SEXUAL HARASSMENT OF WOMEN AT WORKPLACE: AN ANALYTICAL STUDY OF GLOBAL PERSPECTIVE.

This article was written by Shubham Singh a student of Amity University U.P.

ABSTRACT

Sexual Harassment of women is one of the most heinous offence in our society. The sexual harassment of women at workplace is on rise which lays encumbrances upon development of women in employment sector. The data from ILO shows that sexual harassment of women is more attached to the social stigma of the supremacy of men over women rather than the biological differences of the both sexes. There is a need for more effective laws for specifically checking the sexual harassment. Sexual harassment is affecting the victims and also damming the workplace reputation. It is in direct contravention of the human rights ensured to every person. If sexual harassment takes place in the knowledge of the employer then he should be held liable if he does nothing to stop it. If sexual harassment takes place in the knowledge of the employer then he should be held liable if he does nothing to stop it. It is his responsibility to eradicate such hostile and unsafe atmosphere. Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace. Unless there is enough emphasis on sensation at the workplace, legal changes are hardly likely to be successful.

SEXUAL HARASMENT OF WOMEN AT WORKPLACE: AN ANALYTICAL STUDY OF GLOBAL PERSPECTIVE.

Introduction

Women represent approximately half of the world population so when we talk about any problem faced by women we technically mean the particular problem is being faced by half of the world. India along with the whole world is growing and developing, and it is need of the hour that every person of both gender in the society should act decisively and contribute to the growth of the world. Therefore it is high time that we should seriously think about the evils prevailing in our society that lay encumbrances upon such development. People must ponder about obstacle of gender biasness as we know that without empowerment of women, growth of human values is impossible. The world celebrates International Women’s day on 8^th of March every year to encourage the people to renounce practices derogatory to the dignity of women. The Article 51A (e) of the Indian Constitution imposes the same fundamental duty. But do we really need a special day to respect and celebrate the existence of women in our society, for mankind every day should be women’s day.

Harassment of women is greatest of the evils in our society, women are being harassed ever since they have been the reason for existence of every person on this earth. Data from survey of International Labour Organization shows that Sexual harassment is not much related to actual biological differences between men and women but is more attached to social stigma of perceptions that male are supreme over female when it comes to the role they play in the society.[1]

Sexual harassment has been defined by several authorities across the world. Various synonyms have been introduced across world for sexual harassment like in Netherlands it is denoted by ‘unwanted intimacy’, in France by ‘sexual blackmail’ and in Italy it is known as ‘Sexual Molestation’. The literal or dictionary meaning of Sexual Harassment is making of unwanted sexual advances or remarks to a person, especially at work.

International Labour Organization defined Sexual Harassment at international levels as violence against women as well as discrimination on gender basis.[2]

In India women are worshiped in the name of goddesses. But still instead of protecting these goddesses we are now much engrossed in destroying their stature not by just committing such immoral offences like eve-teasing, sexual harassment etc., but by also allowing omission of these offences in our society.

Sexual Harassment at Work Places

Sexual harassment is clearly about social stigma of asserting supremacy instead of deriving sexual pleasure out of the act. In workplace, sexual harassment are mostly done by superior authorities who can influence others at inferior position and can affect the career and exhibit power and control on the victims. The victim in such case is left with very limited options in a vulnerable state as to either secure its career or expose itself to harassment and exploitation or to be desolated. The scenario of harassment is not only confined to physical area of the corporation, factory or enterprise but also includes work related venues and interactions where ever the employees interact with their harassers, therefore harassment is not only confined to employers of seniors but may also be done by clients or customers. According to Supreme Court it means that it must be proved that whether there has been such discrimination and as to whether it is unjust.[3]

International Labour Organization explains the sexual harassment as a clear form of gender discrimination based on Sex, manifestation of unequal power relations between men and women. Sexual Harassment is not related exactly to the actual biological differences between the two sexes rather it relates with the gender or social roles attributed to men and women in socio – economic life which can lead to unbalanced male- female power relationship. Past few years have witnessed the rise in ratio of women joining labour forces. The International Labour organization has called this as violation of women workers fundament right to work with safety, right against discrimination on basis of sex and also a form of violence.[4]

European approach to sexual harassment

• Unwanted conduct of sexual nature,
• Other conduct based on sex affecting the dignity of women and men at work.
• Unwelcome physical, verbal or non-verbal conduct is included in it.[5]

The Canada labour code also gives emphasis on the definition of sexual harassment. According to Section 247.1. Of Canada Labour Code sexual harassment means:

     Any conduct, Comment, gesture or contact of sexual nature-

• That is likely to cause offence or humiliation to any employee;
• That, might on reasonable grounds, is perceived by that employee as placing a condition of sexual nature on employment or on any opportunity for training or promotion.[6]

United Nations (U.N) has also constituted a committee to get rid of discrimination against women. According to it sexual harassment includes the acts which:

• Inflict physical,
• Mental or sexual harm or suffering,
• Threats of such acts and coercion.

 The United Nations (U.N) Recommendation on sexual harassment of women is as follows:

Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts, and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and constitute a health and safety problem. It is discriminatory when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment including recruiting or promotion or when it creates a hostile working environment.[7]

III. Asian Countries Scenario on Sexual Harassment at Workplace.

In most of Asian countries the sociologists and advocates against the Sexual Harassment suggest that traditional and conservative societies of Asia are the basic reason for such evils in Asian communities and also because of such communities the victims are reluctant to take their stand because of the stigma prevalent in society, that they feel shy or fear retaliation or after effects, or may not know what to do about it. In maximum cases the victims don’t even know that what is happening with them is an offence and may take it as a consideration for their working life.

In a number of Asian countries progress has also been made to curb the menace of sexual harassment at work place. Development in some of the Asian countries to protect the women from sexual harassment at work place can be done by various ways.

STEPS TO BE TAKEN

Anti-sexual harassment laws should be made like in Philippines in 1995, an Anti-Sexual Harassment Act was passed to promote zero tolerance for sexual harassment at workplace.[8] In 1998 Thailand Labour Court was amended to include penalties for sexual violation by Superiors.[9] In Malaysia the code of practice on the prevention and eradication of sexual harassment in workplace was adopted in 1999. This code provides the guidelines to employers on forms of sexual harassment, complaint and grievances procedures, disciplinary rules and penalties, protective and remedial measures. Trade Union Congress in Malaysia has also incorporated a cause for sexual harassment in its collective agreements.[10] In Hong Kong in 1996 The Sex Discrimination Ordinance which includes explicit provisions on sexual harassment in employment came into force.

In India a landmark judgment passed by Hon’ble Supreme court in 1997 declared sexual harassment as a social problem of considerable magnitude and also a violation of fundamental rights of working women.[11]

INDIAN CONTEXT

We have already discussed above that India is a country in which women is represented in the name of different goddesses. Apart from it India is also known as ‘BHARAT MATA’.  The term Mata i.e. mother itself indicate the female parent with the objective to look after someone kindly and protectively. Like every other country India is also facing the menace of Sexual Harassment but still no statute in India gives the statutory definition of sexual harassment.

In India from time to time voice has been raised against the sexual harassment of women. It was for the first time in case of Vishakha v. State of Rajasthan[12] in which the voice was raised against the sexual harassment of women at workplace within the firm determination. Hon’ble Supreme Court laid down few guidelines for the protection of women against the sexual Harassment at work place and also defined the offence of sexual harassment at work place and also defined the offence of sexual harassment at work place which includes physical advances and contacts, a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical, verbal or non- verbal conduct of sexual nature.

If the acts aforementioned are committed in such circumstances where the victim of such conduct has a reasonable apprehension that in relation to the victims, employment or work whether she is drawing salary or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is  discriminatory for instance when the women has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Indian Penal Code presents a number of penal provisions to deal with the provisions are available to deal with the provisions of punishment for different – different offences committed against the women for instance section 294 that deals with two types of specific offences that are any absence act committed in public place and singing, reciting or utterance of any obscene song in public place. Section 354 provides punishment for assault or use of criminal force on women to outrage her modesty.

According to the case of Permanundo Shaha v. Brindaband Chung,[13] a room was occupied by four women, during the night a man entered into the room but on shouting he escaped from there. The court held that it is an offence under section 509 of IPC as it amounts to intrusion in the privacy of a women.

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

This Act has been enacted to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

The ambit of this new Sexual Harassment Act is very wide and is applicable to the organized sector as well as the unorganized sector. In view of the wide definition of the ‘workplace’, the statute, inter alia, applies to government bodies, private and other sector organizations, hospitals etc. As per the Act, the work place consists of all the places visited by employees during the course of employment or for reasons arising out of employment including transportation provided by the employer for the purpose of commuting to and from the place of employment. The definition of employee under the Sexual Harassment Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labour, co- workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether the terms of employment are express or implied.

   The Sexual Harassment Act requires an employer to set up an ‘Internal Complaints Committee’ (“ICC”) at each office or branch, of an organization employing at least 10 employees. The government is in turn required to set up a ‘Local Complaints Committees’ at district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer. The Sexual Harassment Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.

   The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as transfer of the aggrieved woman or the respondent to any other workplace; or granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/contractual leave entitlement.

   So as to ensure that the protections contemplated under the sexual Harassment Act do not get misused, provisions for the action against “false or malicious” complaints have been made.

STEPS TO BE TAKEN ON THE PART OF THE EMPLOYER

In addition to ensuring to the above mentioned compliances and rules and obligations casted upon them there are many obligations upon the employer inter alia, like providing a safe working environment, display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee, organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee, treat sexual harassment as misconduct under the service rules and initiate action for misconduct. The employer is also required to monitor the timely submission of report by the ICC.

AMENDMENTS IN THE INDIAN PENAL CODE

The consequences of emerging importance of issues related with the matters of sexual harassment at workplace has introduced a new amendment in Indian Penal Code 1860 and a new section 354A has been added by the criminal law(amendment) Act, 2013. By virtue of this Amendment Act this offence is defined as well as punishment for the particular offence has been provided which incorporates the punishment of 1-3 years and it also envisages the fine or both.[14]  Whereas sexual harassment results in the violation of the fundamental rights of a women to equality under Article 14 & 15 of the Constitution of India and her right to live with dignity under Article 21 of the constitution and right to practice any profession or to carry any occupation trade or business which includes a right to safe environment free from sexual harassment.

CONCLUSION

Sexual harassment is affecting the victims and also damming the workplace reputation. It is in direct contravention of the human rights ensured to every citizen of this world. If sexual harassment takes place in the knowledge of the employer then he should be held liable if he does nothing to stop it. It is his responsibility to eradicate such hostile and unsafe atmosphere. For any sexual harassment law to be successful in India or any part of the world, it is important to be aware of the difficulties confronting our society and ways to overcome them. We all know that India is a patriarchal society and in most cases of sexual harassment remain unreported. Women are reluctant to complain and prefer silence due to lack of sensitivity on the part of Indian society. There is a need to gender- sensitise our society so that the victim does not feel guilty and is encouraged to report any form of harassment. The victim’s privacy must be protected. The police and the judiciary, in particular, also need to be gender-sensitised. There should be speedy redressal and an increase in the conviction rate. Women themselves should be made aware of their right to a safe and harassment – free work environment. The concept and definition of sexual harassment should be clearly laid down, and redressal mechanism made known to women in each and every sector of the economy. Structures and mechanism should also be created for women in every sector to combat sexual harassment of women. Employers should take measures to create a healthy atmosphere which should be harassment free and such situations will be less likely to happen. They can easily achieve this by just being active and more vigilant for signs of a problem. They can act as role models by their accessibility to employees, to be good listeners, to be objective and consistent, and to respond quickly and with sensitivity to complaints. If sexual harassment is reported or observed, it is duty of employers to play significant role in the investigation and resolution of an alleged incident, including supporting a victim, and implementing punishment of a harasser. It is important that employers know about the laws, policies, and procedures governing sexual harassment so they can fulfil their responsibilities, protect their organizations from stigma of sexual harassment and provide a respectful work environment for all. Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace. Unless there is enough emphasis on sensation at the workplace, legal changes are hardly likely to be successful. Workplaces need to frame their own policies and implement them strictly since implementation is important which is currently missing. Women as a matter of fact are the most significant part of our society and hence, their security and protection are utmost important. Proper legislations and laws are needed to curb and combat the evils prevailing in our society against women so as to provide them a safe environment and therefore, a safer society.

[1] ILO, Actions against sexual Harassment at work place in Asia and the Pacific, 2001, p.8.

[2] ILO, Sexual Harassment at work place: National and International Responses, 2005.

[3] Harksenv. Lane v. NO & Others, (1998) (1) SA 300 (CC).

[4]ILO Resolution on equal opportunity and equal treatment for men and women in employment, 1985 and ILO Resolution on ILO action on women workers, 1991. Available at www.ilo.org.

[5]Official journal of the European Communities, Article 2, 2002.

[6] Canada Labour Code, Part III, Standardhours, Wages, Vacations and Holidays, Division XV.I, R.S., 1985,c.9 (1^st Supp.), S.17. Source: www.canlii.org.

[7] United Nations Committee on the Elimination of Discrimination against Women: General recommendation No. CEDAW/1992/L.1/ADD.15.

[8] National guidelines in the Philippines- harassment at workplace. Available at- http:// www.ilo.org

[9] ILO NATLEX. Available at – http:// www.ilo.org

[10] McCarthy, Jennie M, Landmark Decision on Sexual Harassment for Malaysian women. New England International and Comparative Law Annual, 1997.

[11] Vishaka and others v. State of Rajasthan and others (1997) SC 3011.

[12] Vishaka and others v. State of Rajasthan and others (1997) SC 3011.

[13]Permanundo Shaha v. Brindaband Chung, (1895) 22 cal 994.

[14] Criminal law amendment act 2013, http://www.nic.in/wcdact