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The essential guidelines for drafting an ideal anti-sexual harassment policy are listed.
It must explain what the policy is about and why it is important.
In simple terms, an anti-sexual harassment policy provides protection to employees against sexual harassment and provides for a mechanism for the prevention and redressal of complaints of sexual harassment.
The Sexual Harassment of Women Act (Prevention, Prohibition and Redressal) Act, 2013 (Act) makes it an employer’s duty to provide employees with a safe working environment at the workplace. A safe working environment ensures that fear of unwanted or unwelcome sexual advances does not interfere with an employee’s work, thereby contributing to greater productivity.
It must ideally be gender-neutral.
Legally, only women are protected under Sexual Harassment laws in India. But sexual harassment has similar psychological and/or physical effects for all individuals, and in their greater interest, an anti-sexual harassment policy must cater to all employees regardless of their gender.
This should be further aligned with all the communication material, sensitization sessions and activities planned out for raising awareness on this issue in the organization. The most common mistake leaders end up making is in choosing a gender-neutral or all-encompassing policy and failing to understand the nuances of sexual harassment and its impact on different genders. It is not advisable to leave the issue untouched and allow individuals to form their own interpretations.
It must state who are the stakeholders the policy is applicable to.
Employees – All stakeholders operating in the physical and virtual realm of your organization must be covered under this policy.
Associated parties – The anti-Sexual Harassment policy must facilitate the redressal of complaints of sexual harassment by employees against the company’s clients, partners and associated vendors.
A company may modify the scope of this policy based on the type of work it does, and the people it’s employees are likely to come into contact with.
It must state what actions fall under its ambit.
The policy must define what is meant by ‘Sexual Harassment’. Sexual harassment is any unwelcome conduct of a sexual nature that makes a person feel offended, humiliated and/or intimidated. It can involve one or more incidents and actions constituting harassment may be physical, verbal, and nonverbal. This creates an environment that is hostile, intimidating or humiliating for the recipient.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines Sexual Harassment as any one or more of the following unwelcome acts or behaviour (whether directly or implicated)
- Physical contact and advances; or
- A demand or request for sexual favors; or
- Making sexually coloured remarks; or
- Showing pornography; or
- Any other unwelcome physical, verbal or nonverbal conduct of sexual nature.
A sexual harassment policy may include examples but they must give a disclaimer that they are not exhaustive.
It must state where it is applicable.
The policy must define where it is applicable. Besides the establishment’s campus (includes parking lots, ATMs etc.), the policy must also include and define any other location which might be visited by an individual in the capacity of an employee of the company, but might not fall inside the campus of the establishments, under the ‘extended workplaces’. This may include any other work sites, or transport provided by the establishments to commute to work.
It must give information about the Complaint Redressal Committee or Internal Complaints Committee
While the Act mandates the creation on an Internal Complaints Committee (ICC) for women in all administrative units/offices of establishments in India, an ideal anti-sexual harassment policy must create an ICC that accepts complaints from all genders.
It must state the complaints procedure.
While Indian Sexual harassment laws mandate a complaint in writing, the policy may allow for a different mode of making a complaint (Telephonic, Verbal or over E-Mail). The policy should also allow that in case an aggrieved employee is unable to make a complaint on account of his/her physical incapacity, a complaint may be filed by:
- his/her relative or friend; or
- his/her co-worker; or
- an officer of the National Commission for Women or State Women’s Commission in case of a woman employee; or
- Any person who has knowledge of the incident, with the written consent of the Aggrieved Individual.
It must state the procedure and timeline of redressal
Informal Resolution Option: An aggrieved employee has the right to seek conciliation if he/she does not want to pursue an inquiry into the complaint, provided that no monetary settlement shall be made as a basis of conciliation. Where a settlement is arrived at through conciliation, the ICC shall not undertake any further inquiry.
Timelines: The policy must state the time period within which the Complaints Committee must take constructive steps, and conduct an investigation to come up with a judgment. This holds the ICC accountable in instances of delayed redressal.
Legally the timelines must be as:
- The ICC is legally required to complete their inquiry within 3 months of the date of the complaint. The inquiry report has to be issues within 10 days of the date of completion of inquiry.
- The employer is required to act on the recommendations of the ICC within 2 months of the receipt of inquiry report.
- An appeal against the decision of the committee is allowed within 3 months of the date of recommendations.
It must state Sanctions and Disciplinary measures.
Most instances of sexual harassment and their investigations get stuck at a level where the affected parties (accused and aggrieved) are not able to get aligned with the decisions of ICC’s investigation. This results from the absence of definition for different kinds of sexual harassment and their occurrences for any investigation that ICC comes across. It also makes the investigation procedure more efficient if the degree of offences, their respective consequences and interim measures during the investigations are defined well in advance for all parties involved to take reference from.
The policy must state sanctions concurrent to the gravity and extent of harassment. They may include:
- Verbal or written warning
- Counselling
- Adverse performance evaluation
- Reduction in wages
- Transfer
- Demotion
- Suspension
- Dismissal
It must state the Penal Consequences of Sexual Harassment.
In addition to the action which the ICC may initiate, if prima facie, any conduct of an employee amounts to a specific offense under specific sections of the Indian Penal Code, the policy must allow the ICC to initiate appropriate action in accordance with law by making a complaint with the appropriate authority (Local Police) under relevant provisions of the code. The ICC must then facilitate the workings of the law-making agency.
It must state the compensation to an aggrieved employee.
The policy must state the appropriate compensation that the company must give to the aggrieved employee. However, every incident will bring a different complexity and elements to be considered for compensation and must be looked as a case in isolation. For the purpose of determining the sum to be paid, the ICC shall keep in mind:
- The mental trauma, pain, suffering and emotional distress caused to the aggrieved employee
- The loss in the career opportunity due to the incident of sexual harassment
- Medical expenses incurred by the aggrieved party for physical or psychiatric treatment
- The income and financial status of the respondent
- Feasibility of such payment in lump sum or in installments
It must provide protection to the Complainant, Respondent & Witnesses
The act of coming forward and making a complaint against higher order of an establishment might lead to further victimization or discrimination against the aggrieved employee. The policy must commit to ensuring that no employee who brings forward a harassment concern, is a witness in the disciplinary procedure, or is alleged to be a violator of this policy, is subject to any form of reprisal. The policy must state disciplinary sanction in case of any reprisal.
It must list out the methods of its Monitoring and Evaluation.
The only way to understand if the policy is being implemented properly is by periodically monitoring its performance, and its success in bringing justice to aggrieved parties. The policy may mandate an annual external-audit regarding the performance of the ICC, number of cases received by it and the success with which it has disposed of cases. The policy must also state evaluation through other means, including questionnaires completed by employees and feedback from aggrieved employees. On the basis of this audit, the company may evaluate the effectiveness of the policy and the complaints procedure.
It must guarantee Confidentiality to any complainant, respondent witness(es).
The policy must understand that it is difficult for the victim to come forward with a complaint of sexual harassment. It must recognize the victim’s interest in keeping the matter confidential. The policy must mandate confidentiality be maintained throughout the investigatory process to an extent which is practicable and appropriate under the circumstances. This includes but is not limited to, keeping all records of complaints, including contents of meetings, results of investigations and other relevant material confidential, except where disclosure is required under disciplinary process.
It must state Sanctions against frivolous complaints
So as to ensure that the protections contemplated under the policy do not get misused, provisions for action against ‘false or malicious;’ complainants must be made. Any false complaint by a woman specifically, must be taken to the District Officer assigned under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Sanctions against employees making false complaints may include:
- A written apology
- Warning
- Reprimand or censure
- Withholding of promotion
- Withholding of pay rise or increments
- Terminating the complainant from service
- Undergoing a counselling session
- Carrying out community work.
It may provide information on a refresher course for employees in a certain duration of time.
Drafting and implementing an anti-sexual harassment policy is futile if employees are not aware about it. In order to ensure that employees have constant knowledge of their rights under this policy, the policy may mandate the attendance of all employees to an awareness/refresher course on the policy every 6 months, or a similar short duration.
It may have Annexures that provide related information:
The Anti-Sexual Harassment policy may include an indicative list of basic Do’s and Don’ts. This list may not be intended to be construed as an exhaustive list.
- It may include information on the dissemination of this policy.
- It may carry the format of the complaint along with a sample, which would make it easier for aggrieved employees to file a complaint.
- It may carry an infographic that might give the process of redressal against an incident of sexual harassment.
