Sexual Harassment at the Workplace- Introduction 1. Sexual Harassment Common Myths and Facts 2. Right to Protection against Harassment 3

Transcription

1 Page Sexual Harassment at the Workplace- Introduction 1 Sexual Harassment Common Myths and Facts 2 Right to Protection against Harassment 3 The Supreme Court Guidelines 4-5 Sexual Harassment - Its Features and Impact 6 Types of Sexual Harassment and its Effects 7-10 Options for Filing Complaints 11 Complaints Committee Composition and characteristics Guidelines for Complaints Committees Inquiry Process and Proceedings Legal Remedies Preventive Measures Samples Annexure-1 Format Of Prima Facie Report Annexure-2 Format of Inquiry report Annexure-3 Sample Policy to prevent Sexual Harassment at the Workplace References 50

2

3 Sexual Harassment at the Workplace Introduction Women's rights and well-being are under threat all the time, either within the family or outside its confines. Despite the extensive work done by the civil society organisations to create safe spaces for women, freedom from violence, personal, economic and political security and full access to sexual and reproductive health services,treatment and care are but a few of the basic human rights yet to be enjoyed by many women worldwide. Indian women inspite of all these difficulties are coming out of the confines of their homes and joining the workforce with a large number of women. Be in the need for financial stability or independence, the women have made it a point to be part of the structure. With the increasing workforce the vulnerability of women have also increased. They are now not only facing harassment within the confines of their homes but also on roads and in their work place. One such harassment is Sexual Harassment, which is oldest and the most common form of harassment that touches the life of every woman irrespective of age, race, religion, income, class and culture. This harassment is an instrument used by men to show their dominance over a woman or girl simply because of her gender and her vulnerability as a female. Working women who already have to fight the patriarchal systems of our society are considered easy targets by the male population. As Sexual Harassment is all about power play, the very act puts the women in an inferior position and continues to hold her there. Some women deal with Sexual Harassment strictly, however there are a large multitude who continues to suffer and try to protect their dignity for fear of discrimination, hostility, ridicule and stigma. While the onus to provide women employees, a hostile free work environment lies with the employer, many times being considered as a way of life, due regard is not given to these complaints. Existing myths, beliefs and stereotype beliefs also makes it difficult for the victim to define or classify sexual overtures as a form of harassment. While Sexual Harassment at the work place is widespread and often subtle it has was not considered as a problem or given much importance to be dealt with methodically. It was only in 1997, when the Supreme Court for the first time acknowledged Sexual Harassment as unwelcome act which cannot be justified in guise of a normal relationship. With an increase in the number of women in the workforce and closeness between the genders, it is important to lay down specific guidelines for their behaviour. One needs to have a firm policy in the workplace, and Sexual Harassment by its very nature is a sensitive issue, it needs to be handled expeditiously. Following the Supreme Court ruling in 1997,appropriate mechanism for redressal of grievances as well as preventive and corrective steps are to be taken. The Government of India has abided by Supreme Court's ruling and has made specific provisions in CCS (Conduct) Rules, 1998 prohibiting Sexual Harassment of the women by government servants. Circulars and directives are issued to the ministries/departments to take appropriate action against the delinquent Government servants. State Governments and private enterprises have also taken necessary steps in this regard. YWCA of India 1

4 Harassment of women is a common malady in the society. The all India figures of the National Crime Report Bureau census 2008, confirms this. Sexual Harassment-An infringement Womens' Rights Crime Heads Cases Reported % To Total Charge Communication Rate of Crime Convi- Ction Rate Ipc Crimes Sheeting Rate Rate Kidnapping & abduction of women & girls Molestation Sexual Harassment Cruelty by Husband and Relatives Importation of Girls Total Crime against women (IPC+sll Sexual Harassment Common Myths and Facts Myth Fact Myth Fact Myth Sexual Harassment is rare It is widespread & touches 40-60% lives of working women and students The seriousness of Sexual Harassment is exaggerated as it is trivial and harmless flirtation It can be devastating, offensive, frightening and insulting forcing women to leave jobs and give rises to serious ailments It doesn't happen to respectable women Fact Myth Wrong at any given time a woman whether a child, adolescent or adult can face harassment Women's place is at home, if they go out they are responsible for the same Fact Women irrespective of place of abode or work can face harassment Myth Sexual Harassment and Eve Teasing is fun and women enjoy it Fact No, it is considered derogatory and dirty YWCA of India 2

5 Right to Protection against Harassment The UN Convention of the Elimination of all forms of Discrimination against women: The UN Convention of the Elimination of all forms of Discrimination against women(cedaw) adopted in 1979 at Beijing to which India is also a signatory recognizes and also acknowledged that Sexual Harassment is a serious malady and has categorized it as gender discrimination and a form of gender based violence. In its general recommendation No 19,the committee has called the State parties to include in its reports information on Sexual harassment and on measures to protect women from sexual harassment and other forms of violence or coercion at the workplace Protection of Human Right Act, 1993 According to the Protection of Human Right Act, 1993 "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Women rights are also Human rights and have to be protected allow them to live with dignity without fear of their safety and security. The Constitution of India Sexual Harassment of a woman employee at workplace, tantamounts to violation of the 'right to gender equality' and also the 'right to life and liberty - the two most precious fundamental rights guaranteed in the Constitution of India under articles 14, 19 and 21. The Fundamental rights and Directive principles further uphold these rights under: Article 14: Provides that the State will not deny any person equality before law and equal protection before law. Article 15 (1): Provides that the State shall not discriminate religion, caste, sex or against any citizen on grounds of place of birth. Article 15 (3): Specially provides that the State is permitted to make special provisions for the benefit of women. Article 16 (1) & (2): Prohibits discrimination in general and also discrimination on the basis of sex, in the offices and those employed under the State. Article 19 (1) (g): Provides space 'to practice any profession or to carry out any occupation, trade or business'. Article 21: No one shall be deprived of his life or personal liberty except according to the procedure established by law. Right to life and liberty includes right to live with dignity & work in a profession of one's choice. Sexual Harassment at the workplace deprives a woman of this precious right. YWCA of India 3

6 Sexual Harassment: The Supreme Court Guidelines The Supreme Court in 1997 in Vishaka Vs. State of Rajasthan and others, for the first time recognized, acknowledged and explicitly defined sexual harassment as an unwelcome sexual gesture or behaviour aimed or having a tendency to outrage the modesty of woman directly or indirectly. Defining sexual harassment as an act aimed towards gender based discrimination that affects women's right to life and livelihood, the Supreme Court developed broad based guidelines for employers. This mandatory guidelines known as Vishaka guidelines are aimed towards resolution and prevention of sexual harassment. These guidelines bring in its purview all employers in organized and unorganized sectors by holding them responsible for providing safe work environment for women. The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in voluntary/honorary capacity. Expressly prohibiting sexual harassment at work place these legally binding guidelines put a lot of emphasis on appropriate preventive and curative measures. The guidelines include the following as acts of sexual harassment: Sexually coloured remarks Physical contact and advances Showing pornography A demand or request for sexual favours Any other unwelcome physical, verbal/non-verbal such as whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender based derogatory remarks, etc. Directives: The onus to provide a harassment free work environment has been laid down on the employers who are required to take the following steps: Employers must form a Complaints Committee. Express prohibition of sexual harassment in any form and make the employees aware of the implications through in house communication system / posters / meetings. Must include prohibition of sexual harassment with appropriate penalties against the offender in Conduct rules. Prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 to be included by private employers. Provision of appropriate work conditions in respect of- work, leisure, health, hygiene to further ensure that there is no hostile environment towards women. No woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment. YWCA of India 4

7 Specific offences under the Indian Penal Code or any other law to be dealt through appropriate action in accordance with the law, by making a complaint with the appropriate authority. Victims of sexual harassment to be given an option to seek transfer of the perpetrator or their own transfer. Complaint Mechanism: Complaints Committee to be headed: By a woman and have 50% women as members Must include an NGO or other body who is familiar with sexual harassment. Should have time bound procedure to be decided by the Committee Must maintain confidentiality Provide protection to the Complainant as well as the witnesses against victimization or discrimination Punishment: According to the law of land/disciplinary proceeding under Government rules Committees Responsibility: Should submit an annual report to the concerned Government department with information of the action taken (if any) so far by them. Miscellaneous Provisions: Guidelines to be prominently notified to create awareness on the provisions of the judgment Employers to assist the affected persons in cases of sexual harassment by outsiders or third parties. Sexual harassment should be discussed at meetings, employer-employee meetings and at other appropriate forums. Both Central and State governments are required to adopt measures including legislations to ensure that private employers also observe these guidelines. The Supreme Court judgment of 1997 makes it obligatory for every employer and other responsible persons to follow the guidelines laid down by the Court and to develop a specific policy to prevent and address the issue of sexual harassment at the workplace. Educational institutions are bound by the same directive. The Department of Personnel and Training taking this up had issued an office memo # 11013/11/2001- Estt(A)dated December 12,2002 making sexual harassment an act of misconduct and has also made the report of the Enquiry Committee binding on the Disciplinary Authority. YWCA of India 5

8 Sexual Harassment-Its Features and Impact What constitutes as Sexual Harassment According to the Supreme Court definition, sexual harassment is any unwelcome sexually determined behaviour, such as:- Physical contact A demand or request for sexual favours Sexually coloured remarks Showing pornography Any other physical, verbal or non-verbal conduct of a sexual nature. Therefore sexual harassment takes place if a person: Subjects another to an unwelcome act of physical intimacy, like touching, brushing, patting, pinching, stalking, assaulting, etc. Makes an unwelcome demand or request (whether directly or indirectly) for sexual favours and further makes it a condition for employment, promotion, increased pay, additional benefits, special privileges, gifts, etc. Makes an unwelcome remark with sexual implication, like sexually explicit compliments, dirty and loud jokes, sexist remarks etc. Shows a person any sexually explicit visual material, in the form of pictures, s, cartoons, etc or any offensive written material with pornographic content. Engages in any other unwelcome conduct of a sexual nature- verbal, or non-verbal, staring, offensive signs/ gestures, singing, making sounds, etc. Makes unsolicited invasive inquiries into the private lives of employees -Asking of a person's sexual fantasy, preferences, activities, behaviour/relation ship with spouse. YWCA of India 6

9 Types of Sexual Harassment and its Effects Types of Sexual Harassment Quid Pro Quo Harassment Something for something Harasser has position of power or authority and Refusal to submit will affect the victims job Tonight, our little project team will do great work, won't it? Example: A supervisor demands sexual favours assuring better treatment, or threatens to fire, demote, or transfer unless sexual favours are given. Hostile work environment due to harassment. Stop this or I'll complain: Then I'll stop your promotion Such conduct which unreasonably interferes with an individual's work or performance or creates an unfriendly and uncomfortable work environment. Displaying pornographic material at the workplace Same sex Harassment Male harassment on another male, or female. Harassment on another female. Third Party Harassment Sexual harassment by a non-employee, e.g. Vendors, Customers or Visitors. Behaviour not found offensive by some employees can facilitate an offensive environment for other employees. YWCA of India 7

10 Example: A group of employees talking about each other's sex lives in the presence of another person Consenual relationship-a process leading to harassment. With colleagues spending more time at work than at home, traditional workplace relationship are also undergoing a change. People are more relaxed and casual towards each other. A relationship develops naturally as there is bonding of thoughts and interest. This relationship may be friendly and flirting. However it may not always have a negative effect on either sex. Once this relationship moves from being verbal to physical it may have some complications. Flirtation at the workplace is common and by mutual consent. It is accepted, liked and can be controlled most of the time. However harassment is a serious matter and hurts the dignity of a woman. Harassment comes not because of sex but is a matter of power and is done mostly by a person who has an advantage over the other. Consensual relationships should not be allowed to be developed in a workplace as they also affect on the other employees sometimes negatively. Effects of Sexual Harassment on performance at all levels Harassment whether sexual or discriminatory has far reaching effects on the psyche and health of the woman. It also effects the employer adversely: Effect on the victim Anxiety / Confusion - Depression Disillusionment Low self-esteem Loss in productivity Deterioration of morale Damaged interpersonal relationships Psychological distress, compromised wellness Compromised integrity Effect on Productivity Increased costs with additional sick leave & pay Increased absenteeism and drop out rates Less work Reduced efficiency Additional costs of recruitment & training on resignation Damage to institutional image Negative institutional culture High legal costs involving court awards, settlements and fees YWCA of India 8

11 Sexual Harassment : Whose responsibility is it any way! What constitutes as Sexual Harassment The best thing would be to stop harassment before it starts. According to the Supreme Court definition, sexual harassment is any unwelcome sexually determined Source: The person creating a hostile environment has the responsibility to stop behaving in such a manner. behaviour, such as:- Target: The target (victim) must confront the harassment/harasser! Physical contact Observer: Those who observe disrespectful or harassing behavior have a responsibility to stop it when it occurs; and one A who demand notices such or request is NEVER for sexual an innocent favours bystander! Person: Sexually Every person coloured in authority remarks has a duty to keep the workplace free from offensive and harassing behaviour and it is the responsibility of the Employer for preventing complaints. Showing pornography Responsibility Any other physical, of the verbal Employer or non-verbal for conduct preventing of a sexual Complaints nature. The Therefore employee sexual always harassment approaches takes the management place if a person: for grievance redress. Therefore commitment has to be shown through Subjects enforcement another and action to an by unwelcome the responsible act of physical authorities. intimacy, Even the like most touching, comprehensive brushing, sexual patting, harassment guidelines pinching, and procedures stalking, are assaulting, bound to etc. fail if not acted upon immediately, enforced quickly, consistently, and aggressively. To be effective, the employer must take sexual harassment seriously. They need to make certain that personnel Makes responsible an unwelcome for enforcement demand or of request conduct (whether prompt, directly thorough, or indirectly) and documented for sexual investigations favours and of all complaints, further even those makes that it a appear condition trivial. for employment, promotion, increased pay, additional benefits, special privileges, gifts, etc. Employers should take actions that are focused towards prevention and dealing with sexual harassment. Such actions Makes may an include unwelcome verbal remark warnings, with written sexual warnings, implication, job like transfers, sexually suspension explicit compliments, of employment, dirty and, and if necessary, loud termination. jokes, sexist remarks etc. Employers Shows should a person also any keep sexually tabs on explicit their employees. visual material, This can in be the accomplished form of pictures, by means s, of monthly cartoons, meetings etc or with higher any offensive management, written unscheduled material with spot pornographic checks, or periodic content. sexual harassment training sessions with the implementing Engages authorities. in any other unwelcome conduct of a sexual nature- verbal, or non-verbal, staring, offensive First and signs/ foremost, gestures, acknowledge singing, making that sounds, it is the etc. legal responsibility to employer to provide safe working environment Makes unsolicited for women invasive free from inquiries sexual harassment into the private and discrimination lives of employees and -Asking that one of can a person's be held liable sexual for sexual fantasy, harassment preferences, by employees. activities, behaviour/relation ship with spouse. Know that sexual harassment can have a devastating effect upon the health, confidence, morale and Types of Sexual Harassment performance of those affected by it. The anxiety and stress produced by sexual harassment commonly leads to Quid those Pro subjected Quo Harassment to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere. Something for something Understand the reasons why women remain silent about sexual harassment. An absence of complaints about Harasser has position of power or authority and Refusal to submit will affect the victims job sexual harassment does not necessarily mean an absence of sexual harassment. It may mean that the recipients of sexual harassment think that there is no point in complaining because nothing will be done about it or it will Tonight, our little project team will do great work, won't it? be considered trivial. Example: YWCA of India 9

12 Enforce exemplary punishment without delay. Promote welfare facilities and safety for women. Generate gender awareness through house journals, newsletter and bulletin boards. Not detain women after certain hours except in secure situations, do not place them in isolated or otherwise dangerous location. Guarantee equal opportunity in hiring and promotion. Ensure participation of women at all level of management. Audit the attitude of staff / fellow students regularly. Initiate a social Audit system. Conduct yearly meetings with the supervisors to review the sexual harassment policy, and to make sure that they understand that an employee does not need to suffer negative consequences in order to make a complaint of sexual harassment. Inform the supervisors that even mild to moderate sexual jokes or statements can create an atmosphere of hostility that will make some employees uncomfortable, and could lead to the creation of a hostile work environment Investigation Procedures Investigations must be conducted promptly for several reasons. The disruption caused by actual harassment or rumors can be substantial. Evidence and memories of witnesses may be less accurate as time passes. A complaining employee or unjustly accused individual may suffer increasing emotional distress the longer any resolution is delayed. This delay may lead to subsequent legal action and claims of damages for emotional distress. Furthermore, the courts have established that employers are liable for failing to eliminate sexual harassment about which they were, or should have been, aware. Thus, employers should investigate all complaints, even when they are skeptical. The following steps can help ensure an effective investigation: Contact Between the Parties is Reduced or Eliminated. Both the complaining employee and the alleged harasser should be told to avoid contact with one another, and ways to minimize contact should be implemented. A transfer of either person may be appropriate during the investigation as long as neither suffers a reduction in pay or benefits. The onus to provide a harassment free work environment has been laid down on the employers. It is mandatory for all employers be it Government bodies /corporate sector/educational institutions/unorganized sectors to form a Complaints Committee. YWCA of India 10

13 Options for Filing Complaints The employer has to provide different options for to ensure filing of the complaints in a timely mannerthrough the supervisor/complaint Committee member, calling a helpline, complaining through letters/ , etc. It is the responsibility of the employer to make known the process of and hierarchy of filing complaints. Immediate Supervisor Any other person in authority if the complaint is against the supervisor Complaints Committee Informal methods of resolving complaints:- As the objective is to end the harassing behavior at the lowest possible informal methods must be part of the complaints mechanism.these are cost effective and can resolve complaints effectively and positively. Informal options act as a buffer or filter, save bad blood, prevent the office environment getting uncomfortable for all, if employees can be advised as to how to handle the situation before it gets out of hands. Platforms to resolve complaints or to stop harassing behavior must be provided before the complaints escalate into full-blown, formal complaints. Complaints Committee Composition and Characteristics The Supreme Court has laid down certain guidelines for the employers to follow in connection with the setting up of the Complaint Committee. The Committee: Must be headed by a woman. Have half of its members as women. Must include an NGO or other agency who is familiar with sexual harassment. Should have time bound frame work of functioning. Must maintain confidentiality. Provide protection to the Complainant as well as the witnesses against victimization or discrimination. Should submit an annual report to the concerned Government department with information of the action taken (if any) so far by them. YWCA of India 11

14 Characteristics of the Members serving on the Complaints Committee: First and foremost it is important to identify the right persons to serve as members on the Complaints Committee. The persons identified should have the persons identified should have traits which would hold them in good stead as well as ensure justice for the victim. Objectivity: A focused unbiased attitude with an unconditional belief in the truthfulness of the victim (unless something on record completely negates her complaint). Compassion: The members should emphasize with the complainant and does not judge her by their moral standards. Do s and Don'ts for Complaints committee Do's Create awareness on the presence of the committee and make known complaint procedures. Treat the complainant with respect. Ensure that the body language of each member communicates complete attention to the complainant and the accused. Reject set ideas and stereotypes on how the victim or accused should appear or act. Be open to the fact that sexual crimes are committed in privacy and eye witnesses may not be existing or forthcoming. Understand that only one out of many may be subjected to sexual harassment. The complainant, when she complains, has at stake her personal life and career. Therefore drawing up similarities or generalisation should be avoided. Consult the complainant for corrective action. Ensure safety for witnesses, friends and supporters of the complainant. Help the complainant regain his/her self-respect. Follow-up with the management ensuring cognizance on the rulings given by the Committee. Understand that it is difficult for a woman to talk about anything sexual. Hence there can be long time interval between the harassment and the actual complaint. Must handle complaints in a confidential manner and within a time-bound framework. It needs to submit an annual report on sexual harassment to the appropriate government authority. YWCA of India 12

15 Don'ts Do not guide or lead the complainant to make statements Do not insist on a detailed description of harassment. This could increase the complainant's trauma. Do not interrupt or allow interruptions when conversing with the complainant and/or accused. Do not determine the impact of the harassment on the complainant. Do not, under any circumstance, get aggressive. Do not discuss the complaint in the presence of the complainant or the accused. Remember, this is a human rights issue, therefore, (a) do not give too much weightage to intention, focus on the impact, and (b) 'proof beyond reasonable doubt' is not required, circumstantial evidence is enough. Never make these statements while dealing with Complaints of Sexual Harassment It's just teasing no big deal Our staff would never do this I know he/she didn't mean anything like that It's your fault for dressing so provocatively You need to learn to handle these things Just ignore it He puts his arms around everyone You must have wanted it, or you would have said no Why can't you learn to accept a compliment? It's just a prank that got out of hand We've never had a complaint, so we don't have a problem YWCA of India 13

16 Guidelines for Complaints Committees Evaluating Sexual Harassment behaviour: The Complaint committees set up for investigating complaints needs to- look at circumstances under which the alleged incidents have occurred and determine the process based on facts which may vary from case to case. keep in mind the inappropriateness and unproffessionalism which has taken place even though the complaint may not fall within the parameters of legal sexual harassment. A few bench marks for evaluation are: Was the action/comment related to gender or gender identity of the complainant? Did the Complainant find the behaviour/ action unwelcome and was an objection voiced? Was there a power struggle-work specific, relation ship? How relentless was the behaviour-offensive, intimidating, threatening, stressful, shameful? How often did it occur? How widespread-has it happened to others? The following questions may be helpful in establishing sequence of events and getting relevant information Q) What was the offensive behaviour? Q) When and where did it occur? Q) The time frame-period since harassment has been taking place. Has some details been kept of the incidents? Q) Did the complainant object against the behaviour and what was the person's reaction? Q) Has any other person also faced similar harassment from the accused? Q) Were any witnesses present- Names and details to be provided? Q) Did the complainant share experiences with others -Names and details? Q) What was the effect of the behaviour on the complainant? Q) What remedy/justice does the complainant wants? Preliminary meeting with the Complainant Ask for factually written complaint if not available already Give a document for the complainant giving information on the policy and process of the investigation YWCA of India 14

17 Find out if harassment has stopped or continuing since lodging of the complaint. Establish if the complainant is at any immediate risk and is any protection required against reprisal Listen, be supportive, ask questions which are not judgmental and avoid making assumptions. Take the statements seriously Don't make promises or give guarantee of a particular result Don't share information which would violate the privacy of the person accused Deal seriously with the concerns of complainant o Fear, humiliation, retaliation o Keeping confidentiality from the date of inquiry till end Ensure that the complainant understands that she /he will be kept abreast with the development and progress If a prima facie case of sexual harassment is not established the matter to be referred to appropriate authorities Document facts and record proceedings and affix signatures of all present for accuracy and record Other things the Complaints Committee need to do Encourage the complainant to note details of each incident of harassment and monitor any changes in work patterns or attitude on the part of the alleged harasser so as to avoid further attempts of victimisation or accusations of poor work performance, etc. Make discreet enquiries from other workers on similar problems. Inform all employees that it is their obligation to report sexual harassment that they either experience or witness. Suggest suspension or transfer of the accused to ensure transparency and security to the victim. Document results and corrective action. Follow-up with the employer to ensure implementation of the findings and to prevent the sexual harassment from occurring again in the future. Prima Facie Report The Complaint Committee shall intimate Disciplinary authority whether or not the Committee considers that a prima facie case has been made out in the prescribed Form (Annexure 1). After the prima facie report, the Complaint Committee may not be required to present any other/interim/progress report during the inquiry. YWCA of India 15

18 Inquiry Process and Proceedings Procedure for Conducting Enquiry If a prima facie case is made out, the Complaint Committee shall then proceed to inquire into the matter. A record of the proceedings of each hearing shall be recorded and duly signed by all Committee members. The victim may called for re-examination one she had been asked to make her statement at the initial meeting, unless it is her wish to make an additional statement or any other details are required by the Committee. Once the Complaints Committee decides to proceed with the complaint it should draw up from the statement/s of the victim/complainant: The substance of the accusation of sexual harassment into explicit and distinctive charge. A statement of the accusation of sexual harassment in support of each charge, which shall contain; a statement of all relevant facts: a list of documents by which, and a list of witnesses by whom, the charges are proposed to be sustained. On receipt of a complaint the same will be registered and the Chairperson will call a meeting of the Complaint Committee. A register of complaints will be maintained. Separate files will be maintained for each case with the file number as on register. Notice of meetings of the Complaint Committee will be issued by the member with the approval of the Chairperson. The Complaint Committee is bound to maintain confidentiality during the time of the enquiry so as not to prejudice the proceedings. During an inquiry the quorum for all CPSHW's meetings will be one-third of the total membership. The Complaint Committee shall, within ten days of the receipt of a complaint, establish if there is a prima facie case of sexual harassment on the basis of both the definition of sexual harassment as given in this policy, and the jurisdiction of this policy. Reasons for not pursuing a complaint must be recorded in the minutes and made available to the complainant in writing. The Complaint Committee may form sub-committees from within the Committee members for such purposes as it may deem necessary. The entire process of enquiry should be completed within three months except for unavoidable circumstances which shall be recorded in writing. YWCA of India 16

19 Any Complaint Committee member charged with sexual harassment in a written complaint must step down as member during the inquiry into that complaint. The Complaints Committee while initiating and conducting enquiry proceeding should keep the following in mind The Five Rights Right to be informed of the charge. Right to receive document in support of charge. Right to have evidence led in the presence of the charge sheeted person. Right to led evidence in favour. Right to cross examine. In case where the complainant does not wish to be confronted by the charge sheeted person the committee can carry out the cross examination on behalf of the charge sheeted person. Process of Enquiry: Under the Government of India CCS(CCA) rule14 the Committee on Sexual Harassment is deemed as an Inquiry committee and not a fact finding body and therefore have to adhere to the procedure prescribed for enquiry under the same. Therefore to protect its decision against procedural lapse in the Court of law and to ensure the process of natural justice,the committee should follow the following procedures. Information to the person against whom the complaint has been received and enquiry being conducted- For this purpose a clear and explicit notice giving specific charges should be drawn up and intimated to the petitioner. The notice shall be in form of show cause asking for written explanation. Complaint-To enable the accused person to draw up a statement in defense, a copy of the complaint should be attached with the notice. Examination of witnesses- The witnesses as named in the complaint are required to testify before the complaint committee and submit their written statements duly signed. Statement of the accused person-the statement should be recorded in writing and signatures taken. The accused person is allowed to take assistance of any person on whom he/she has faith. Defence witnesses-the accused person is allowed to bring in witnesses in his favour and it is mandatory for the committee to record their written statements. However to call these witness at the same day as the petitioner or later is the prerogative of the committee. YWCA of India 17

20 Cross Examination -Both the complainant and the accused person should be given a chance to cross examine witnesses. Article 311(2) of the Constitution allows the accused person to cross examine witness within his/her presence. Re-examination of witnesses-the complaint committee is within its rights to re-exam the witnesses if so required Disciplinary Proceeding-In case of a Government employee the rule stated in the Constitution of India Article 311 is considered if no other rules for disciplinary proceeding have been drawn up. This rule authorizes the appointing authority to initiate disciplinary proceeding. Process of Dealing with the Complaint Issuing a Charge Sheet-Sexual Harassment is a misconduct and requires filing of a charge sheet, spelling out the facts, giving dates, time and nature of the incident. The Complaint Committee shall deliverer to the accused person the charge sheet and shall require the accused to submit, within ten days, a written statement of his defence and state whether he desires to be heard in person. If charges are denied, then an appropriate enquiry as per rules should be conducted Rejoinder to the charge sheet- At least three weeks time shall be given to the accused person to respond to the charges but the time may vary from case to case. Inquiry of the Rejoinder: The accused person may appear in person to present the rejoinder. On receipt of the written statement, the Committee may look into the defense presented against the charges levied. It should study carefully all charges which are not admitted, and where all the articles of charge have been admitted by the accused in his written statement of defense. The Committee shall record its findings on each charge after taking such evidence as it may think fit. On inquiry if the Committee is satisfied of the explanation and innocence of the accused person, it can decide to drop charges and close the proceedings. In case no reply is received, the Committee may proceed to hold the inquiry. If the accused person accepts the charges the punishment is imposed on basis of admission of guilt a confessional statement shall be recorded. If the accused person to whom a copy of the charges have been given does not submit the written statement of defense on or before the date specified for the purpose or does not appear in person before the Complaint Committee or otherwise fails or refuses to comply with the provisions of this rule, the Complaint Committee may hold the inquiry exparte. Admission of charges: If a confessional statement is recorded, it is necessary to scrutinize the same to see whether the person has accepted the charges as they are and not with digression. Apology is also a form of confession and should be dealt as acceptance of guilt. YWCA of India 18

21 Meeting with the Accused person: If the accused has not admitted to any of the charge in his written statement of defense or has not submitted any written statement of defense, but appears before the Complaint Committee, the Committee shall ask him whether he is guilty or has any defense to make. The Complaint Committee shall thereafter record the plea/statement, sign the record and obtain the signature of the accused thereon. If the accused fails to appear within the specified time or refuses or omits to plead, the Complaint Committee shall require the production of evidence by the complainants by which the charges are to be proved, and shall adjourn the inquiry to a later date not exceeding fifteen days, after recording an order that the accused may, for the purpose of preparing his defense inspect the documents of record of evidence submit a list of witnesses to be examined on his behalf; If the accused persons applies in writing for the supply of copies of the evidence, the Committee shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the inquiry proceedings. It is important to note that the interview with the accused person harasser should be carried out objectively. He should be allowed to respond to each allegation and should be told about the type of disciplinary action that may be taken if the allegations are true. Emphasis should be laid on the fact that the Committee is unbiased and will take into cognizance all facts that his statements are important for making the accurate assumption. If the accused person is uncooperative, he should be told in a nonthreatening way that his failure to cooperate will be considered as obstructing the investigation and may result in discipline, regardless of the investigation's outcome. Inquiry Proceedings- Once it is decided that inquiry will take place a notice needs to be issued giving the date, place and time of the proceedings. The principle of natural justice requires that an opportunity of hearing be given to each party. On the date fixed for the inquiry, the oral and documentary evidence by which the charges are proposed to be proved shall be produced by the complainant. Right to representation- While legal assistance is not allowed to the accused person, it may be considered were accusations against him are of serious nature and may result in dismissal of services. Presentation of evidence- The complainant of Sexual Harassment is also a witness and has to appear before the committee to present facts. The Complaint Committee shall deliver or cause to be delivered to the accused copies of the above statement and shall require the accused to submit, within ten days, a written statement of his defence and state whether he desires to be heard in person. YWCA of India 19

22 Production of fresh evidence/witnesses not listed earlier The Complaint Committee may if it deems fit before the close of the inquiry of complainant case, allow the complainant to produce evidence not included in the list given to the accused or may itself call for new evidence or recall and re-examine any witness. The accused shall have an opportunity of inspecting such documents before they are taken on the record. In such a case the accused person shall be entitled demand the copies of the fresh evidence.in case of new evidence the proceedings may suspended allowing time of atleast three days for the accused person to give his rejoinder/produce evidence in defense. However new evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence unless when there is an lacuna or defect in the evidence which has been produced originally. Deposition of the Accused person: After hearing the complainant and the accused person shall be required to state his defense, orally or in writing, as he may prefer. If the defense is made orally, it shall be recorded, and the accused shall be required to sign the record. A copy of the statement of defense shall be given to the complainant. The evidence on behalf of the accused persond shall then be produced. The witnesses produced by the accused shall then be examined and shall be liable to cross examination, re-examination and examination by the Complaint Committee. The Complaint Committee may, after the accused closes his case, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. Burden of proof: The prosecuting party has to lead evidence and to prove charges. However in some cases depending on the nature of charges given by the accused person the burden may be shifted on him/her. Disclosure of documents: The Committee can obtain material, information from all sources and channels and is not delayed by rules and procedures. However all documents that may go against the accused person must be disclosed to him/her with an opportunity to refute the charges/or give an explanation. The proceedings may be considered null and void if a document used for arriving at a finding is not disclosed to the accused person. If documents collected by the Committee will not be used for finalizing the findings, there is no need to bring these to the notice of the accused person and he/she cannot insist to the same. The accused person may ask in writing copies of the documents however due relevance of the documents required by him shall be indicated. The Complaint Committee shall, on receipt of the written request forward the copies. YWCA of India 20

23 Provided that the Complaint Committee may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case/or will compromise the investigation /or the security of the witness. Deposition of the Witness- There are two methods of recording the statement of the witnesses. First- recording the question and answers given Second - is recording the answers only Both methods are used commonly and are legally acceptable. The Complaint Committee shall summon the witnesses cited by the complainant and by the accused person. It may also summon any other witnesses that it deems fit. The Complaint Committee may also permit the testimony of any witnesses who volunteer to give such testimony. The witnesses shall be examined by the complainant and may be cross-examined by the accused. The Complaint Committee may also put such questions to the witnesses as it deems fit. The victim may not be called for re-examination once she made her statement at the initial meeting, unless it is her wish to make an additional statement or if any other details are required by the Committee. Witnesses should be told as little as possible about the details of the complaint in order to protect confidentiality and reduce the employer's exposure to defamation claims. They should also be informed that failure to cooperate can lead to discipline and that they will not be retaliated against for cooperating. Each person who is interviewed should prepared and sign a statement outlining the information they have provided, if they do not object. If they object to signing, the objection should be witnessed by a neutral individual. If the session is tape recorded or videotaped, the person being interviewed should be informed before questioning begins. When physical violence or sexual assault are alleged, both parties should be told that reports will be made to the appropriate legal authorities. Once the initial interviews have been conducted, individuals should be questioned again based on the corroborating or conflicting testimony of other witnesses. Stories may change when the parties are confronted with evidence that they hoped would not be presented. The following are some other points to remember when interviewing witnesses: Inform the person that it is their moral duty and responsibility to report on harassment YWCA of India 21

24 Tell them about the policy of the Employer concerning Sexual Harassment Reconfirm that there will be no retaliation on giving witness/ cooperation That while making their statements they should not be judgmental and would be impartial as possible They should give as much details as possible. The Committee shall not make supportive admissions. Add to the witness views or lead the witness with their comments. Show outrage or dismay at any answer (this reaction may cause the story to change); promise complete confidentiality or anonymity, or that punishment will be less severe if the employee confesses; The Committee shall document as much as possible about the interview, including the person's answers, gestures, appearance, accuracy of memory, and overall credibility. Examination and Cross examining of witnesses: An opportunity has to be given to the accused person to cross examine witnesses produced against him/her. If no opportunity for effective cross examination is given the inquiry can be declared null and void. Failure to cross examine will not negate the inquiry if there is no factual doubt on the statements given by the witnesses. The Committee can control the cross examination if the accused person asks frivolous or inappropriate questions from the victim or witnesses. The accused person can also be given an opportunity to produce his/her witnesses to give credence to his/her explanation. However the Committee can refuse to cross examine a witness if it feels that it has no bearing to the case. At close of the proceedings the Committee may ask questions to clarify points however it shall not question the witnesses elaborately as it may project a bias and negate the proceedings. A record of the proceedings of each hearing shall be recorded and duly signed by all Committee members. Hearsay evidence: Hearsay evidence can be considered if it is logically possible and gives reasonable credibility Report to the Disciplinary Authority The Complaint Committee shall consider the seriousness of the offence in recommending the nature of disciplinary action and the quantum of punishment has to be commensurate with the gravity of the offence. The Complaint Committee shall also take into account the vulnerability of victim and the potential for continuing coercion from the accused while making its report. YWCA of India 22

25 The records of inquiry submitted by Complaint Committee, to the Disciplinary Authority shall include: the report prepared by it the written statement of defense, if any, submitted by the accused person. the oral and documentary evidence produced in the course of the inquiry. the orders, if any, made by the Complaint Committee in regard to the inquiry. The Disciplinary Authority to which the report is submitted/ forwarded shall act on the recommendations of the Complaint Committee and shall impose on the accused such penalty as it may deem fit. Procedural Safeguards during Inquiry The Complainant shall not be compelled to face the accused against her wishes. The option to have face to face questioning lies with the and the same may be explained to her and her consent taken in writing. The character of the complainant/ alleged victim shall not be the subject matter of cross examination. Filing of a complaint shall not have any reflection on the complainant's status/ job/salary/promotion, grades etc. It cannot hold any repercussions on any sort. No one can refuse/disallow to the complainant to work in any particular department or any particular task because of a sexual harassment complain. No opposing complaints/or inquiries/or show cause notices/or memos/transfer/or disciplinary proceedings against the complainant/s will be acted upon by anyone till such time as the Complaint Committee completes its inquiry report. The Complaint Committee shall recommend action against anyone who intimidates the complainant or members of the Complaint Committee, during or after the inquiry. After submission of the final report, confidentiality should be maintained, if the complainant so desires, by withholding the complainant's name and other particulars that would identify her. Procedure for site inspection: There may be instances were site visit may be required. The Complaints Committee may decided to form a Taskforce to visit the site. However the presence of the NGO representative should be ensured and the formation and purpose of this task force should be minuted with due authorisation and terms given in writing. An entry shall be made at the site on this visit without stating the purpose. This is to establish the date of the physical verification of site and respective witnesses if any. YWCA of India 23