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Employers Now Liable to Control Sexual Harassment at Workplace

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Now, anyone proved guilty of sexual harassment at the workplace may face a jail sentence of up to six months or a fine of up to Rs 50,000 or both, depending on the nature of the harassment.
 
--By Akhilesh Tripathi
 
Those harassing their co-workers and colleagues with sexual intention better beware and give up such acts. The government has introduced a new law titled “Sexual Harassment at the Workplace (Eradication) Act 2014” to curb such harassment and punish the guilty. The Act which was published in the National Gazette on November 21, 2014, has also tried to make the employers more accountable to control incidents of sexual harassment at the workplace.
 
Liability on Office Management
According to the new law, office managements are now liable for preventing and controlling sexual harassment at the workplace. The Act requires every office, government as well as private, to develop a mechanism for hearing complaints against sexual harassment within its premises. Section 5 of the Act requires the employers to make necessary provisions for the eradication of sexual harassment at the workplace in the terms and references of the service contract of the employees. Similarly, as per this Section, the employers have to make the employees and service seekers alert towards sexual harassment in order to prevent such incidents, have to keep a complaint box inside the office, and have to provide psychological counseling to the victims as per the need.  
 
According to the Act, victims of sexual harassment at the workplace or anyone on their behalf can file complaints with the management against the perpetrators and the management has to start investigations immediately to settle the case within 15 days. If the investigation shows that the complaint is genuine, the management can broker reconciliation if both sides agree or ask the accused to seek pardon from the victim, or formally warn or ask the accused to pay compensation to the victim or take departmental action against the accused or take all these actions.
 
Similarly, Section 9 (1) of the Act says that the office management cannot sack, transfer or take any other departmental action against any employee just because the latter made a complaint of sexual harassment. If the office management takes such action, the employee can submit an application to the Chief District Officer (CDO) mentioning the action taken by the management.   
 
Complaint Hearing Officer – CDO
The Act has also set out a provision under which the victims of sexual harassment at the workplace or anyone on their behalf can file a complaint with the CDO within 90 days of harassment, regardless of whatever the office management does regarding the complaint filed with it. The victims or anyone on their behalf can also complain against the management if the latter fails to settle the harassment complaint within the stipulated time. Similarly, either side can appeal to the CDO if they disagree with the management’s decision on the complaint. 
 
If the complaint is against the CDO himself, the Regional Administrator will hear the complaint. Either side can move the Appellate Court against the verdict of the CDO.
 
The Act has defined workplace as any government office, constitutional body and public institution partly or wholly owned by the Government of Nepal, and any organization, institution, business firm or service center established under the existing laws. 
 
Monitoring by Women’s Commission
The Act provides powers to the National Women´s Commission to monitor and examine whether or not the office management has implemented the provisions mentioned above to control sexual harassment at the workplace.
 
What Construes Sexual Harassment? 
The Act has defined physical touching or attempt to touch with sexual intent, using or demonstrating with words, pictures, papers, audio-visuals or other vulgar and seductive materials, and talking about sexual activity, as acts of sexual harassment. Likewise, writing, speaking or signaling with vulgar and sexual matter, proposing for sexual activities and teasing or annoying with sexual intent are also defined as acts of sexual harassment.
 
However, acts conducted with the purpose of educating, informing, researching, providing medical treatment or saving life cannot be construed as sexual harassment.
 
Punishment
Now, anyone proved guilty of sexual harassment at the workplace may face a jail sentence of up to six months or a fine of up to Rs 50,000 or both, depending on the nature of the harassment. If the same individual is convicted on the same offence for a second time or even subsequent to that, the punishment would be doubled every time.
 
Similarly, if anyone deliberately files a false complaint of sexual harassment, s/he will face a fine of up to Rs 10,000. Likewise, if the office management does not fulfill their responsibilities mentioned in this Act, they will face a fine of up to Rs 25,000.
 
Sapana Pradhan Malla
Sapana Pradhan Malla
Former CA member
and Chairperson
Forum for Women, Law
and Development (FWLD)
‘‘Even women secretaries have faced sexual harassment’’
 
What is the prevalence of sexual harassment at the workplace in Nepal?
Various studies show that the prevalence of sexual harassment at the workplace is quite high. These studies show that more than 50 per cent of working women face sexual harassment at the workplace. During one such studies carried out by FWLD in association with the International Labour Organisation (ILO), even government secretaries (female) said that they had faced sexual harassment during their service. That speaks volumes about the prevalence of this offence in Nepal.
 
What are the areas where this kind of harassment is more prevalent?
Working women from various sectors face sexual harassment at their workplaces. However, it is more common in the garment sector, hotel industry and entertainment sector. We have found that in casinos, female workers are harassed by not only their colleagues but also the guests. Similarly, nurses In hospitals are harassed by patients; airhostesses are harassed by passengers. We should assume that sexual harassment at the workplace can take place in any sector. 
 
The government has introduced a new law to control sexual harassment at the workplace. How do you view this development?
In the past, there was no clear law against cases of sexual harassment at the workplace. In the past, there were laws such as the Civil Service Act, Muluki Ain etc that had provisions against sexual harassment. But now, there is a clear and specific law, which has come following a Supreme Court directive to the government to specifically address sexual harassment at the workplace. This means now the law of the land recognizes sexual harassment at the workplace as a crime. This is a positive development. We welcome this.
 
Will this law be enough to control sexual harassment at the workplace?
Many private sector organizations in Nepal had categorized sexual harassment at the workplace as misconduct even before this law was introduced. For example, hotels like Hyatt and Annapurna had formulated internal regulations to control sexual harassment at the workplace. There are other organisations too, which had taken similar initiatives. But I don’t remember their names right now.  Now a law to fight sexual harassment at the workplace has come. This has made the managers more accountable to fight sexual harassment at the workplace. The law has provisioned punishment for the guilty and managers who don’t fulfill their responsibilities to control sexual harassment as mentioned in the law. I believe that this will instill some degree of fear in the minds of the perpetrators. However, law alone is not enough. People need to be aware. Offices need to train their employees and inform them about the consequences of sexual harassment so that it can be prevented.

 

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