The brief
reference made in naavi.org on the "Sexual Harassment of Women at Work Place
(Prevention) Bill 2003 (SHWWPP Bill) has evoked some interesting responses.
Ms Revathy Balaji,
an advocate from Chennai has shared her views on the subject which is
reproduced here for general information.
Your views on the bill on work place harassment of
women were thought provoking.As a lawyer, I know that it is extremely
difficult to know whether such a alleged harassment actually took place or
the woman was just being vindictive to her colleague with whom she does
not happen to see eye to eye.The proposed bill if enacted would be like
dowry harassment legislation, which even though started with good
intentions is being misused for vengenance by some women and their
families.
I had a recent experience of giving consultation to a lady,who wanted to
take her company and a colleague who allegedly harassed her by passing
verbal sexual comment,to court.After reading her complaints and from what
she told me, I was able to come to the conclusion that she had a certain
mental disorder, as some of the allegations she made were absurd and could
not have happened at all. I told her categorically that it was not
possible for me to help her, as I could not tell her about her mental
condition.But any clever lawyer probably could make a case out of her
story and in the process totally destroy someone's career.
Notwithstanding all this, I believe a woman has the
right to work with dignity and in a safe work atmosphere, so the workplace
harassment bill is necessary.But in order that vindictive women don't go
around accusing their male colleagues have a few suggestions to make.
1.A clear agreement. with the employees saying that
if there is any work place harassment, they should first undergo a
departmental enquiry to find out the merits of the case and the harassed
women employee should give a notice before proceeding with other avenues
like going to the police.
2.There should be a clear time limit for the company
to look in to the issues and solve them.
3.Clearly, HR managers are not capable of taking
care of this issue of workplace harassment and the company should engage a
legal counsel to collect all evidence from the beginning.
4.Any harassment does not escalate into a big issue
overnight,.It has to happen gradually before anyone gives a complaint. So,
the workplace rules should be very clear and if possible paste the rules
in a prominent place.
5.If a woman genuinely feels uncomfortable, her
problems should not be trivialized by saying that the person who harassed
her acted only in a joking manner etc.Any problem should be dealt with in
a ultra confident, unbiased manner sensitively.
6.As said earlier the collection of evidence is of
primary importance and none of the trivial things should be left out and I
believe this can be the work of the legal professionals, instead of
waiting to consult them after being sued in court.
7.There should be a very clear laying down of
procedures that will be followed in case there is a departmental enquiry
and these procedures to be brought to the notice of the employees in a
transparent manner from the time they start working..After all they
should know where to go in case of a genuine complaint.
8.As far as possible only persons not closely
related or friendly with both the alleged harrasser and the harassed
should conduct the inquiry with a lawyer on board.
9.I feel just like a physical test to be undergone
before employment, a pyschological evaluation of the employees may be in
order, though I am not sure how far it is viable.
I feel that if proper measures are not taken soon,
it will become suing and counter suing with a damage to the reputation of
the company.Prevention is certainly better than cure.
Thanks,
The reason why
Naavi.org has highlighted this Bill is that IT industry and in particular the
BPO industry has a large share of women employees. Hence HR managers have a
reason to be concerned about the Bill since it may severely hamper their
ability to undertake normal HR action which may include disciplining an errant
woman staff and relieving her from job at times.
This Bill
though laudable for its purpose will end up causing disharmony in the industry
and will eventually lead to men employees resorting to Unionism to protect
themselves.
The seriousness
of the issue will not be fully understood if certain key provisions of the
Bill are not highlighted.
In the previous
article, I had only highlighted the needlessly broad definition of what
amounts to "Sexual Harassment".
What is of
greater concern is that
a) The burden
of proof in case of a complaint lies with the accused. This means that if a
woman employee complains, she need not provide any proof for her complaint.
The accused who is at the wrong end of the wrath of the woman would have to
provide evidence to prove that he is innocent.
b) The
punishment for the offence is quite strong with 5 years imprisonment. So a
complaint can immediately freeze the career of the accused. If a lady and a
man are competing for a promotion and a complaint is filed, the man has to
forget his promotion for ever.
One may argue
that these are hypothetical situations. But the case I have cited and another
which Ms Revathy has cited and a few which I have not cited, indicate that it
is not uncommon to think of such situations arising very frequently.
Unfortunately,
the Bill has no checks and balances to prevent abuse of its provisions. On the
other hand there are more hurdles which will force adverse action being taken
on the accused.
The reasons are
as follows.
1. The
supervisor, manager and managing director or the
overall administrative head, shall also be joint responsible for the offence
and irrespective of the intention and prior meeting of minds; section 34 of
the IPC shall be made applicable in their case.
2. The case may be pleaded at the option of the
complainant either by herself or with her counsel or by a women's organisation
or the trade union of which she is a member. There is no such mention for the
accused.
3.The employer is expected to initiate a
mechanism for handling complaints through a 7 member Complaints Committee in
each of the places where there is a branch office. The committee should have
three NGO representatives.
4.There will be a District Level Government
officer to be appointed by the Government to whom reports have to be sent
periodically on action taken etc.
In totality, the Bill if it becomes a law will be
a huge burden to the industry and without any doubt cause large scale
indiscipline and disharmony at workplace.
This Bill is being revised and coming up for
discussion again. I trust industry organizations take suitable
action in this regard to prevent a HR crisis in the IT industry.
Naavi
June 27, 2005
(Comments
welcome)
Related
Articles:
Copy of the BILL (2003)
Copy of the Draft bill (2004)
