Sexual Harassment At The Workplace

`By Aarti Goyal, UILS Chandigarh

Editor’s Note: Sexual harassment and other forms of sexual violence in public spaces are an everyday occurrence for women and girls around the world—in urban and rural areas, in developed and developing countries.

Before 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage women’s modesty, and Section 509 that punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman. These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer. The entire scenario changed in 1997 with the introduction of Vishaka guidelines.

The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in voluntary or honorary capacity. Expressly prohibiting sexual harassment at work place these legally binding guidelines put a lot of emphasis on appropriate preventive and curative measures.

On 23rd April 2013, the legislature finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at workplace by enacting “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013″. The Act has in fact sought to widen the scope of the guidelines issued by the Supreme Court.

Sexual harassment is a serious problem and the new act marks an important step in recognising a concern that affects most women.

“To call woman the weaker sex is a libel; it is man’s injustice to woman. If by strength is meant brute strength, then, indeed, woman is less brute than man. If by strength is meant moral power, then woman is immeasurably man’s superior: Has she not greater intuition, is she not more self-sacrificing, has she not greater powers of endurance, has she not greater courage? Without her man could not be. If non-violence is the law of our being, the future is with woman. Who can make a more effective appeal to the heart than woman?”

Mahatma Gandhi

For centuries from now, women were never treated equally to men in many ways. They were not allowed to own their property and did not have a share in the property of their parents as well and even did not have any voting rights, they had no freedom to choose their work or job and so on. Now that we have come out of those dark days of oppression of women there is a need for strong movement to fight for the rights of women and to ensure that they get all the rights which men have or in other words a movement for the Empowerment of Women. Many of the barriers to women’s empowerment and equity lie ingrained in cultural norms. Gender-related barriers involve sexual harassment; unfair hiring practices, career progression, and unequal pay where women are paid less than men are for performing the same job. Such barriers make it difficult for women to carve out space for themselves.

Sexual harassment and other forms of sexual violence in public spaces are an everyday occurrence for women and girls around the world—in urban and rural areas, in developed and developing countries. Women and girls experience and face various types of sexual violence in public spaces, from sexual harassment to sexual assault including rape and feticide. It happens on streets, public transport, and parks, in and around schools and workplaces, in public sanitation facilities and water and food distribution sites, or in their own neighborhoods. This reality reduces women’s and girls’ freedom of movement. It reduces their ability to participate in school, work and in public life. It limits their access to essential services and enjoyment of cultural and recreational opportunities. It also negatively impacts their health and well-being.

Although violence in the private domain is now widely recognized as a human rights violation, violence against women and girls, especially sexual harassment in public spaces, remains a largely neglected issue, with few laws or policies in place to prevent and address it.

INTRODUCTION

Sexual harassment in the workplace is a seriously irritating factor that renders women’s involvement in work unsafe and affects the right to work with dignity. It is unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment. Generally, sexual harassment is sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favors. However, it may also assume blatant and ugly forms like leering, physical grabbing, and sexual assault or sexual molestation.

To fit in the concept of sexual harassment the relevant conduct must be unwelcome.  That is unwelcome to the recipient of that conduct. Conduct is not sexual harassment if it is welcome. So in order to determine if the conduct was welcome or unwelcome, courts would naturally look to the complainant’s reaction at the time of the incident occurred and assess whether the complainant expressly, or by his or her behavior demonstrated that the conduct was unwelcome. If the evidence shows that the complainant welcomed the conduct the complaint of sexual harassment would fail. For this reason, it is important to communicate (either verbally, in writing, or by your own actions) to the harasser that the conduct makes you uncomfortable and that you want it to stop.

However, before 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the criminal assault of women to outrage women’s modesty, and Section 509 that punishes an individual or individuals for using a word, gesture or act intended to insult the modesty of a woman. These sections left the interpretation of ‘outraging women’s modesty’ to the discretion of the police officer. The entire scenario changed in 1997 with the introduction of Vishaka guidelines.

Supreme Court guidelines on sexual harassment

The Supreme Court in Vishaka vs State of Rajasthan for the first time recognized, acknowledged and explicitly defined sexual harassment as an – unwelcome sexual gesture or behavior aimed or having a tendency to outrage the modesty of woman directly or indirectly.

Defining sexual harassment as an act aimed towards gender based discrimination that affects women’s right to life and livelihood, the Supreme Court developed broad based guidelines for employers. This mandatory guidelines known as Vishaka guidelines are aimed towards resolution and prevention of sexual harassment. These guidelines bring in its purview all employers in organized and unorganized sectors by holding them responsible for providing a safe work environment for women.

The Vishaka guidelines apply to all women whether students, working part time or full time, on contract or in a voluntary or honorary capacity. Expressly prohibiting sexual harassment at work place these legally binding guidelines put a lot of emphasis on appropriate preventive and curative measures. (The guidelines include the following as acts of sexual harassment: Physical contact and advances, Showing pornography, a demand or request for sexual favours, any other unwelcome physical, verbal/non-verbal – such as whistling, obscene jokes, comments about physical appearances, threats, innuendos, gender-based derogatory remarks, etc.)

Some of the important guidelines are:

  • The onus to provide a harassment free work environment has been laid down on the employers who  are required to take the following steps:
  • Employers must form a Complaints Committee.
  • Express prohibition of sexual harassment in any form and make the employees aware of the implications through in house communication system / posters / meetings.
  • Must include prohibition of sexual harassment with appropriate penalties against the offender in Conduct rules.
  • Prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 to be included by private employers.
  • Provision of appropriate work conditions in respect of- work, leisure, health, hygiene to further ensure that there is no hostile environment towards women.
  • No woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
  • Victims of sexual harassment to be given an option to seek transfer of the perpetrator or their own transfer.

Thus the Vishaka guidelines stipulated that all organisations would form a complaints committee to look into any such allegation. It would be headed by a woman employee and not less than half of its members would be women. All complaints of sexual harassment by any woman employee would be directed to this committee. The committee would advise the victim on further course of action and recommend to the management the course of action against the person accused of harassment.

However in Medha Kotwal Lele vs. Union of India  coordinator of Aalochana, a centre for documentation and research on women and other women’s rights groups, together with others, petitioned the Court highlighting a number of individual cases of sexual harassment and arguing that the Vishaka Guidelines were not being effectively implemented. In particular, the petitioners argued that, despite the guidelines, women continued to be harassed in the workplace because the Vishaka Guidelines were being breached in both substance and spirit by state functionaries who harass women workers via legal and extra legal means, making them suffer and by insulting their dignity.

The Court stated that the Vishaka Guidelines had to be implemented in form, substance and spirit in order to help bring gender parity by ensuring women can work with dignity, decency and due respect. It noted that the Vishaka Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. The Court held that a number of states were falling short in this regard. It referred back to its earlier findings on 17 January 2006, that the Vishaka Guidelines had not been properly implemented by various States and Departments in India and referred to the direction it provided on that occasion to help to achieve better coordination and implementation. The Court went on to note that some states appeared not to have implemented earlier Court decisions which had required them to make their legislation compliant with the Vishaka Guidelines.[i]

The adoption of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2012

The strength of the Bill rests in the preamble, which categorically states that sexual harassment is a violation of women’s fundamental rights to equality and life. It further provides that women have the right to a safe environment in the workplace, free from sexual harassment — a commitment that is consistent with India’s obligations under the Convention of All Forms of Discrimination Against Women. This powerful endorsement of sexual harassment as a violation of women’s rights gets lost in the technicalities and poorly conceptualised provisions of the bill.

The legal definition of sexual harassment has unwelcome sexually determined behaviour (whether directly or by implication) as: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Somewhat awkwardly, a separate clause deals with quid pro quo harassment — sexual conduct in which a threat is made or a benefit offered in order to obtain sex. It includes conduct that interferes with a woman’s work or creates an intimidating, offensive or hostile work environment for her; or constitutes health and safety problems for her.

There are two ingredients to sexual harassment: firstly, the conduct must be unwelcome; secondly, it must disadvantage the complainant, for example by affecting her recruitment or promotion or creating a hostile work environment.

Sojourn to a comprehensive piece of legislation

On 23rd April 2013, the legislature finally brought into force a comprehensive legislation dealing with the protection of women against sexual harassment at the workplace by enacting “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013″. The Act has in fact sought to widen the scope of the guidelines issued by the Supreme Court by bringing within its ambit (amongst other things) a “domestic worker” (Sec 2e)  defined to mean a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or full time basis, but does not include any member of the family of the employer.[ii]

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the sexual harassment law), in its avowed and overarching desire to protect women, entrusts the establishment and its management with the duty to redress the grievance. Contrary to common perception, the law is not all about harassment of a woman employee by a Lothario-type male employee, senior or junior. On the contrary, it makes the establishment responsible for redressal of sexual harassment-related grievances of any woman so long as the alleged incident has taken place in the establishment.

All sorts of permutations and combinations can be visualised — the harassed female and male aggressor are both employees of the same organisation, the harassed individual is an employee but not the aggressor, the harassed female is a visitor with whom a male employee of the establishment takes sexual liberties and makes passes at or indulges in sexually overt or covert gestures, or both the harassed and the harasser are rank outsiders, with whom the establishment is not related as an employer.

QUESTIONABLE PROVISION-

The sexual harassment law, however, makes it clear that all four situations fall within the purview of the employers’ responsibility — in preventing, prohibiting and redressing cases of sexual harassment. The law should be welcomed to the extent that it makes the establishment responsible in the first three scenarios. But the sexual harassment law does not permit settlement on condition of payment of monetary compensation, however, it allows settlement involving an adverse entry in the employee’s record book as well as deduction from his dues.

The law gives the harassed woman the right to file a complaint before the magistrate as an alternative to filing a complaint with the internal or local committee where the latter does not exist.[iii]

 Present Scenario

It has been more than seven months since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 received its assent from the President of India. But unfortunately, there has been a failure on the part of the WCD ministry to notify the legislation. Moreover, the rules specified under the legislation have not come into effect. As a result, there is a lot of confusion especially among state governments, on whether the law can be implemented without the central government notifying the rules. However, looking at the rising number of reported complaints of sexual harassment it is evident that the new law has at least served to improve awareness about the obligations of employers and rights of employees in case of workplace sexual harassment. The resentment towards incidents of sexual harassment is also increasing. Perhaps this legislation will help the silenced voice of women audible by taking off the feet that coerce women’s necks.

Sexual harassment cases usually have a marked power imbalance between the victim and the accused; this may well affect the negotiation scenario, with the victim being unable to hold her own.

In recent times, the issue of sexual harassment of women at the workplace has assumed prominence with serious allegations being made against a former Supreme Court Judge whose court pronounced verdict on huge scams, and the editor of a magazine with truth and exposure as its masthead. In the case of the former, a court-appointed committee found that the complainant’s statement prima facie disclosed an act of unwelcome behaviour of sexual nature, but matters went no further as the judge was found to have demitted office prior to the commission of the alleged offence. The second case has followed the traditional process of criminal law, beginning with investigation and arrest.[iv]

The most challenging adversary to changing women’s experiences of sexual harassment in the workplace is not the actual offender, it’s the non-compliant institution. In its failure to educate its own, to inform and stake itself on building a culture intolerant of sexual harassment, such an institution plays the same role as the passive bystander, who fosters hostile sexual environments by simply doing nothing. Two persevering and articulate women, with everything to lose, and little to gain, remind us of one thing — doing nothing, which perpetuates a sexist status quo, need no longer be our systemic truth. It need not be the way things are. That both incidents came to light at all is due solely to the remarkable clarity and confident expression with which each documented her experience of workplace sexual harassment by men in positions of power.[v]

Report of a survey carried by CII

CII (Confederation of Indian Industry) had carried out a survey on the topic ‘sexual harassment at workplace’ that covered 4,000 employees from four IT companies. Lack of awareness of laws and anxiety of getting a bad name were found to be the most common reasons why women avoided complaining about sexual harassment at the workplace. A pilot survey in IT companies to assess the perception of their employees on women’s safety. The survey covered four IT companies, and was carried out following frequent cases of sexual violence against women. The survey included responses of over 4,000 employees. Based on the findings of the survey, CII organised a workshop for the corporate houses, human resources and individuals to create awareness against sexual harassment at workplace, its laws.

Employees from six different work sectors, including manufacturing, services (IT, Financial Services, Banking, Insurance etc), health care, hospitality, research establishments and education institutions participated in the workshop.
Apart from a lack of awareness about the laws against sexual harassment at workplace, the other problems that the working women face is of fear of earning bad name if they register a complaint. Some of the women also stated that they fear that they will be sacked or they will not have a good appraisal if they raise voice against sexual harassment by a senior. The women also demanded strict action against the accused and compensation to the victims for the mental trauma. There should be a mandate that women employees should be provided with conveyance facility when going to remote places or even working late at night.[vi]

SAFETY OF WOMEN

Over the past three decades, the workplace has become a much more diverse environment. With women representing 24.4% of the total workforce in India, personal security has become central to their physical, intellectual, emotional, economic and spiritual well-being.

To quote Michelle Bachelet, first woman Special Envoy to the UN Secretary General, “Gender equality must become a lived reality” and how better to do it than ensure that women are safe at the workplace, by creating an atmosphere conducive to increased participation of women, positively encouraging and supporting them’.

Recommendations are as follows:-

  • To have a registering complaint and redressal mechanism
  • Gender sensitization and awareness
  • Confidentiality of complainants and witnesses
  • Aid to complainants through women’s cells, forums
  • Separate nodal body to address issues which are not addressed by the company’s committee

Some important precautions to be taken up are as follows:-

Last pick up and first drop with a drop closer to home for women, Vendor validation with instructions to vendors regarding the type of vehicles and drivers, GPRS Tracking on vehicles used to drop employees, Male colleague should accompany female employees when going to secluded place, Assignments should not affect the employee’s appraisal etc.

CONCLUSION

Sexual harassment is a serious problem and the new act marks an important step in recognising a concern that affects most women. But there is a need for courts as well as rights advocates to ensure that women’s rights to equality in the workplace are not secured through the regulation of sexual conduct, muzzling of sexual speech, or moral surveillance of women’s lives. Such strategies have historically only perpetuated sexual stereotypes, sexual orthodoxy, and compromised on women’s fundamental rights. Workplace policies and codes must be drafted in a way that specifically recognises and respects an individual’s right to sexual autonomy and bodily integrity. Sexual harassment must be effectively addressed in support of and not at the cost of women’s fundamental rights as clearly set out in the preamble.

Formatted on 3rd March 2019

Footnotes

[i] Retrieved from: http://www.unwomen.org/en/what-we-do/ending-violence-against-women/creating-safe-public-spaces#sthash.VzRS0b93.dpuf on 1st February 2014 at 3:p.m

[ii] Supra  1

[iii] Retrieved from : http://www.thehindubusinessline.com/opinion/columns/s-murlidharan/grey-areas-in-harassment-law/article5386762.ece on 1st February 2914 at 5:00.pm

[iv] Retrieved from  http://www.thehindu.com/opinion/op-ed/protecting-women-at-workplaces/article5483861.ece

[v] Retrieved from  http://www.sacw.net/article6993.html

[vi]Retrieved from  http://www.dnaindia.com/pune/report-lack-of-awareness-main-problem-of-sexual-harassment-victims-1891656

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