The draft for 'THE PROTECTION OF WOMEN AGAINST SEXUAL HARASSEMENT AT WORKPLACE BILL, 2007' available at website of Ministry of Women and Child Development http://wcd.nic.in is highly biased against men that considers only harassment towards women, thus it would be easily misused for money extortion and blackmail of employees and their employers. This over favorism in Indian laws towards women would eventually be dangerous to the economy and society as women favored laws like Sec. 498A of IPC are grossly misused as tool of blackmail and harassment. The law must be balanced to take care of sexual harassment irrespective of the gender as there are reports to show the larges number of cases of sexual harassment to men also.
The Sexual Harassment is the any form of abuse of workers because of their sex. Sexual harassment is an unwanted conduct on the ground of a person's sex, or unwanted conduct of a sexual nature where that conduct has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The different kind of harassment happens to men at workplace. Both men and women can be victims of sexual harassment. Men are also subjected to sexual harassment including unwelcome sexually determined behavior an sexually coloured remarks.
However, while women are more likely to report their grievances, the male complaints should be taken just as seriously. Most men would not recognize sexual harassment if it hit them in the face. Men generally do not consider teasing, sexual jokes and vulgar tones from female co-workers as harassment; they are not upset by the kinds of comments and incidents that female employees generally report. Since men are not sensitive to harassing behavior that women (or at least feminists) construe as harassment, it's not surprising that they are not filing many harassment complaints. It is seen that female bosses and managers exploit their power over men in the office and male victims are more likely to complain of second kind of harassment - where a female manager treats women more favourably than men or criticizes male employees more regularly. It affects both women and men, causing stress, health problems and financial penalties when they leave their jobs to avoid it. Men who complained of sexual harassment were often targeted by female bosses. In the US, almost 16% of all sexual harassment complaints received by the Equal Employment Opportunities Commission (EEOC) are regarding sexual harassment of men.
Instances of sexual harassment of men could include (a) Improper physical contact, (b) Verbal indecent remarks of a sexual nature, (c) Questions about sex life, (d) Sexual demands, (e) Any conduct of a sexual nature which creates an intimidating, hostile or humiliating working environment for you, (f) Bullying because of one’s gender (not necessarily involving sexual conduct) if this creates an intimidating, hostile or humiliating working environment and the harasser does not treat people of the opposite sex in that way, (g) Vindictive campaign against him, generally criticizing and undermining his work and making rude remarks and suggestions.
Therefore, the word "women" mentioned in the draft should be replaced with "employees". It is equally likely that a woman employee or employer may sexually harass a man or threaten him for false complaint to take advantage of situation and to blackmail employees at workplace. Such harassment cases are quite common and in the west, they are punishable just as when a man commits such an act. In UK, a survey conducted by the UK Dept of Trade and Industry reports that men constitute 40% of sexual harassment victims (Ref. 1). In Hong Kong, a survey conducted by the Civic Party and Equal Opportunities Commission revealed that one third of sexual harassment victims are males (Ref. 2). In case, the allegations of women are found to be false then it would amount to the sexual harassment to other person, so should be dealt accordingly in the Act.
The present draft mentions of creating 'Internal Complaints Committee' at workplace, which creates doubt over the draft itself. It says that the Chairperson of that committee shall be a senior level woman, committed to the cause of women from amongst employees and in case its not available, the Chairperson shall be appointed from a sister organization or a Non-Governmental Organization (NGO). This is objectionable and dangerous provision as its making an implicit assumption that only women are capable of arbitrating complaints of Sexual Harassment, rather there should be an impartial and person of integrity. Also, no organization must be forced to bring outsiders to arbitrate the internal affairs of the organization. This is the most vicious provision with potential for misuse, blackmail and extortion. NO outside members of organizations would be allowed to arbitrate on these issues as the potential for blackmail will be huge. Such NGOs will have vested interest in justifying their existence by entertaining frivolous complaints and making issues that are easily dealt within the bounds of organization into major complaints. They may also encourage women who may not be sexually harassed, but have other grievances with the organization.
The number of sexual harassment complaints may not be so many in an organization for which a permanent committee has to be formed. As Committee’s work will be only limited to dealing with complaints of sexual harassment to women employees, it will not be doing any regular work in organization so their role must be temporary for considering the particular complaints that would be very few in the whole year. Without any regular work, the permanent committees will add heavy financial burden on government, as regular allowances and remuneration would be paid to them. If a permanent committee would be formed, they may fabricate the complaints to justify their existence. Therefore, no committee shall be formed unless to hear a specific complaint and the Committee must exist only when there is a complaint to be heard. It should not be made a paid employment, so they would encourage frivolous and malicious complaints to justify their own existence.
The purpose of the Bill seems very doubtful in the way it mentions the involvement of NGOs in working of these committees, as NGOs will be financially benefited by government funding. It nowhere mentions about any checks and balances, minimum criteria and background check for those NGOs. On one hand, the draft prescribes that no such complaints should not be made public and would be out of the preview of RTI act, but on other hand it involves NGOs in such sensitive internal matters of employees that make organization and their employees susceptible to their extortion and blackmail. No outside agencies and NGOs should be involved in internal sensitive matters of an organization.
The provision to provide a legal heir or such other person to make a complaint under this section is mischievous. The legal heir can exploit the situation for purpose of gaining monetary benefit and compensation.
The conciliation to settle the matter between her and the respondent must not include monetary settlements. As legally, only the judge after the due process can impose a monetary settlement in the form of a fine or penalty. It has provisions to deduct from the salary or wages of respondent such sum of compensation to be paid to the aggrieved woman or to legal heirs, or to direct the respondent to pay such compensation to the aggrieved woman. These provisions have no limits on the liability which say that compensation is to be paid to aggrieved woman will be determined on basis of the income and financial status of the respondent. If the loss of earnings of complainant is to be compensated, then how it is related to the income and financial status of the respondent?
It prescribes that the Committee or the Local Committee shall conduct no further enquiry where a settlement is arrived at. What remedies are available if the committee compel an employee into accepting guilt and forces a settlement on the person? It is must that conciliation agreement shall not include "Monetary Settlement" to prevent mischief and fraud as women may use it as a tool of bargain. If respondent would be unsatisfied with decisions of committee then there are no remedies to come to a conclusion. It is very unclear if the respondent can challenge the recommendations of committee in court or if he can use legal counsel during the proceedings of the committee.
No Local Committee should be empowered to formulate any conciliation that involves monetary settlement. It would work as incentives for frivolous and malicious complaints and room for extortion and blackmail. It creates doubt about these committees, whether they would have judicial or administrative powers? If so, under what provisions of the constitution of India their existence is justified?
It is doubtful when bill says that in case of settlement, the employer would be recommended to not take action in matter, which shows that the employer would have no role in whole proceedings. If suppose, the proceedings of committee would be unfair and biased, then what if the employer still wants to take action against the faulty person due to loss of work and productivity from these spurious allegations and proceedings thereof. There is no remedy mentioned for respondent or the employer, if they would be dragged into proceedings that are prima-facie false. Therefore, there should be provisions where the committee shall also recommend to employer or the District Officer for appropriate actions to be taken against the accuser if it would arrive at conclusion that the allegations against the respondent has not been proved. The committee must also follow-up to ensure appropriate actions is taken against the malicious complaint for the pain, suffering, loss of career and emotional distress caused to falsely accused, and should be substantiated with the sufficient compensation to the respondent.
The respondent (male or female employee) must not be individually responsible when he/she is in employment of the organization. It is also the responsibility of organization to police its own employees and ensure they follow the service rules. If they don't, the employer is also responsible in matters of harassment at workplace. The employer is under a duty to provide a safe working environment for employees and should take steps to prevent the harassment happening again. If any client or member from public harasses and employer does nothing to stop it, there should be a provision to complain against employer. If the harassment continues and the employer does nothing to stop it, there should be a provision in the Act to complain against them also.
References:
[1] Survey conducted by the UK Dept of Trade and Industry, which concludes that 40% of sexual harassment victims are males, as reported in the Observer: http://observer.guardian.co.uk/uk_news/story/0,,1805397,00.html
[2] Survey conducted by the Hong Kong Civic Party and Equal Opportunities Commission, which reveals that one third of sexual harassment victims are males, as reported by IANS: http://in.news.yahoo.com/070206/43/6btxh.html
www.498A.org is an international volunteer based organizations consisting of Indian citizens all around the world who have joined hands to fight the evil of 'misuse of 498A' (commonly known as dowry law) and new Domestic Violence Act 2005. We have 24-hour help lines for counseling victims implicated in false cases and have volunteers in major cities in India, USA, UK, Australia, Middle East and other countries around the world.
For more information, please contact:
Mr. Nishant Kumar
Founder Member of Save Indian Family Movement
Phone: +91-141-2545804, Cell: 09352736000
E-mail: nkumar48@yahoo.com
Websites: www.498A.org, www.mynation.net, www.protectindianfamily.org, www.saveindianfamily.org
Wednesday, April 4, 2007
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