal Regulations Ch. XIV (7-1-00 Edition), Section 1604.11 Sexual Harassment.
21 See Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S.Ct. 2275
(1998); and Law and Policy: Domestic Laws.
22 See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors No.
915.002, 11-18 (June 18, 1999).

Division XV.1 of the Canadian Labour Code requires employers to establish a policy
statement on sexual harassment which must include the following:

● a definition consistent with the labour code's definition of sexual harassment,

● a statement to the effect that every employee is entitled to employment free of
sexual harassment,

● a statement to the effect that the employer will take such disciplinary measures
as the employer deems appropriate against any person under the employer's
direction who subjects any employee to sexual harassment,

● a statement explaining how complaints of sexual harassment may be brought
to the attention of the employer,

● a statement to the effect that the employer will not disclose the name of a
complainant or the circumstances related to the complaint to any person
except where disclosure is necessary for the purposes of investigating the
complaint or taking disciplinary measures in relation thereto; and

● a statement informing employees of the discriminatory practices provisions of
the Canadian Human Rights Act that pertain to rights of persons to seek
redress under that Act in respect of sexual harassment.

SWEDEN'S APPROACH

Under Sweden's Equal Opportunities Act, 1991, Section 6, employers have a duty
to prevent sexual harassment from occurring in the workplace. In addition to giving
employers a duty to prevent sexual harassment from occurring, Swedish law also

requires employers to investigate the incidence of sexual harassment in their
workplaces.23

GERMANY'S APPROACH

In Germany, the employer has a duty of care to make sure the employee does not get
hurt at work. Within this duty of care, the employer also has a duty to guarantee
employees will not experience harassment at work24.

FRANCE'S APPROACH

The French Labor Code requires employers to provide an employee handbook
forbidding moral harassment.25

SOUTH AFRICA'S APPROACH

In South Africa, the Employment Equity Act requires that employers create and
implement an employment equity plan which addresses sexual harassment.26

UNITED KINGDOM APPROACH

In the United Kingdom, the Employment Appeal Tribunal in Canniffe v. East Riding
of Yorkshire Council27 decided that the proper approach lower tribunals should take
when deciding on employer liability for sexual harassment was firstly, to identify
whether any preventative steps had been taken by the employer and having done so,
to go on, secondly, to consider what further steps the employer could have taken

23 From Sweden, Equal Opportunities Act, 1991, Section 22.
24 From Friedman and Whitman, The European Transformation of Harassment Law: Discrimination Versus Dignity, 9
Colum. J. Eur. L. 241, 255 Spring 2003.
25 From France, Labor Code (Code de Travail), Art. 122-34 and 230-2; Friedman and Whitman, The European
Transformation of Harassment Law: Discrimination Versus Dignity, 9 Colum. J. Eur. L. 241, 261 Spring 2003.
26 From Employment Equity Act 55, 1998 Section 20(1).
27 (2000, IRLR 555, EAT)

which were reasonably practicable. This decision was made in a sexual harassment
and assault case in which the lower tribunal held that "by having disciplinary
grievance and personal harassment policies in place, which had been drawn to the
attention of all employees, the Council had discharged its liability as it had taken all
practicable and reasonable steps possible to prevent sexual harassment happening at
work." The lower tribunal had not considered what further steps the Council could
have taken. Thus, in the United Kingdom, employers may be required to take
reasonable steps to prevent harassment beyond establishing a grievance and
harassment policy.

Suggestions for Employer Action

Requiring or encouraging employers to take measures to prevent sexual harassment
is one way in which a government can demonstrate that it is taking "appropriate
measures to eliminate discrimination against women by any person, organization or
enterprise" as is required under the Convention on the Elimination of all Forms of
Discrimination Against Women.

Many governments and non-governmental organizations have recommended that
specific sexual harassment policies, trainings and complaint procedures be approved
and implemented by employers.

In general these recommendations have focused on the following principal elements:
1) A Statement of Policy; 2) Definition of Harassment and Establishment of a Non-
retaliation Policy, 3) Prevention Procedures/Training, 4) Designated Complaints
Committee or Officer, 5) Informal Complaint or Advice Mechanisms, 6) Complaint
Procedures, 7) Investigation Procedures, 8) Disciplinary Procedures,
and 9) Measures to Correct the Effects of Harassment.

AUSTRALIA

A complaint of sexual harassment can be made to the Australian Human Rights
Commission. Complaints must be made in writing or by email. This can be done
by downloading a complaints form or completing the online complaint form.

There is no cost involved in making a complaint. Complaints can be made in any
language, in Braille, or verbally on a video or audio tape. The Commission can also
help write out a complaint if assistance is required.

HAWAII

The most obvious situation of an employer’s obligation to investigate cases of sexual
harassment in the workplace involves a complaint by an employee. Often, however,
employees mention bothersome conduct that may constitute prohibited harassment
to their supervisors but request that the supervisors take no action or maintain
confidentiality.

In Hawaii, once a supervisor or manager is aware of prohibited harassment, the
employer is deemed to have knowledge and will be liable for the harassment
regardless of whether management was made aware of the situation. In general, even
if the employee requests that the employer take no action, an investigation should be
conducted. The employer should not defer to the employee’s request for inaction or
confidentiality. The employee does not have adequate information to determine
whether action should be taken. For example, unbeknownst to the employee, the
alleged harasser may have engaged in similar behavior in the past or presently may
be engaging in even more egregious behavior towards other employees. The prudent
employer will undertake an investigation to determine the scope of the problem and
independently assess whether any action is necessary.

If an employee refuses to cooperate with an investigation, at minimum the employer
should document its attempts to conduct an investigation and the employee’s refusal
to provide necessary information. Refresher training on the no-harassment policy
may be warranted to that workgroup.

Even if no employee complains about harassment, the employer should undertake
an investigation of harassment of which it has knowledge. If a manager observes
what appears to be unwanted sexual conduct directed at an employee in the
workplace, the manager should investigate. Managers also should investigate if the
person who complains is someone other than the employee who is allegedly being
harassed. Receipt of an anonymous letter complaining of harassment or vague
complaints made by employees who refuse to identify any alleged harassers also
may trigger the duty to investigate. It is important that employers train their
managers and supervisors to be proactive in this area of personnel law because of
the potential liability for themselves and the company. Any questions from managers
and supervisors about what may be prohibited harassment should be directed to
human resources or senior management for determination.

CONCLUSION

Of late, the problem of sexual harassment at the workplace has assumed serious
proportions, with a meteoric rise in the number of cases. Surprisingly, however, in
most cases women do not report the matter to the concerned authorities. In any
civilised society, it is the fundamental right of people to be able to lead their lives
with dignity, free from mental or physical torture. To ensure this, transgressors must
pay for their offensive conduct. An effort at prevention and a consistent and thorough
investigation go a long way to decrease or eliminate an employer’s liability when
harassment arises.

A FLOW CHART FOR THE REDRESSAL MECHANISM28

28 ‘india’s New Labour Law - Prevention of Sexual Harassment At The Workplace’ (2013)
http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-
view/article/indias-new-labour-law-prevention-of-sexual-harassment-at-the-
workplace.html?no_cache=1&cHash=0b3fc251a0fb111f79011faa97b8b4b1