Obligations of an Employer

Who is an employer under the Act?

The law defines an employer to mean any person responsible for the management, supervision and control of the workplace and management includes the person or board or committee responsible for formulation and administration of polices for such organisation.

The employer is duty bound to initiate disciplinary action against the officer involved in sexual harassment, as it involves human dignity of women enshrined under Articles 14, 15 and 21 of the Constitution and the inquiry must be fair and reasonable.

What are the duties of an employer?

The law has provided for several duties of the employer. Such duties begin at the time when an employer has to set up an internal complaints committee to ensure that aggrieved can file their complaints and seek redressal to such complaints and end at the time when the employer has provided certain data, in accordance with the provisions of the law, in relation to sexual harassment in its annual report. Further, while the law provides that employers should treat sexual harassment as misconduct and initiate action for such misconduct, it also provides that employers must focus on ‘prevention’ of sexual harassment as well and take certain preventive measures. Hence, the law has provided for duties of an employer, some of which are provided below:

a) Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.

b) Display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee.

c) Organise workshops and awareness programmes at regular intervals for sensitising the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee. With respect to workshops and awareness programs, it says that employer shall:

• Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women
• Carry out orientation programmes and seminars for the Members of the Internal Committee
• Carry out employees awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as may be considered necessary
• Conduct capacity building and skill building programmes for the Members of the Internal Committee
• Declare the names and contact details of all the Members of the Internal Committee
• Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitising the employees with the provisions of the Act

d) Provide necessary facilities to the Internal Committee for dealing with the complaint and conducting an inquiry.

e) Assist in securing the attendance of respondent and witnesses before the Internal Committee.

f) Make available such information to the Internal Committee as it may require having regard to the complaint.

g) Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code.

h) Cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.

i) Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

j) Monitor the timely submission of reports by the Internal Committee.

The 9th US Court of Appeals, in Yamaguchi vs. Widnall, [1997] 109 F. 1475, had said that an employer is liable for a co-worker’s sexual harassment only if, after the employer learns of the alleged conduct, he fails to take adequate remedial measures. These measures must include immediate and corrective action reasonably calculated to end the current harassment and to deter future harassment from the same offender or others.

In Ellison vs. Bardy, [1991] 924 F. 872, the US Court of Appeals had held that to avoid liability an employer must take at least some sort of disciplinary action against a harassing co-worker in order to prevent future workplace sexual harassment and employers send the wrong message to potential harassers when they do not discipline employees for sexual harassment. It also held that employers have a duty to express strong disapproval of sexual harassment, and to develop appropriate sanction.

Why should employers comply with the law?

The internal complaints committee set up in your organization is required to prepare, in each calendar year, an annual report and submit the same to the employer and the District Officer. The annual report has to mention the number of cases filed and disposed of and the number of workshops or awareness programs against sexual harassment carried out by the organization. This data has to be kept in record by the organization because of three reasons:

(1) Every year the employer has to include, in the annual report of the organization, the number of cases of sexual harassment filed and disposed of. If the employer is not required to prepare any annual report, he has to intimate such number of cases to the District Officer

(2) Government can call any employer to furnish any information relating to sexual harassment at any time. It can also inspect records and the workplace and every employer will be bound to co-operate.

(3) Law prescribes for penalty extending upto Rs. 50,000 if an employer does not comply with the law and penalty also includes cancellation of license to do business (in case of repeat offence).