Grey areas in harassment law

What happens when a visitor to a bank, maybe customer or someone else, sexually harasses another visitor, customer or someone else? Likewise, what happens if a shopping mall witnesses sexual harassment involving two visitors?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the sexual harassment law), in its avowed and overarching desire to protect women, entrusts the establishment and its management with the duty to redress the grievance.

Contrary to common perception, the law is not all about harassment of a woman employee by a Lothario-type male employee, senior or junior. On the contrary it makes the establishment responsible for redressal of sexual harassment-related grievances of any woman so long as the alleged incident has taken place in the establishment — period.

All sorts of permutations and combinations can be visualised — the harassed female and male aggressor are both employees of the same organisation, the harassed individual is an employee but not the aggressor, the harassed female is a visitor with whom a male employee of the establishment takes sexual liberties and makes passes at or indulges in sexually overt or covert gestures, or both the harassed and the harasser are rank outsiders, with whom the establishment is not related as an employer. L’affaire Tarun Tejpal belongs to the first kind, as indeed are most reported and unreported cases of sexual harassment.

Questionable provision

The sexual harassment law, however, makes it clear that all four situations fall within the purview of the employers’ responsibility -- in preventing, prohibiting and redressing cases of sexual harassment. The law should be welcomed to the extent that it makes the establishment responsible in the first three scenarios. But it might have gone overboard by making the fourth situation the remit of the employer. How can an establishment be responsible when neither of the two parties is its employee? This is not the only provision of the sexual harassment law that can be questioned. For example, it allows the internal committee inquiring into the complaints to arrive at a ‘settlement’ involving the harasser and the harassed. Settlement has come to be looked upon as a pejorative with its implications of a compromise, and wheeling and dealing.

The sexual harassment law does not permit settlement on condition of payment of monetary compensation, but does allow settlement involving an adverse entry in the employee’s record book as well as deduction from his dues. Both smack of silence being bought, with a slap on the wrist for the harasser.

The law gives the harassed woman the right to file a complaint before the magistrate as an alternative to filing a complaint with the internal or local committee where the latter does not exist.

But as the l’affaire Tejpal shows, women, especially those guided by orthodox parents, would not like to come under the arc lights.

No hushing up

There is already a cynical view that the Goa police’s suo motu inquiry would be challenged in court and the harasser may, after all, get away with the self-imposed exile of six months as punishment.

The sexual harassment law equates sexual misdemeanours with industrial disputes, as it were. Industrial disputes can be settled in-house quickly, away from the glare of public scrutiny, but sexual harassment cases should not be allowed to be hushed up.

Once a crime has been committed, the internal committee or the local committee should make a police complaint, helping the victim overcome her hesitation. It can provide for an in-camera hearing, if that is what the victim wants.

Incidentally, sexual harassment can and does take place outside workplaces — in parks, cinema theatres, and so on. There are no CCTVs there to nab the culprit.

Even so, there are grey areas. If there is sexual harassment inside, say, a metro or railway station, involving two colleagues, can it be said to have taken place in a workplace (just as crimes in police custody are not confined to a police station)? Which organisation picks up the tab for acting under the sexual harassment law – the metro authorities or the organisation concerned? And, if the crime involves two individuals unconnected to a common workplace, how would the laws concerned go about their task?

These are issues that should be sorted out.

(The author is a New Delhi-based chartered accountant.)