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Preventing SH at Workplace

Dr.SHASHI BALA

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THE SEXUAL HARASSMENT OF WOMEN IN THE
WORKPLACE (PREVENTION, PROHIBITION AND
REDRESSAL) ACT, 2013

Received assent of the President on the


22nd of April 2013 and was published in the
Official Gazette on 23rd April 2013. Rules
brought into force on 9th December, 2013

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 The International Labor Organization
“The Right to Safe & Healthy Work Environment free from Sexual Harassment as one of the
basic rights for all women”

India is a founder member of ILO

 CEDAW
“Equality in employment can be seriously impaired when women are subjected to gender
specific violence, such as sexual harassment in the work place”

 Supreme Court of India


“The fundamental right to carry on any occupation, trade or profession depends on the
availability of a “safe” working environment. The logical consequences of such an incident is
also the violation of the victim's fundamental right under Article 19(1)(g) “to practice any
profession or to carry out any occupation, trade or business”.”

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Evolution of the Law on PREVENTING
Workplace Sexual Harassment
The Prevention of Workplace Sexual Harassment Act and the
Prevention of Workplace Sexual Harassment Rules have been
enacted 16 years after the Supreme Court of India’s landmark
judgement in Vishaka and others v. State of Rajasthan
(“Vishaka Judgement”). The Supreme Court, in the Vishaka
Judgment, laid down guidelines, making it mandatory for every
employer to provide a mechanism to redress grievances
pertaining to workplace sexual harassment and enforce the
right to gender equality of working women (“Guidelines”).
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DR. SHASHI BALA
SUPREME COURT DIRECTIONS
VISHAKA v STATE OF RAJASTHAN

The Supreme Court Directions define sexual harassment and

• Make it obligatory upon an employer or other responsible persons in workplaces or


other institutions to prevent or deter the commission of acts of sexual harassment;

• Make it obligatory upon an employer to provide procedures for the resolution,


settlement or prosecution of acts of sexual harassment by taking all steps required;

• Specify duties of an employer with regard to


- preventive steps;
- criminal proceedings;
- third party sexual harassment;
- disciplinary action;
- complaint mechanisms and complaint committees;
- awareness amongst employees;
- encouraging workers initiatives.

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THE SHW ACT 2013 - Definitions

 Aggrieved woman – in relation to a workplace a woman of any age whether


employed or not; in relation to a dwelling house, a woman who is employed
there AND who alleges to have been subjected to any act of sexual harassment
by the Respondent

 Respondent – a person against whom the aggrieved woman has made a


complaint

 Employer means “head” or any person responsible for management, supervision


and control of the workplace.
 All forms of employment – regular, temporary, ad hoc, daily wage, directly or indirectly, whether
for remuneration or not are covered.

 Workplace – very wide inclusive definition that also includes any place visited by
the employee arising out of or during the course of employment including
transportation provided by the employer for undertaking such journey.
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THE SHW ACT 2013 - Definitions

 Sexual harassment includes any one or more of the following unwelcome acts or
behavior (whether directly or by implication) namely:-
 Physical contact and advances or
 A demand or request for sexual favours or
 Making sexually coloured remarks or
 Showing pornography or
 Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.

 The following circumstances also recognized as SH


 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, or offensive or hostile work environment
for her
 Humiliating treatment likely to affect her health or safety

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Dr. Devika Singh 8
LEGISLATIVE TIMELINE

2007 Draft Protection of Women against Sexual Harassment at


Workplace Bill, 2007 (“Bill”) approved by the Union Cabinet.

2010 The Bill was introduced in the Lok Sabha

2012 The Bill was amended and re-introduced in the Lok Sabha.

September 03, 2012 The Sexual Harassment of Women at Workplace (Prevention,


Prohibition and Redressal) Bill, 2012 was passed by the Lok
Sabha
February 26, 2013 The Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Bill, 2012 was passed by the Rajya
Sabha.
April 23, 2013 The Prevention of Workplace Sexual Harassment Act received
the President’s assent and was published in the Gazette of India
as Act No. 14 of 2013.

December 09, 2013 The Indian Ministry of Women and Child Development
notified:

1. December 09, 2013 as the effective date of the Prevention


of Workplace Sexual Harassment Act; and
2. The Prevention of Workplace Sexual Harassment Rules

Source: India’s Law on Prevention of Sexual Harassment at the Workplace,2015


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DR. SHASHI BALA
Respondent - A
Aggrieved Women person against
whom a complaint
has been made

Working Visiting a Workplace Student

Regular/ For remuneration/ contract worker/


Employed directly/
Temporary/ Ad voluntary basis/ probationer/ trainee/ Domestic Worker
through an agent
Hoc/ Daily Wager otherwise apprentice/ called by
any other such name

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WORKPLACE
• Any department, organisation, undertaking,
establishment, enterprise, venture, funded by
Government, corporation or co-operative society
• Any private sector organisation, venture, undertaking,
trust, society, non-governmental organisation carrying
on commercial, professional, vocational, educational,
entertainmental, industrial, health services or
financial activities

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Contd…
• Hospitals or nursing homes

• Any sports institute, stadium, complex or game venue


whether used for sports or not

• Any place visited by the employee during the course


of employment including transportation provided for
the journey

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Contd…
• A dwelling place or house
• Workplace of unorganized sector: An enterprise
owned by individuals or self-employed workers:
 engaged in the production/sale of goods
 providing service of any kind whatsoever

• Where the enterprise employs workers and the


number of such workers is less than 10.

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REDRESSAL MECHANISM
• INTERNAL COMPLAINT COMMITTEE AT
ALL ADMINSTRATIVE UNITS OR OFFICES
• LOCAL COMPLAINT COMMITTEE
• DISTRICT OFFICER (DM, ADM, Collector,
Deputy Collector)
• Nodal Officer

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Composition of Complaints Committee/s
Internal Complaints Committee (ICC)
Every employer is obliged to constitute an ICC through a written order. The ICC will be composed of the
following members:

S.No Member Member Eligibility

1 Chairperson Women working at senior level as employee; if not available then nominated from
other office/units/ department/ workplace of the same employer

2. 2 Members From amongst employees committed to the cause of women/


(minimum) having legal knowledge/experience in social work

3. Member From amongst NGO/associations committed to the cause of women or a person


familiar with the issue of Sexual Harassment

Where the office or administrative units of a workplace are located in different places,
division or sub-division, an ICC has to be set up at every administrative unit and office.
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DR. SHASHI BALA
Local Complaints Committee (LCC)
The District Officer will constitute an LCC in every district so as to enable women in the unorganized
sector or small establishments to work in an environment free of sexual harassment. The LCC will
receive complaints:

• From women working in an organisation having less than 10 workers;


• When the complaint is against the employer himself;
• From domestic workers.

S.No Member Member Eligibility

1. Chairperson Nominated from amongst the eminent women in the field of social work and
committed to the cause of women
2. Member Nominated from amongst the women working in the block, taluka or tehsil or ward or
municipality in the district
3 2 Members Nominated from amongst such NGO/associations/persons committed to the cause of
women or familiar with the issues relating to sexual harassment, provided that:
• At least one must be a woman
• At least one must have a background of law or legal
knowledge

4. Ex Officio member The concerned officer dealing with social welfare or women and child development
in the district
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DR. SHASHI BALA
PROCESS

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COMPLAINANT

INTERNAL
COMMITTEE

Unable to make
AGGRIEVED complaint (Where Dead
WOMAN or physically or mentally
LEGAL incapacitated)
HEIR

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INQUIRY PROCEDURE

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Conciliation
• To be initiated by ICC/LCC only at the request of
aggrieved woman before the commencement of
inquiry
• Monetary settlement shall not be made as basis of
conciliation
• If the condition of settlement are not fulfilled, the
inquiry will be initiated by the ICC/LCC
• Settlement will be in writing, copies to be provided to
parties, employer, District Officer

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Interim Relief
• Transfer the aggrieved woman or respondent
to any other place
• Grant leave to the aggrieved woman for upto
3 months in addition to her entitled leave
• Restrain the respondent from reporting on
the work performance/ writing confidential
report of aggrieved
• Restrain the respondent from supervising
academic activities of aggrieved

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Punishment
• As prescribed under the Service Rules
• In case service rules do not exist
 Disciplinary action including written apology, reprimand,
warning, censure
 withholding of promotion/ pay raise/ increment
 Termination of employment
 Undergoing counselling
 Community service

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Contd….
• Deduction from salary
 Mental Trauma, pain, suffering and emotional distress
caused
 Medical expenses incurred
 The loss of career opportunity
 The income and financial status of respondent
• If the amount is not paid it can be recovered as arrear
of land revenue

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False/ Malicious Complaint
• Offence:
– Making false complaint with malicious intent
– Producing forged/misleading documents
• An inquiry to be conducted to establish malicious
intent
• Mere inability to substantiate a complaint will not be
penalised
• Penalty similar to the penalty awarded to person
found guilty of committing the act of sexual
harassment

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TIMELINES
Submission of Complaint Within 3 months of the last incident

Notice to the Respondent Within 7 days of receiving copy of the


complaint

Completion of Inquiry Within 90 days

Submission of Report by ICC/LCC to Within 10 days of completion of the


employer/DO inquiry

Implementation of Recommendations Within 60 days

Appeal Within 90 days of the


recommendations

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Confidentiality
• Prohibits the disclosure of identity and address
of complainant, respondent and witnesses
• Information pertaining to conciliatory/ inquiry
proceedings or recommendation of ICC/LCC
• Exception: Dissemination of information
regarding the justice secured without
disclosure of name, address, identity and
particulars of complainant or witnesses

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AUTHORITIES

 Employer

 District Officer

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Employer

Employer

Workplace of
Government/ Local Private Workplace Dwelling House
Bodies

Head/ Officer Person responsible for Person who employs/


specified management/ benefits from the
supervision/ control employement

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Prevention: Duties of Employer
• Provide Safe working environment
• Display at public places consequence of sexual
harassment and Internal Committee information
• Conduct awareness generation programmes
• Provide necessary facilities, assist in attendance of
respondent, take action upon recommendation passed
after inquiry
• Assist women to file criminal case in case she so
desires

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Duties
• Create and communicate a detailed policy;
• Ensure awareness and orientations on the issue;
• Constitute complaints committee/s in every
workplace and district so that every working
woman is provided with a mechanism for redress
of her complaint(s);
• Ensure complaints committees are trained in both
skill and capacity;
• Prepare an annual report and report to the
respective state government;

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Duties of District Officer
• Monitor timely submission of reports by LCC
• Engage NGOs for awareness exercise
• Forward a brief on annual reports submitted to
State Government
• Furnish such information in writing as
requested by Appropriate Government

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Reporting by ICC/LCC
• ICC/LCC will submit annual report to employer/ District
Officer detailing:
– No. of complaints received
– No. of complaints disposed off
– No. of cases pending for more than 90 days
– No. of workshops/awareness programmes carried out
– Nature of action taken by employer/DO
• The Report of ICC will be forwarded to DO through
employer

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Offences
• Non constitution of ICC
• Contravenes or attempts to contravene or abets
contravention of other provision of this Act or
Rules
• Penalty: Fine up to Rs. 50,000/-

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Recap: Sexual Harassment of Women at Workplace
(Prevention Prohibition and Redressal) Act, 2013
Procedure to be followed
Timelines

Incident of Sexual Harassment at A written complaint has to


Workplace be filed by the female
employee within 3 months
Conciliation of the date of incident.

Internal Complaint Committee/ Local


Complaint Committee The inquiry has to be
completed within 90 days.

Report of Inquiry The inquiry report has to be


issued within 10 days from
the date of completion of
inquiry.

Action for Misconduct No action by Employer Punishment for false or Employer is required to act
malicious complaint/ on the recommendations of
false evidence the committee within 60
days of receipt of inquiry
report.

Appeal to a court Tribunal Appeal against the decision


of the committee is allowed
Source: Nishith Desai Associates,2013 within 90 days of the date
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DR. SHASHI BALA
For Repeat Offenders

Twice the punishment Cancellation/


Approval/Cancellation
or higher than that if withdrawal/ non-
of registration
prescribed under the renewal of license
law

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COGNIZANCE
• Only at the complaint of aggrieved woman or
any person authorised by ICC/LCC
• Trial by Metropolitan Magistrate or Judicial
Magistrate of First Class
• Offences are non-cognizable
• Act in addition to other law for the time being
in force

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Sexual Harassment
• Civil Remedy
– As specified under Sexual Harassment of Women
At Workplace (Prevention, Prohibition and
Redressal) Act, 2013
• Criminal Remedy
– As specified in Indian Penal Code, 1860

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Criminal Remedy
• Sec 354A - Sexual Harassment (1-3 years)
• Sec 354B – disrobing a woman in public or
compelling her to be naked (3-7 years)
• Sec 354C – Voyeurism (1-3 years and on
subsequent offence 3-7 years)
• Stalking (3 years and later not less than 5
years)

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Other Laws Pertaining to Workplace Sexual Harassment
Industrial Employment (Standing Orders) Act, 1946

The Industrial Employment (Standing Orders) Act, 1946 (“Standing Orders Act”) is a
central enactment which, inter alia, requires an employer to define and publish uniform
conditions of employment in the form of standing orders. As per the statute, the standing
orders should contain terms of employment including, hours of work, wage rates, shift
working, attendance and late coming, provision for leaves and holidays and termination
or suspension/dismissal of employees.

Indian Penal Code, 1860

Conduct that may be construed as sexual harassment not only violates the Prevention of
Workplace Sexual Harassment Act, but also could constitute an offence under the IPC.
Listed out below are the key offenses under the IPC that could be triggered in a case of
sexual harassment.
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DR. SHASHI BALA
Section Offence Punishment Cognizable/Non-
Cognizable
354 Outraging the modesty of a woman Simple/ Rigorous Imprisonment for a term which Cognizable
Assault or use of criminal force to any woman, intending to outrage or shall not be less than one year but which may
knowing it to be likely that modesty would be outraged. extend to five years; and fine.

354-A SSexual harassment by a man Offences (i), (ii) and (iii) are punishable with Cognizable
(i) Physical contact and advances involving unwelcome and explicit rigorous imprisonment for a term which may
sexual overtures; extend to three years, or with fine, or with both.

(ii) Demand or request for sexual favours; Offence (iv) is punishable with simple/ rigorous
imprisonment for a term which may extend to one
(iii) Showing pornography against the will of a woman; or year, or with fine, or with both.
(iv) making sexually coloured remarks.
354-B Assault or use of criminal force to woman with intent to disrobe Simple/Rigorous imprisonment for a term which Cognizable
Assault or use of criminal force to any woman or abetment of such act shall not be less than three years but which may
with the intention of disrobing or compelling her to be naked. extend to seven years, and fine.

354-C Voyeurism First conviction: Simple/ Rigorous imprisonment Cognizable


Watching, or capturing the image of a woman engaging in a private act in for a term which shall not be less than one year, but
circumstances where she would usually have the expectation of not being which may extend to three years, and fine.
observed either by the perpetrator or by any other person at the behest of Second or subsequent conviction: Simple/ Rigorous
the perpetrator or disseminates such image. imprisonment for a term which shall not be less
than three years, but which may extend to seven
years, and fine.
354-D Stalking First conviction: Simple/ Rigorous imprisonment Cognizable
Following a woman and contacting, or attempting to contact such woman for a term which may extend to three years, and
to foster personal interaction repeatedly despite a clear indication of fine.
disinterest by such woman; or Second or subsequent conviction: Simple/ Rigorous
Monitoring the use by a woman of the internet, email or any other form of imprisonment for a term which may extend to five
electronic communication. years, and fine.
509 Insulting the modesty of a woman Simple imprisonment for a term which may extend Cognizable
Uttering any word, making any sound or gesture, or exhibiting any object, to three years, and fine.
intending that such word or sound shall be heard, or that such gesture or
object shall be seen, by a woman, with an intention to insult her modesty,
or intruding upon the privacy of such woman.

Source: India’s Law on Prevention of Sexual Harassment at the Workplace,2015


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DR. SHASHI BALA
S. No. Key Criteria US UK Australia
1. Name of the Law Title VII of the Civil Rights Act of 1964 Equality Act 2010; Protection from Sex Discrimination Act 1984 amended
Harassment Act 1997 by the Sex and Age Discrimination
Legislation Amendment Act 2011
2. Genesis and definition of In 1980, the Equal Employment Opportunity It states that harassments occurs Sex Discrimination Act 1984 defines
sexual harassment Commission produced a set of guidelines for where there is unwanted conduct on sexual harassment as”… unwanted
defining and enforcing Title VII (in 1984 it the ground of a person’s sex or conduct of a sexual nature, in
was expanded to include educational unwanted conduct of a sexual nature circumstances in which a reasonable
institutions). The EEOC defines sexual and that conduct has the purpose or person, having regard to all the
harassment as: effect of violating a person’s circumstances, would have anticipated
Unwelcome sexual advances, requests for dignity, or of creating an that the person harassed would be
sexual favors, or other verbal or physical intimidating, hostile, degrading, offended, humiliated or intimidated.”
conduct of a sexual nature when: humiliating or offensive
1. Submission to such conduct was made either environment for them. If an
explicitly or implicitly a term or condition ofemployer treats someone less
an individual’s employment. favorably because they have
2. Submission to or rejection of such conduct rejected, or submitted to, either form
by an individual was used as the basic for of harassment described above, this
employment decisions affecting suchis also harassment.
individual, or
3. Such conduct has the purpose or effect of
unreasonably interfering with an individual’s
work performance or creating an intimidating,
hostile, or offensive working environment.
3. Is the employer responsible? Yes Yes Yes

4. Liability for employers Monetary Monetary The person who sexually harasses
someone else is primarily responsible
but the company may be held
vicariously liable for sexual harassment
by the employees, agents and
contractors, unless it can show the steps
that it took to prevent it from occurring.

5. Penalties
Most countries have promulgated legislations that hold employers vicariously liable for acts of harassment by their employees, vendors, clients, sub-
contractors etc. or within their workplace.
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DR. SHASHI BALA
Brazil Singapore
Law No 10.224 Protection from Harassment Act 2014

In 200, the Brazilian Government enacted a criminal law (Law Section 4


No 10.224) defining sexual harassment as an embarrassing 1. No person shall by any means-
conduct performed by a worker in a superior hierarchical a) Use any threatening, abusive or insulting words or behavior; or
position against someone hierarchically inferior at work, in order b) Make any threatening, abusive or insulting communication.
to obtain advantages or sexual favours. The law made sexual which is heard, seen or otherwise perceived by any person (referred
harassment a crime with imprisonment from one upto two years. to for the purposes of this section as the victim) likely to be caused
This legislation has set Brazil a part from most countries where harassment, alarm or distress.
harassment is dealt with under civil law. 2. Any person who contravenes subsection (1) shall be guilty of an
offence and, subject to section 8, shall be liable on conviction to a
fine not exceeding $5000
3. In any proceedings for an offence under subsection (2), it is a
defence for the accused person to prove-
a) That he had no reason to believe that the words or behavior used,
or the communication made, seen or otherwise perceived by the
victim; or
b) That his conduct was unreasonable

Yes Yes
Unclear Monetary
In the event the harassment charges are proved against a person (who was involved in the dealing of the company), employer as
well as the employee (who committed the crime) can be criminally held liable by the criminal courts, on the basis of the
complaint filed by the victim
Source: Sources:Society for Human Resource Management http://www.shrm.org/hrdisciplines/global/articles/pages/sexual-harassment-law-global.aspx

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DR. SHASHI BALA
CASE STUDIES

• During a training, a senior officer Kiran complains that another senior


officer Mika got drunk during the end of event party and tried to hug her.
She says it doesn’t look like Mika even remembered what he was doing –
he was so sloshed.

• Ritu joins the organization and from the very beginning her mentor –Rahul
tells her to not talk to other team members and keeps ticking her off for
being over friendly. When she doesn’t listen to him, he tells her on
whatsapp that he has only been advising her for her good and that she will
only have to face the consequences of being overfriendly. A few days later,
one of Ritu’steam mates tells Ritu that Rahul has been telling others that
Ritu has had many boyfriends. She tells Ritu to be careful because another
girl had also left the organization earlier due to issues with Rahul. Ritu
complains to the ICC.

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Satyam is a team leader who believes he is a real
people’s person. He openly hugs his team members
and compliments them on their dress, hair, perfume
etc. A new joinee is very uncomfortable being treated
in this manner and tells Satyam that she doesn’t like
being hugged. He tells her he is like this only with
everyone and continues his behaviour. Sometimes he
even pulls her to him when she tries to avoid his hug
and says stop being such a prude.

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• Malavika, an employee from Department A had a problem with Ravi
an employee of Department B. Both of them temporarily are
working together on a investigation. Ravi would greet Malvika
sayingDeviji – aapaayibahaaraayi. He would also tap her on her
shoulder and say badikadak lag rahihain. Once Malavika told him
not to do this. He said its all in mazaak. Why are you getting so
worked up. Then he started calling Malavika with nicknames like
440 volt and revolver rani. Malvika is confused.

 In which of the above cases do you identify sexual harassment.


 Attempt to classify it the type of sexual harassment, if any.
 What advice would you give as an onlooker to the parties.

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Thank You!

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