Campus Safety 101

What Constitutes Sexual Harassment?

Sexual harassment, in general, can be understood as unwanted conduct with sexual undertones if it occurs or

• which is persistent and which demeans, humiliates or creates a hostile and intimidating environment
• is calculated to induce submission by actual or threatened adverse consequences.

What are some acts that can be considered as sexual harassment?

Sexual harassment includes one or all of the following unwelcome acts or behaviour, whether directly or by implication –

• Physical contact or advances
• A demand or request for sexual favours
• Making sexually coloured remarks
• Showing pornography or asking if you want to see pornography
• Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

What would constitute “Sexual Harassment at the Workplace?”

Sexual Harassment at Workplace includes one or more of the following circumstances with explicit or implicit sexual undertones –

• Implied or explicit promise of preferential treatment in her employment.
• Implied or explicit threat of detrimental treatment in her employment.
• Implied or explicit threat about her present or future employment status.
• Interference with her work or creating an intimidating/ offensive/hostile work environment for her.
• Humiliating treatment likely to affect her health, safety or integrity.

The Sexual Harassment of Women at Workplace (Prevention, Prohi- bition and Redressal) Act, 2013, and the University Grants Commission (Prevention, prohibition and redressal of sexual harassment of women employees and students in higher educational institutions) Regulations 2015, makes it mandatory for all employers and HEI respectively to constitute an Internal Complaints Committee to look into the matter of sexual harassment at workplace.

ICC mainly has the following three-fold functions –

• Receive complaints on sexual harassment at the workplace from an aggrieved woman.
• Inquire into the complaint received.
• Make recommendations to the employer on the action required pursuant to its inquiry of such complaint made.

These functions are carried out by the members of Internal Complaints Committee (ICC). Every Executive Authority in HEI shall constitute an ICC with an inbuilt mechanism for gender sensitization against sexual harassment. All the members are to be nominated by the Executive Authority.

The ICC shall have the following composition –

• Presiding Officer: A woman faculty member employed at a senior level (not below a Professor in case of a university, and not below an Associate Professor or Reader in case of a college) at the educational institution.
• Employee Members: Two faculty members and two non-teaching employees, preferably committed to the cause of women or who have had experience in social work or have legal knowledge.
• External Member: One member from amongst non-government organisations or associations committed to the cause of women or a person familiar with the issues relating to sexual harassment.

Apart from these, ICC ought to have 3 students in the committee if the matter involves students. These students shall be enrolled at the undergraduate, master’s, and research scholar levels respectively, and should be elected through transparent democratic procedure.

The UGC Regulations also provides for any existing body which is already present at the HEI and functioning with the same objective as the ICC to be reconstituted as the ICC. For example – many universities have bodies like Gender Sensitisation Committee Against Sexual Harassment (GSCASH) which has similar objectives and functioning as that of an ICC. In such cases, HEI can reconstitute GCASH as ICC and ensure that the reconstitution is as required under the UGC regulations.

Quick FYI! – Note: 50% members of the ICC must be women.

There are three contexts in which ICC can make recommendations –

1. Interim relief – granted during the pendency of inquiry/complaint.
2. Against the respondent – if the charges are proved.
3. Against the complainant – if the allegations are proved to be malicious.
4. Compensatory recommendation.
5. Dismissal – if charges are not proved.

Interim Relief

During the pendency of the inquiry, on written request made by aggrieved woman, ICC may recommend employer to –

1. Transfer the complainant or the respondent to another section or department to minimise the risks involved in contact or interaction.
2. Grant leaves to the aggrieved with full protection of status and benefits for a period up to three months.
3. Restrict the respondent from reporting on or evaluating the work, performance, tests or examinations of the complainant.
4. Ensure that the respondent is warned to keep a distance from the complainant.
5. Restrain the entry of the respondent into the campus, in case of definite threat.
6. Take strict measures to provide a conducive environment of safety and protection to the complainant against retaliation and victimisation as a consequence of making a complaint of sexual harassment.

Quick FYI! – The three months leave provided to the respondent would be in addition to leave she would be otherwise entitled to.

Quick FYI! – If the HEI feels the need, it can take these actions suo-moto, without waiting for the ICC to make such recommendations.

1. Against the respondent: If the committee arrives at the conclusions that the charges against the respondent have been proved, the first step that needs to be taken by the HEI is to lavy punishment on the offender in accordance with the service rules of the HEI.

In case where the offender is an employee, apart from abiding by the service rules,  the HEI may take the following actions –

1. Withholding of promotion, pay rise or increments.
2. Termination of service.

In cases where the offender is a student, the HEI may take the following actions – 

1. Withhold privileges of the student such as access to the library, auditoria, halls of residence, transportation, scholarships, allowances, and identity card.
2. Suspend or restrict entry into the campus for a specific period.
3. Expel and strike off name from the rolls of the institution, including denial of readmission.

In addition to other punishments, the following actions can also be taken against both the employee and student offenders –

1. Ask to render an apology in writing.
2. Issue a warning.
3. Can offence committed and the action taken can be mentioned in the offender’s permanent records.
4. Award reformative punishments like undergoing mandatory counselling or performance of community services.

Against the complainant

The POSH Act and the UGC Regulations inculcate certain provisions against false or malicious complaints, to ensure that the Act and the Regulation introduced  for the protection of employees and students from sexual harassment do not get misused.

Quick FYI! – A mere inability to substantiate a complaint, or provide adequate proof does not count as false or malicious complaint. To make the complainant liable for punishment, there should be an inquiry that lays down clear and enough proof –

1. Of a frivolous or a malicious complaint, or
2. That the complaint was made knowing it to be untrue, or
3. That forged or misleading information has been provided during the inquiry

Quick FYI! – If any witness has given false evidence or produced forged/ misleading documents, then the employer of the witness can be asked to take action. Irrespective of the behaviour of the complainant and respondent, if the evidence provided by the witness is found out to be false, it is the witness who will be liable for the punishment.

Compensatory recommendation

The aggrieved person is entitled to the payment of compensation. Hence, the ICC can make recommendations for the payment of compensation to the aggrieved woman. The HEI shall issue directions to the offender for the payment of such compensation as recommended by the ICC, and is agreed upon by the Executive Authority.

The compensation decided shall be based on the following parameters –

1. Mental trauma, pain, suffering and distress caused to the aggrieved person: one can submit their doctor’s report(s)/therapist’s report(s) saying their mental health has deteriorated to ascertain it.
2. The loss of career opportunity due to the incident of sexual harassment: For eample – did not get promoted, did not get confirmed as a permanent employee, did not pass their course, did not graduate on time, their grades or work performance dropped, they were forced to drop out or quit etc.
3. The medical expenses incurred by the victim for physical, psychiatric treatment:  one can submit their therapy bills, any psychiatric medicines bills/prescriptions etc to ascertain it.
4. The income and status of the alleged perpetrator and victim: It is important to remember that the respondent’s ability to pay is an important factor while deciding compensation. The ICC/LCC can only recommend what the respondent can pay.
5. The feasibility of such payment in lump sum or in instalments.

The employer may deduct the compensation money directly in case the offender is an employee. If the employer is unable to deduct due to respondent being absent from duty or termination of contract, the ICC may direct the respondent to pay the sum directly to the aggrieved woman.

Dismissal: 

If the ICC arrives at the conclusion that allegations against the respondent have not been proved, it can recommend to the employer to take no further action on the complaint.

Quick FYI! – The employer must act upon the ICC recommendations within 60 days of receipt of the report.

How does one file a complaint?

An aggrieved person is required to submit a written complaint to the ICC within three months from the date of the incident. In case a series of incidents have happened, a person may file the complaint before the ICC within a period of three months from the date of the last incident.

A written complaint addressed to the ICC needs to be submitted with the committee. In case the complainant is unable to submit a written complaint for any reason, it is the responsibility of the ICC to provide her all the assistance that is needed for her to submit the complaint in written form.

How do I reach out to the ICC?

As per the UGC Regulations, it is the responsibility of the HEI to make all sections of the institutional community aware of the contact details of members of Internal Complaints Committee, as well as the complaints procedure. However, if this is not done, then one can contact the employer/head of the department or institution/human resource department to obtain information about the ICC constituted.

How does ICC inquire into a complaint?

The Complaints Committee will conduct an inquiry into the complaint by calling all the concerned parties i.e. complainant, respondent, witnesses etc. Minimum of 3 ICC members including Presiding Officer/Chairperson must be present while conducting inquiry.

For the process of inquiry, the ICC will have same powers as vested in a Civil Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters –

1. Summoning/enforcing the attendance of any person and examining them on oath.
2. Requiring the discovery and production of documents.
3. Any other matter which may be prescribed.

Quick FYI! – The inquiry must be completed within a period of 90 days.

How does the proceeding take place?

Procedure

The complainant shall submit 6 copies of the complaint along with supporting documents to the ICC. They also need to submit names and addresses of witnesses.

The ICC shall send one copy of the complaint to the respondent within a period of seven working days of receiving the complaint. Upon receipt of the copy of the complaint, the respondent shall file his or her reply to the complaint along with the list of documents, and names and addresses of witnesses within a period of ten working days.

Quick FYI! – Parties are not allowed to bring legal representation at any stage of the proceedings.

ICC will make inquiry into complaint in accordance with principle of natural justice 

1. 1. 1. 1. Rule against bias: They should proceed fairly, and the inquiry should be conducted in an unbiased manner. Bias can be both conscious and unconscious, and may include – personal bias, pecuniary bias, subject-matter bias, departmental bias, preconceived notion bias.
         2. Rule of Audi Alteram Partem: Both the parties should be given an equal opportunity to be heard. No decision should be taken without hearing both the parties.

Quick FYI! – ICC can terminate the proceedings or give an ex-parte decision if the respondent or the complainant fail to show up for three consecutive hearings. However, this termination/ex-parte order must be passed only after giving a 15 days written notice in advance to the failing party. The complainant can also ask the ICC to make an ex-parte decision if the respondent has acted in the above mentioned manner.

There are certain details related to the case that shall not be shared with the press, media or the public in general, and cannot be put up in any public domain. These details include –

1. Identities and addresses of the complainant, respondent and the witnesses. The respondent shall not tell anyone who they are or where they live.
2. Information related to conciliation and inquiry proceedings.
3. Contents of the complaint that reveals the identity of the respondent.
4. ICC recommendations.

Quick FYI! – Anyone who breaches confidentiality is liable for punishment and the employer can recover Rs 5,000 from the failing party for such violation.

Quick FYI! – RTI can still be filed for information that can be made public. For example – Number of complaints received by the ICC, the number of cases where recommendations were made, time taken to make recommendations etc.

Apart from enabling and ensuring fair trial, ICC has various other responsibilities. 

1. It needs to provide assistance if an employee or a student chooses to file a complaint with the police.
2. Provide mechanisms of dispute redressal and dialogue without undermining complainant’s rights.
3. Protect the identities of all parties involved.
4. Provide interim relief during the pendency of the complaint.
5. Provide mandatory relief by way of sanctioned leave or relaxation of attendance requirement.
6. Ensure that victims or witnesses are not victimised or discriminated against while dealing with complaints
7. Ensure the prohibition of retaliation or adverse action against covered individual.
8. Annual Report
   The ICC is responsible for creating an annual report and submitting it to the HEI. This annual report needs to be prepared every calendar year and should incorporate the following –

• Number of complaints of sexual harassment received in the year.
• Number of complaints disposed off in the year.
• Number of cases pending for more than 90 days.
• Number of workshops/awareness programmes against sexual harassment carried out in the year.
• Nature of action taken by the employer.

1. Ensure that the provisions against sexual harassment is notified publically and that it is frequently disseminated widely.
2. Organise training programs and workshops officers, functionaries, faculty and students according to the SAKSHAM Report, for sensitisation and awareness.
3. Act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students and some male students and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.
4. Publicly commit itself to a zero-tolerance policy towards sexual harassment and reinforce its commitment to creating its campus free from discrimination, harassment, retaliation or sexual assault at all levels.
5. Display the penal consequences of sexual harassment, order constituting ICC, at a conspicuous, accessible location. In this regard, the HEI must display the information and contact details of members of the Internal Complaints Committee, complaints procedure etc.
6. Organise regular orientation or training programmes for the members of the ICC to deal with complaints, steer the process of settlement or conciliation, etc., with sensitivity.
7. Provide necessary facilities to ICC for conducting the inquiry.
8. Since research students and doctoral candidates are particularly vulnerable the HEIs must ensure that the guidelines for ethics for Research Supervision are put in place.
9. Proactively move to curb all forms of harassment of employees and students whether it is from those in a dominant power or hierarchical relationship within HEIs or owing to intimate partner violence or from peers or from elements outside of the geographical limits of the HEI.
10. Treat sexual harassment as a misconduct under service rules and initiate action for misconduct if the perpetrator is an employee, and as a violation of the disciplinary rules (leading up to rustication and expulsion) if the perpetrator is a student.
11. Monitor the timely submission of reports by the ICC.
12. Prepare an annual status report.

Penalties can be levied against an institution by the ICC for –

1. If the HEI fails to constitute an ICC
2. Fully contravenes or repeatedly fails to comply with the obligations and duties under the POSH Act as well as the UGC Regulations.
3. Does not implement the provisions of the ICC.

If the HEI fails to fulfil its responsibilities or duties, the ICC may, among other penalties, withdraw its declaration of fitness to receive grants, declare the institution ineligible for consideration for any assistance, inform the general public through newspaper and other media outlets that the university does not provide for a zero-tolerance policy against sexual harassment, recommend the affiliating university for withdrawal of affiliation, recommend the Central or State government to withdraw its recognition of the HEI.

These penalties are serious in nature and have been provided so that the HEIs take active steps to ensure a zero-tolerance policy against sexual harassment and strict compliance to the ACT and Regulations.

Quick FYI: No action shall be taken by the Commission under these regulations unless the Institution has been given an opportunity to explain its position and an opportunity of being heard has been provided to it.

One of the best aspects of the UGC Regulations is its inclusive language. The Regulations have been drafted after taking into consideration the diverse identities of individuals, and recognises the fact that certain sections of the society are more vulnerable to harassment and discrimination than others because of their marginalised and/or intersectional identities.

The Regulations mandates the HEI to act decisively against all gender-based violence perpetrated against employees and students of all sexes recognising that primarily women employees and students, and students of the third gender are vulnerable to many forms of sexual harassment and humiliation and exploitation.

The Regulations also state that vulnerable groups are particularly prone to harassment and also find it more difficult than others to complain. Further, it provides for who may be recognized as vulnerable groups. Vulnerability can be socially compounded by region, class, caste, sexual orientation, minority identity and by being differently abled. Enabling committees must be sensitive to such vulnerabilities and special needs.

This being part of the UGC Regulations mandates HEI to pay special attention to employees and students falling in the vulnerable groups. HEI should conduct not only regular gender sensitisation training, but also awareness and sensitivity training for all sections of the HEI towards vulnerable groups. This is because the nature of the UGC Regulations is not directive, but informative. A thorough reading of the Regulations make it clear that the language adopted in it aims not towards providing punitive measure against sexual harassment, but to prevent it before happening. Hence, it is extremely important that the HEI takes all measures to not only aware its community of the what sexual harassment is and the redressal mechanisms under the POSH Act, but also to sensitize and aware its community through regular workshops on various aspects of diversity, vulnerabilities, gender and gender-based harassment, violence and discrimination.

Filing a complaint can be intimidating and overwhelming, especially without guidance or easy to access information on the subject. For quick help, here are a few things to keep in mind while filing a complaint –

• Set out every single instance of harassment that you can remember in your first complaint itself as this forms the basis for the entire ICC proceedings, and any proceedings thereafter as well.
• When you’re putting together evidence, look at ways to establish a pattern of behaviour. Go through all the screenshots on your phone, Whatsapp chats, emails, sms-es etc and attach as much “proof”/evidence as you can to your complaint. This includes any conversations in general that you had about this person who harassed you being awful, any conversations regarding POSH Act/ICC/MeToo/etc, any conversations where your friends/relatives were encouraging you to file a complaint/address the harasser’s behaviour in any way. Most important is any conversations with the harasser themselves, including work-related communication, that you can use to show proof of any of the behaviours alleged. While it is rarely, if ever, possible to concrete proof of harassment, given the nature of sexual harassment, your focus should instead be on convincing the ICC that there is a greater probability that they did, in fact, harass you, than that they did not.
• When you are taking screenshots of chats/messages/emails to submit along with your complaint, try to get the date stamp in – having things with specific dates helps you make your case more robust.
• Ask your friends, relatives, classmates who you have spoken to about the harassment if they would be willing to be your witness, and start drawing up a list of possible witnesses from day one itself. You can also ask anyone else who has had similar experiences with the person you are filing a complaint against if they are willing to be your witness.
• If the harassment you faced was ongoing or prolonged or basically took place over a period of time, try to cull out how this person’s behaviour towards you established a pattern of harassment and how this made the workplace atmosphere bad and hostile for you, worsened your ability to work, made you feel unsafe at work, made you feel uncomfortable, made you monitor/check your own behaviours in ways that you would not otherwise.
• Ask your friends, relatives, classmates, anyone at all that you spoke to about what you were going through, to read your complaint and add anything they remember you said to them.
• Try to use formal as well as the language of the Act, and also refer to the provisions of the Act while writing your complaint. By referring to provisions from the Act, you are basically giving the ICC no option but to take up your complaint as you yourself have not only clearly laid out everything you have experienced, but are also telling the ICC how and why this constitutes sexual harassment as per the Act.
• In your complaint, mention any other harassment that you are facing as a result of you filing a complaint against someone, speaking out against them, harassment or discrimination by peers due to your complaint, or the harassment you are facing for rejecting this person’s advances. For example – professor grading you poorly, getting reprimanding letters, any act that is hampering your academic progress/career progress.
• Talk about your mental health taking a toll, proof of family members or friends checking up on you post the harassment.
• Whenever you refer to any document in any written communication to any authority – administration, ICC, LCC etc, and particularly any document that is important for your case, make sure you give as many identifying details about the document as possible – date, what the document is called, who it was sent to/sent by, if it has any specific number assigned to it (for e.g. complaint number, letter number etc.)

Quick FYI! Always ask for a signature and date, preferably with some stamp if possible, acknowledging receipt of all your communication with LCC, ICC.