The Sexual Harassment of Women at Workplace Act, 2013, is in no way unclear about the attributes based on which, people are to be chosen for the Internal Complaints Committee. The Act does lay down a few guidelines, based on which, employers are to build the ICC in their workplace:

But building an ICC is not as easy as simply following the letter of the law. From misconceptions regarding what is required by the law, to being unable to find the appropriate person, constituting an ICC is seldom an easy task for employers at their organisations.

An ICC is required, by law, to be made up of at least four members. However, the members of the ICC need not be restricted to four, as there are certain benefits to an organisation which maintains an ICC with more than four members. First, the minimum requirement of four, if strictly adhered to, would prove to be a potential hindrance in cases that are not very cut and dry. This means that in the case of a clash, due to an even number of members in the ICC, there is no deciding vote. A large number of cases would simply go into a deadlock. This can be avoided by organisations, if they take the initiative to do more than just what the law requires them to do, and build an ICC with an odd number of members. Further, considering the possibility of members leaving the ICC due to conflicts, having additional members would save the organisation precious time and resources as their presence would mean that the ICC could still hear cases, and not fall below the minimum legal requirement.

The Act lays down that the Presiding Officer must necessarily be a woman employed at the senior level in an organisation. The first problem arises due to the fact that there is no universally accepted metric, based on which employees can be classified as senior employees and external employees. This would result in confusion as to whether the woman chosen is qualified enough to be termed as a senior level employee. The second issue is when the organisation does not have a woman employed at a senior level. However, in such cases, the person could be nominated from other administrative units or offices of the workspace.

This is seen in the fact that in 2016, only 16% of senior leadership roles were held by women[1]. The percentage of women who hold positions on the boards of companies is also extremely low. In 2015, only 11.2% of the board seats in India were held by women[2]. These figures highlight two major problems that most organisations would face in building their ICCs in the organisation. Firstly, the lack of women employees in senior positions in workplaces results in most employers struggling to find appropriate persons to fill the post of the Presiding Officer.

There is a visible absence of women occupying senior positions in the Indian workspaces. This has a direct bearing on the manner in which the act is implemented. The most obvious disadvantage pertains to this very issue of selecting the Presiding Officer. The problem, stated simply is “An ICC cannot have a Presiding Officer who is a senior level woman employee if the senior level employees are all men”.

Apart from the Presiding Officer and the External member, each ICC also needs to have at least two members from within the organisation who are experienced in social work or have legal knowledge. While the requirements are not highly restrictive, and leave the employers to make choices in a relatively free manner, the vague guidelines have the potential to do more harm than good. The issue of sexual harassment is one that is highly specific and has come to the fore in our country fairly recently.

Unfortunately, a majority of organisations pick individuals who are involved in social work or have legal knowledge, without ensuring that their work or knowledge is relevant to the task they are required to perform. Thus, the criterion of social work is interpreted so broadly by the employers that the persons chosen may adhere to the requirement, but would have an extremely limited knowledge of the issue of sexual harassment.

The second problem is regarding the criterion of legal knowledge. This is generally assumed to be a lawyer or any other person in the legal department. However, there is an extreme paucity of qualified individuals who are experts in the legal field of sexual harassment at the workplace. Yet another possibility is of organisations concentrating on appointing a woman as their Presiding Officer as well as their external member. This leads to them trivialising the appointment of the remaining members, and they are usually not sufficiently qualified to be part of the ICC.

Further, the number of women in the labour force is extremely low and according to the figures released by the World Bank, women participation in the labour force as of 2014 was only 26.7%[3]. This indicates the evident shortage of women employees in organisations. This results in women being appointed to the ICCs, not for their skill set and knowledge, but simply because they are the only women working in the organisation.

While the law does lay down that at least half of the seats in the ICC are to be filled by women, there is no stipulation that the organisations cannot exceed this, and, in some cases, even create an ICC which is completely made up of women. The law being ambiguous, at least in certain aspects, is leading to greater gender neutrality, as organisations are left to make the decision on their own, based on the merits of their claim. The law is thus presented in a gender-neutral manner, and having men be a part of the ICC would prevent the law from being viewed as completely woman oriented.

Currently, there is an undeniable gender gap in the Indian workforce. Diverse workplaces are extremely rare, which is unfortunate, as they are essential to the promotion of a healthy work culture. Sadly, this disparity escalates as one goes higher up the levels of the organisation. While the manufacturing industry would not face many problems in finding a Presiding Officer in their offices where a majority of the employees work desk jobs, there are certainly very few women employed in the units or offices which involve manufacturing and physical labour exclusively. This results in the creation of a proper ICC being rendered close to impossible.

The problem is not exclusive to the case of the manufacturing industry. Start-ups, which have gained a tremendous push in the past few years also face problems of gender diversity in their industry. While a fair proportion of the founders of start-ups are women, thus reducing the disparity at the executive level, there are far fewer women who actively work at the senior level in start-ups. The founders, who cannot be considered as employees, often remain the only women in the organisation. Given that the number of employees rarely exceed twenty, the Start-up industry faces its own set of issues with the formation of ICCs.

Moving from the problem of insufficient people to form ICCs, to issues where ICCs are unnecessary, but still created, which is simply a waste of the resources of the organisation. While the law states that it is mandatory for an ICC to be constituted in every administrative unit or office of a workplace. This would mean that one ICC does not suffice for an organisation which has multiple branches, or multiple levels in its structure. In cases such as those where there are multiple locations where the operations take place, but not at an office of the enterprise, there is no need for there to be an ICC constituted. In the case of travel and journalism, where a large number of employees are present at a different location, there is no necessity for an ICC to be created as there is no liability on the part of the employer in such cases to constitute one.

Aside from the differences that exist in different industries, the conditions also differ depending on the sectors. While it is easy, in the case of the organised sector, to identify a fixed structure in the organisation, the same does not, however, hold good for the unorganised sector. The biggest problem in these cases is that there is no fixed hierarchy, as there is no certainty regarding who exactly works for whom.

Clearly, building the ICC in a workplace goes beyond simply following the rules laid down in the Sexual Harassment of Women at Workplace Act. The problems exist on multiple levels, which cannot be solved in a jiffy. What is required is a thorough understanding of the people that are needed for the constitution of the ICC. Companies ought to go beyond the words written in the law and look for the kind of people that it intends to describe. The ambiguity with regard to the minimum number of women also gives organisations some room to make decisions to include men in the ICC which will is created, would go a long way in ensuring that the law is seen in a gender-neutral light. However, this aspect is often ignored by most organisations.

As is seen by the numbers, the biggest problem in the Indian workforce currently is that there very few jobs that are filled by women. Contrary to what one may have believed, the rate of woman participation in the Indian workforce has actually fallen, compared to 1990[4]. Further, only 16% of the senior level jobs in organisations are filled up by women[5]. The absence of women in senior positions of companies has a direct effect on the implementation of the Sexual Harassment of Women at Workplace Act, 2013 with regards to the qualifications of the Presiding Officer. The issue of gender disparity also goes further as it results in the few women who are employed in an organisation, being picked for the ICC.

Companies can, thus face a tough time in building their ICCs. The issue of gender disparity is one glaring hindrance, but it is not the only one. As has been seen, the provisions of the Act are not always understood, and certain misconceptions may arise in workplaces, which leaves employers in a fix. However, once these problems are understood and their root cause is identified, the process of constituting an ICC would not only be easier, but once created, it would be able to function better.

 [1] Credit Suisse, The CS Gender 3000: The Reward for Change (September 2016).

[2] Grant Thornton, Women in Business: Turning Promise into Practice (2016).

[3] The World Bank, Labour Force Participation Rate, Female (% of Female Population Ages 15+) (Modelled ILO Estimate 2016).

 [4] The World Bank, Labour Force Participation Rate, Female (% of Female Population Ages 15+) (Modelled ILO Estimate 2016).

 [5] Credit Suisse, The CS Gender 3000: The Reward for Change (September 2016).