THIS ARTICLE WAS WRITTEN BY YASHI SHRIVASTAVA, A STUDENT OF BANASTHALI UNIVERSITY, JAIPUR.
“When it comes to Human Dignity, we cannot make Compromises.”- Angela Merkel.
What is Sexual harassment?
Harassment (typically of a woman) in a workplace, or other professional or social situation, involving the making of unwanted sexual advances or obscene remarks.
It is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In most modern legal contexts, sexual harassment is illegal. As defined by the United States’ Equal Employment Opportunity Commission (EEOC), “It is unlawful to harass a person (an applicant or employee) because of that person’s sex.” Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
In general sense it is known as “unwelcome sexual favor and other verbal or physical conduct of a sexual nature that tends to create a hostile or offensive work environment”
The Supreme Court of India defined Sexual Harassment as any unwelcome sexually determined behavior (whether directly or by implication) such as;
- Physical contact and advances,
- A demand or request for sexual favors,
- Sexually colored remarks,
- Showing pornography,
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Sexual harassment constitutes a gross violation of women’s right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. One of these is workplace sexual harassment, which views various forms of such harassment, as harmless and trivial. Often, it is excused as ‘natural’ male behavior or ‘harmless flirtation’ which women enjoy. Contrary to these perceptions, it causes serious harm and is also a strong manifestation of sex discrimination at the workplace. Not only is it an infringement of the fundamental rights of a woman, under Article 19 (1) (g) of the Constitution of India “to practice any profession or to carry out any occupation, trade or business”; it erodes equality and puts the dignity and the physical and psychological well-being of workers at risk. This leads to poor productivity and a negative impact on lives and livelihoods. To further compound the matter, deep-rooted socio-cultural behavioral patterns, which create a gender hierarchy, tend to place responsibility on the victim, thereby increasing inequality in the workplace and in the society at large.
Sexual harassment includes many things:
- Actual or attempted rape or sexual assault:
- Unwanted deliberate touching, leaning over, cornering, or pinching.
- Unwanted sexual teasing, jokes, remarks, or questions.
- Whistling at someone.
- Kissing sounds, howling, and smacking lips.
- Touching an employee’s clothing, hair, or body
- Touching or rubbing oneself sexually around another person.
Who is a Harasser and who is Harassed:
It is commonly thought that workplace sexual harassment is limited to interactions between male bosses and female subordinates. This is not true. In fact, sexual harassment can occur between any co-workers, including the following:
- Subordinate harassment of a superior;
- Men can be sexually harassed by women;
- Same sex harassment- men can harass men; women can harass women; Offenders can be supervisors, co-workers, or non-employees such as customers, vendors, and suppliers.
Who is an aggrieved woman?
It includes all women whether engaged directly or through an agent including a contractor, with
or without the knowledge of the principal employer. They may be working for remuneration, on a voluntary basis or otherwise. Their terms of employment can be express or implied.
Further, she could be a co-worker, a contract worker, probationer, trainee, apprentice, or called by any other such name. it also includes women, who is working in a dwelling place or house.
Aggrieved Women –
- Working –
- Domestic worker
- Regular/temporary/daily wage worker/ad hoc
- Remuneration/ voluntary basis/ otherwise
- Directly through/ an agent
- Trainee/probationer/ contract worker/ apprentice/ called by any other such name.
- Visiting a workplace
What is a workplace?
A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.”
As per this definition, a workplace covers both the organised and un-organised sectors.
It also includes all workplaces whether owned by Indian or foreign company having a place of
work in India. As per the Act, workplace includes:
- Government organizations, including Government company, corporations and cooperative societies;
- Private sector organisations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment,industrial, health related or financial activities, including production, supply, sale, distribution or service;
- Hospitals/Nursing Homes;
- Sports Institutes/Facilities;
- Places visited by the employee (including while on travel) including transportation provided by employer;
- A dwelling place or house.
All employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
- Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
- The rules of government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the industrial employment (standing orders) act, 1946.
- Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Apart from these measures, the Government has enacted an Act, Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Having raised the bar of responsibility and accountability in the Vishaka Guidelines, the Supreme Court placed an obligation on workplaces, institutions and those in positions of responsibility, to uphold working women’s fundamental right to equality and dignity at the workplace. Three key obligations were imposed on institutions to meet that standard, namely:
In 2013, the Government of India notified the Sexual Harassment of Women at Workplace (Prevention,Prohibition and Redressal) Act (referred to as Act hereinafter). Consistent with the Vishaka judgment, the Act aspires to ensure women’s right to workplace equality, free from sexual harassment through compliance with the above mentioned three elements. It is important to note that the Act provides a civil remedy to women and is in addition to other laws that are currently in force. Consequently, any woman who wishes to report instances of sexual harassment at the workplace has the right to take recourse of both civil and criminal proceedings.
Causes which led to the Emergence of the Act:
The problem of sexual harassment of women is not a new development, it has been a part in every women’s life an older phenomenon of showing the dominance of men in the society. Sexual harassment is one of those problems which play a bad role by discouraging women in taking active part in economic and social development. It is a demanding and offensive experience one employee can suffer and it is gaining recognition whether it is at workplace or an institution or at home.
For the first time in the history of the Indian Courts in 1997 the Supreme Court of India recognized sexual harassment at workplace as a violation of human rights but also as a personal injury to the affected woman.
The landmark case of Vishaka and others Vs. State of Rajasthan laid down guidelines for the preventing and redressel of the complaints by women who were sexually harassed at workplace. The Guidelines entrusted the Employer with the obligation to provide a safe and woman friendly environment.
Pre Vishakha Scenario
Before the Vishakha guidelines came into picture, the women had to take matter of Sexual Harassment at Workplace through lodging a complaint under Sec 354 and 509 of IPC.
Sexual Harassment was a serious issue and it still is, it was needed to be given priority and measures were decided to be taken to tackle this problem. Government, employers, employees, women organizations all was thinking how to eliminate this menace from the society.
Everybody wanted to prevent Sexual Harassment as prevention is the first step to prohibit or abolish any hazardous thing from the society. To achieve this, one needs legislation as a tool based on that the government and the organizations will be able to make strategies and policies to remove the issue.
As all know Sexual Harassment is universal problem which is kind of violence against women. International community has recognized in their international treaties and documents the free from Sexual Harassment as a human rights of women. All the legal instruments dealing with this matter have laid down protection of life and liberty and these instruments have been used as a source to prevent and address the issue.
In India till the Vishakha judgment came there was no law to govern this matter and the guidelines which came as an outcome of this case were derived from the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW). Even the Constitution of India had grounded provisions in the form of fundamental rights of life and liberty, the right against discrimination and the freedom to practice any trade or profession or to carry on any occupation.
Post Vishakha Scenario
India did not have any legislation till the Bill for the protection of women from Sexual Harassment was moved in the Parliament in the year 2005. After a 10 long years gap in 2010, the Bill was in the Lok Sabha with slight changes in the old Bill. The new Bill defined “sexual harassment” and also provided for a redressal mechanism thorugh “internal Complaints Committee” in the workplace or “Local Complaints Committee” at the district level. There was a problem regarding the action to be taken against false and malicious charges or complaints, to solve this issue the Parliamentary Standing Committee in June 2011, submitted recommendations to remove false and malicious charges. Then the newer version of the Bill retained the action against false and malicious charges by ICC or Local Committee against the Complaint under section 14.
According to section 13 of the Bill there are two stages of enquiry, one is once the charges are found and proved the report of the same must be sent to the DC (Disciplinary Committee) and it will take action as per the service rules. This is again a time consuming process, where the victim has to produce the evidences again and go through cross examination, which is a kind of mental torture to the victim. The case may be different with a private sector then regarding the second process of enquiry, these stages or traditions are acting against the value Constitution of ICC.
In relation to this, the Apex Court in case of Medha Kotwal has clearly laid down that the report of the committee id final and the disciplinary committee is vested with the power to give punishment and to conduct second enquiry.
Till the new Act of 2013, came into effect; the problem of sexual harassment was governed by the guidelines laid down by the Vishakha case in the year 1997. The main objective of the Act was to implement the guidelines and to ensure an access a safe workplace by woman.
Current Indian Law On Sexual Harassment Against Women
To understand the whole jurisprudence on Sexual Harassment of Women at Workplace we need to step back to the landmark judgment of the honorable Supreme Court in Vishakha, in this case for the very first time in the definition of “Sexual Harassment” was laid down, it also acknowledged “Sexual Harassment at Workplace” to be a human rights violation and detailed guidelines were brought in.
Even after the Vishakha judgment came into force almost a decade ago, nothing was done to implement the guidelines there under; some women could effectively implement the guidelines to make the workplace friendly and gender equitable. Most of the public and private organizations have failed to follow the guidelines by setting up complains committees or change the service rules as required by the guidelines.
After many controversies and delays, a new development came up i.e. our Indian legislature passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, to provide protection for the working women against sexual harassment and also form a redressal mechanism complaint in this matter.
Snapshot of Statistics:
Within the last decade, more women have entered the work force. As their numbers surge, their vulnerability to harassment has also increased. Often reported in the media are criminal acts of rape, assault and molestation, while the ‘less severe’ forms of harassment like verbal abuse, repeated lewd emails or smses, physical touching, or unwelcome comments on behaviour or dress are given free reign because they do not qualify as criminal acts.
According to the International Labour Organisation (ILO), sexual harassment is a clear form of gender discrimination based on sex, a manifestation of unequal power relations between men and women. In addition, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has also noted the seriousness of this issue, and urged for “measures to protect women from sexual harassment and other forms of violence or coercion in the workplace.”
The issue of workplace sexual harassment in Singapore remains for the most part a ‘hidden’ problem. In 2008, the Association of Women for Action and Research (AWARE) conducted a survey to address this issue.
- Sexual Harassment is common in the Workplace
54% (272) had experienced some form of workplace sexual harassment. 27% of the 272 respondents experienced harassment by their colleague, while 17% were harassed by their superior. 79% of the victims are women; 21% were men. 12% had received threats of termination if they did no comply with the requests of the sexual harassers.
- Sexual Harassment occurs across the board.
Both women and men are more likely to have been harassed by the opposite sex, although some have also experienced harassment from the same sex. In AWARE’s survey, 79% of the respondents who reported having experienced workplace sexual harassment were female; 21% were male. Sexual harassment occurs across the board. Most of the harassment is experienced at executive levels, followed by administrative staff. While reports of victimization are fewer, there are incidents of sexual harassment at management and senior management positions.
- Awareness of mechanisms for redress within the Workplace
66.6% (333) were not aware of any policies. 50.4% indicated that they were aware of a department or resource person they could approach on sexual harassment.
- Industries with high levels of sexual harassment incidents(in no particular order)
Business, trade, banking and finance
Sales and marketing
Education, lecturing and teaching.
Like all other acts, this act is being highly criticized by women right activists and several NGO’s. The internal committee formed under this act has the power to decide a monetary fine which must be paid by the perpetrator, depending on their income and financial stability. This is a kind of discriminatory method, it supports and envisages inequality among different sections of the society, for example, a person earning low income would be paying a lower fine compared to a senior who earns more.
Other criticisms are that the Act does not cover the agricultural workers, armed forces (a sector which is heavily dominated by men). Enquiries in armed forces are done within the closed rooms which should be undone, and the armed forces women must be included into the scope and ambit of the Act as no interests or strategic matters are affected by protecting them against Sexual Harassment at Workplace. According to a few, this Act is gender biased and not all the gender neutral, “it is a discriminating Act” which protects only women and not men from Sexual Harassment at Workplace. The reason is that over the last years various recent studies and surveys have shown women’s involvement in acts of sexual harassment at workplaces. The research says that most of the cities in India are gender-neutral and women are dominating like men. According to the surveys, researches in practical circumstances and situations are totally different from what the legislators envisaged. Moreover, the Act lacks the mechanism to cope up with situations like men being sexually harassed.
Another disputable area under this Act is the wide scope for false allegations. Many are misusing the Act for their personal benefits, which lead to untrue allegations and unnecessary litigation. If a matter under this comes up before the complaint committee, it is not only affecting the reputation of the man falsely accused but also his family even though the Act is a great step forward for the protection of women from Sexual Harassment at Workplace.
Conclusion And Suggestions:
One can prevent this issue at different levels, government, organizational and individual level by trying to prevent this issue by confronting and not blaming anyone.
- At the Organizational level the employer can provide safe and harassment free environment through provisions and regulations framed within the organization. The sense of security which can be derived from this organization policy can facilitate to work effectively and efficiently for a productive outcome. The entity can give training programme, workshops, educational programme related to sexual harassment to avoid situations.
- The organization must show commitment to this matter. Every matter must be taken seriously and investigated without any delay. This will send a message to all employees that the employer is interested in protecting the interests of women employees and also trying to bring a good working environment. Surveillance methods is a preventive measure, where CCTV are installed in the workplace.
- Employers must conduct monthly meeting with employees to know their problems. Accordingly they can provide a safe working environment.
- From the angle of Government, a tremendous job has been enacting a law to eliminate this social problem of Sexual Harassment. The significant consideration part is the implementation process. There is a need to bring empowerment of women through educational programmes and knowledge which will help them to recognize and realize their basic rights. Governments see that there is gender equality.
- The media can play an important role in curbing this curse from the society through films, news, advertisements, dramas these are approachable to the public and through other sources like debates, talk shows, and the media can change the mindset of the people.
- If the women group or workers come to know about any such harassment, they must bring it to the notice of the complaint committee. It is the duty of the committee to keep everything confidential. Every female worker should know that it is employer’s legal duty to provide women employee with a safe working environment. All the male employees must understand these kinds of incidents affect the health, confidence and ability of a woman and will also lead her to leaving the job.
- Above all these there should be social acceptability. Women should not fear to come forward with their problems and complaints. They must be feeling courageous to speak out for themselves. There must be greater involvement of public in awareness programmes and they must play a greater participatory role in governance.
The harassment can be prevented by conducting training sessions for employees once in a year and making them aware about their rights at the workplace. Moreover the supervisors and the managers should be trained enough so that the subordinates are carefree of the attack.
From our paper, we can conclude that women are still not safe at workplace and treated as a public space.
“ENOUGH IS ENOUGH”…..