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Sexual Harassment at Workplace: The Situation so Far




Abstract:

This paper is concerned with Sexual Harassment at Workplace. It firstly defines what sexual harassment is and then goes on to discuss various situations which constitute sexual harassment. It then talks about various kinds of sexual harassment. A proper discussion on the landmark case of Vishakha v State of Rajasthan and various other cases dealing with sexual harassment has been done. It then discusses about the guidelines given by the Supreme Court in the Vishakha case and talks about the introduction of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, its salient features and criticism.


The paper also concerns the contemporary issues regarding sexual harassment and it discusses whether the current situation regarding workplace environment being free from sexual harassment is better or not.


The paper, at last, discusses a very important issue-the sexual harassment of men at workplace. It gives various reasons regarding men being sexually harassed and at last it discusses what should be done to make the situation better.


1. Introduction


India is a developing country with a human resource sufficient enough to leave many developed countries behind. Today, not only men but women also step up to give their maximum to the country by using their potential in the required field. We can find women working in both organized and unorganized sectors. Of the total 402 million workers, 275 million are males and 127 million females. This would mean that 51.7 percent of the total males and 25.6 percent of the total females are workers[1]. This shows the positive attitude of changing India where women are allowed to leave their house and go out to work instead of being caged in the four-walls of suppression.


However, many people might have changed their view of allowing only the male members of the house to earn the daily bread, but many have not. People still think that women are subordinate to men and should not be allowed to go out and work. They still think that women have less power than men. It is only this power-relationship mentality which suppresses the women the most.


Let us take an example; a girl studied very hard during her entire study life and is able to secure a good job for herself at the end. Today is the first day of her job. She leaves her house being very excited about her first day of her first job. However, the employees of the company which she joins have a male majority with male dominion mentality. They try to harass her by making ugly compliments, advancing sexual remarks and even hitting on her. The girl leaves the office and quits the very next day. She could prove to be a very useful resource for the company in terms of her intellect and hard work, but due to the other members a possibly useful human resource goes wasted. But what is this evil called which affected the girl very much that she left her job?


This social evil is called “Sexual Harassment”.



2. What Is Sexual Harassment?


Sexual harassment is a major problem affecting all women irrespective of their place of work or the profession they are involved in. Sexual harassment is about male dominance over women and it is used to remind women that they are weaker than man. Sexual harassment is rooted in cultural practices and is exacerbated by power relations at the workplace.


Section 354A of the Indian Penal Code, added through the way of Criminal Law (Amendment) Act 2013, enlists the acts which constitute the offence of sexual harassment. They are:

· Physical contact and advances involving unwelcome and explicit sexual overtures

· A demand or request for sexual favors

· Showing pornography against the will of a woman

· Making sexually colored remarks

· Any other unwelcome physical verbal or non-verbal conduct of sexual nature.[2]


These offences can often be seen in the workplace environment affecting the modesty and mental health of women. A widespread problem affecting workplace environment is sexual harassment. A survey conducted by Dr Fatima Meer (1988) indicates that 68% of women interviewed had experienced sexual harassment in situations related to the workplace[3]. Yet only a few cases have been filed in the proper forum.


Sexual harassment can be verbal as well as non-verbal. Verbal forms include graphic comments about an individual’s body, unwanted sexual advances, unwelcome telephone calls with sexual overtones, unwanted enquiries about a person’s sex life, sex-related insults or jokes, unwelcome requests for dates or whistling, requests for sex in return for a job, promotion, job retention or securing a pay increment. Non-verbal or visual forms include leering, public display of sexually suggestive objects or pictures or winking. Physical forms include unwelcome patting, pinching, fondling, kissing, strip-search, assault, molestation or rape[4].


Apart from verbal and non-verbal, sexual harassment can be of the following two kinds. Tese got evolved in the famous Meritor Savings Bank v. Vinson[5] case. These are:


a. Quid pro quo[6] It means something for something. This type of harassment occurs when a superior asks a subordinate to provide sexual favors or lose the job. The main essential of quid pro quo harassment is power. There must be a power relationship between the accused and the victim which the accused misuses.


b. Hostile Work Environment Harassment[7]– This type of harassment creates a hostile work environment for the victim so that the victim is left with no other option but to leave the job.


Hence, women are being subjected to sexual harassment in a number of ways. This issue suppresses various human rights of the women like Right to equality, Right to Work in a work healthy environment, etc. So, it is important that there are some laws or rules which can help to fight this issue. But are there any laws or rules existing today which are implemented in order to combat this situation?

Fortunately, the answer is yes.



3. Vishakha Guidelines And Other Landmark Cases:


Sexual harassment in India first came into picture with the landmark case of Vishakha & ors v State of Rajasthan[8]. A NGO, called Vishakha, appealed the judgment of the Rajasthan High Court regarding a case of gang rape. They filed a Public Interest Litigation (PIL), which, itself, is a creation of judiciary. In the concerned case, a Rajasthan government employee with the Women’s Development project was gang raped for campaigning against and stopping child marriage. Powerful landlords of a village, not very far from Rajasthan’s capital, Jaipur, were accused of perpetrating the crime as they were enraged by the ‘guts’ of a ‘lowly born woman’ who opposed the marriage of a Gurjar family. This incident took place in 1992. Both the trial court and the high court found the accused not guilty.


However, it is truly said that “justice can be a little delayed but cannot be denied to the one who opts for it”. The Supreme Court found the accused guilty of the offence and also found out there is a lack of legal recourse against sexual harassment at workplace. The Supreme Court issued a set of guidelines which later came to be known as the ‘Vishakha Guidelines’[9]. These are:


· It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.


· Sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:

(a) Physical contact and advances;

(b) A demand or request for sexual favors;

(c) Sexually-colored remarks;

(d) Showing pornography;

(e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.


· All employers or persons in charge of workplace whether in the 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:


(a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.

(b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employer’s steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) 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 workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.


· Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.


· Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.


· Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time-bound treatment of complaints.


· The complaint mechanism, referred to in above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person-in-charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government Department.


· Employees should be allowed to raise issues of sexual harassment at workers’ meeting and in other appropriate forum and it should be affirmatively discussed in employer-employee meetings.


· Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner.


· Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person-in- charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.


· The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in private sector.


There are many other cases which helped in developing the laws regarding sexual harassment at workplace and which act as precedents so as to control or deter any such behavior in the future.


The famous Rina Mukherjee v The Statesman[10] case is a perfect example of how courage and bravery can help you sweep through your troubles in life. In 2002, Dr Rina Mukherjee, then a senior reporter working for The Statesman complained of sexual harassment. Soon she was fired from her job. Statesman refused conciliation proceedings and the labor suit moved to the Industrial Tribunal. In a landmark judgment, the Tribunal awarded her reinstatement with full back wages from the time of her termination in October 2002.


Rupan Deol Bajaj v KPS Gill case[11] was one of the most publicized, high-profile legal cases in India and remained in the media limelight for many years. The case also is known as ‘The Butt-Slapping Case’. Rupan Deol Bajaj was an Officer of the Indian Administrative Service belonging to the Punjab Cadre. She filed a complaint against KPS Gill, Director General of Police, Punjab saying that he had molested her modesty by patting her posterior during a party hosted on 18 July 1988 at the Chandigarh residence of then Punjab Financial Commissioner, S L Kapoor. She was at that time working as the Special Secretary, Finance, as an I.A.S. officer. In 2005, the Supreme Court of India upheld the charges and conviction of KPS Gill for the offense.


Medha Kotwal Lele v Union of India[12] is a landmark case questioning the implication of the guidelines set out in the famous case of Vishakha & ors v State of Rajasthan[13]. The present case arose when Medha Kotwal Lele, 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 Vishakha 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 Vishakha 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 Vishakha 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 Vishakha Guidelines require both employers and other responsible persons or institutions to observe them and to help prevent sexual harassment of women. In the event of non-compliance to the Vishakha Guidelines, the Courts orders and/or directions above, aggrieved persons should approach the High Court of the state concerned.


In Apparel Export Promotion Council v A. K. Chopra[14], Miss Suchitra Vishnoi, clerk-cum-typist alleged that A. K. Chopra, personal secretary to Chairman, AEPC had tried to touch her physically. But, she could not provide any concrete evidence of the same in the court of law. In the meanwhile, A K Chopra got expelled by the enquiry officer. The High Court reinstated Supreme Court’s view given in B. C. Chaturvedi v Union of India and others[15]that there had to be some evidence before the enquiry officer for it to come to the conclusion that the allegations made are true, that such event or a thing actually happened. Therefore, the court held that A K Chopra to be reimbursed with back-wages and he is entitled to continue his service in AEPC. However, the Supreme Court applied the law laid down in Vishakha case and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexual harassment of a subordinate female employee at the work place on the ground that it violated her fundamental rights guaranteed by Article 21 of the Indian Constitution.


These all cases show that in India, the judiciary has played a very active and significant role in determining what sexual harassment is, the various steps need to be taken by those authorized to do so and that no one can be denied of justice if one asks for. Even in the absence of the comprehensive law on sexual harassment at the workplaces, the Indian Judiciary has attempted to provide justice to the victims. In the Vishakha case, the Supreme Court went on to make laws against harassing women at workplace. Patriarchal attitudes and values are the biggest challenge in the implementation of any law concerning women in our society. Combating these attitudes of men and women and the personnel involved/responsible for implementation of laws is most crucial in prevention of unwanted sexual behavior[16].



4. POSH Act- Introduction, Features And Criticism:


· Introduction-

In India, law making is a lengthy process because of the various check and balances, parliamentary debates and requirement of majority to pass a bill. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill (herein, referred as POSH Act) was introduced by women and child development minister Krishna Tirath in 2007 and approved by the Union Cabinet in January 2010. The bill was finally passed by the Lok Sabha on 3 September 2012. The Bill was passed by the Rajya Sabha on 26 February 2013. It received the assent of the President of India and was published in the Gazette of India, dated 23 April 2013.


The POSH Act applies to the whole of India. As per the act, an ‘aggrieved woman’ in relation to a workplace, is a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent[17]. The POSH Act applies to both the organized and unorganized sectors in India. It inter alia, applies to government bodies, private and public sector organizations, non-governmental organizations, organizations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house[18].



· Salient Features-

a. The act is exhaustive on various terms which were never defined before like who is an aggrieved woman, what constitutes the workplace, what all constitutes sexual harassment, etc.

b. The act provides for an Internal Complaint Committee (ICC) at each office or branch of an organization consisting of ten or more employees to hear and redress the grievances pertaining to sexual harassment.

c. The ICC will be a 4 member body under the chairmanship of a woman employee and will include 2 members from amongst the employees preferably committed to the cause of the woman.

d. A complaint of sexual harassment can be filed within a time limit of 3 months. This may be extended to another 3 months if the woman can prove that grave circumstances prevented her from doing the same.

e. The Act has a provision for conciliation. The ICC/LCC can take steps to settle the matter between the aggrieved woman and the respondent, however this option will be used only at the request of the woman.

f. The act prescribes necessary punishment that may be imposed on the convict by an employer for indulging in sexual harassment.

g. The POSH Act also envisages payment of compensation to the aggrieved woman.

h. The act also puts certain obligations on the employer so as to ensure compliance with the other provisions enlisted in the act, like providing a healthy and safe working environment, organizing awareness programmes, etc.

i. The Act also covers concepts of ‘quid pro quo harassment’ and ‘hostile work environment’ as forms of sexual harassment if it occurs in connection with an act or behavior of sexual harassment.

j. The inquiry process under the Act should be confidential and the Act lays down a penalty on the person who has breached confidentiality.

k. Government can order an officer to inspect workplace and records related to sexual harassment in any organization.

l. The Act also covers students in schools and colleges as well as patients in hospitals, employers and local authorities. The concerned institutions will have to set up grievance committees to investigate all complaints.



· Criticism-


a. Nowhere does the debate find the mention of constitutional equality.

b. It is also complained that the act is not extensive and there is a little in the language of the act which has raised the bar of confusion.

c. Inaccurate phrasing of the act- for ex, a section titled prevention of sexual harassment does not provide anything about preventive measures instead it highlights the circumstances which lead to sexual harassment[19].

d. The bill considers sexual harassment to be a civil wrong and not an offence

e. The ratio of men and women in the Internal Complaint Committee is not clear.

f. The provisions for sexual harassment should be penal in nature than being civil.

g. The bill provides for conciliation which can be misused by the accused as he can try to come into terms with the victim either by forcing her or by any other means.

h. The act does not talk about harassment of men at workplace.



5. Has The Situation Changed?


The situation has become better as now a comprehensive act on sexual harassment which deals with complaints and its redressal by proper agency has come into force. The situation is positive to the concern that women are now allowed to come forth and speak for themselves openly. The number of cases regarding sexual harassment has increased to 14% as claimed by the Indian Incorporatives in a survey conducted by the Bombay Stock Exchange. However, this is not a good news because it shows that women are being molested and harassed by other members in the organization now also.


The statistics of the International Labour Organization (ILO) reveal how 55% of women from the ages of 14 to 55 in Italy have been subjected to sexual harassment (2004); sexual harassment in the United States army has cost close to $250 million (1999 survey); 40 to 50% of women in the European Union have faced some form of sexual harassment; and a 2002 survey by Sakshi (a non-governmental organization) of 2,000 persons across workplaces found 80% acknowledging that workplace sexual harassment existed in India.[20]


Statistics reveal that females holding workplace authority positions (i.e., females who supervise others) are more likely to experience sexual harassment than are females who do not hold such positions. Also gender nonconformity i.e., more feminine behavior for males and less feminine behavior for females is associated with an increased risk of sexual harassment. Also sexual harassment will be greater in industries and occupations characterized by a higher proportion of male workers[21].


This is because of the patriarchal mentality that power flows from men to women and not vice-versa. Therefore, men cannot bear the above stated statements and they respond differently based on their mind set. However, this needs to be changed and can only be done by providing proper education and values to people from their initial stage of learning things.


So far, we have learned that a woman face sexual harassment, but is it so that men also face the same?

The answer is unfortunately yes.



6. Men Also Face Sexual Harassment?


No matter if people accept it or not, sexual harassment of men has recently been considered as a topic of discussion.


As noted in the above quote, sexual harassment is mainly about power. By power we broadly mean the ability to influence or control other people, allowing one to resolve conflicts to one’s own advantage. Most public discussion of sexual harassment focuses on the abuse of organizational power. A popular explanation for the rise in men’s grievances reasons that as women gain organizational power, they are increasingly in positions to harass men and that they do so[22].


Some of the cases of same-sex sexual harassment involve men who do not exhibit traditional male traits and who are harassed by either male coworkers or both male and female coworkers. Other same-sex cases involve the traditional quid pro quo harassment where a superior requests sexual favors from a junior employee in exchange for a promotion, raise, and so forth[23].


A recent, representative prevalence survey in Australia revealed that around 25 per cent of women and 16 per cent of men reported having experienced SH in the workplace in the past five years (AHRC, 2012). The same national survey reported that 29 per cent of respondents who experienced SH indicated it involved same-sex dyads (23% male-to-male; 6% female-to-female) and an additional 14 per cent indicated female-to-male SH (AHRC, 2012)[24].


Various researches have revealed that the main cause of men being harassed sexually is the power relationship which men exercise not only on women but also on men. Men who are subordinate in work environment are often sexually harassed by other men who are their supervisors or who hold a position superior to them. Men who exhibit feminine behavior are also sexually harassed by other men. The reasoning given by the harassers is that they assume them to be gay. However, such a behavior even with the members of the LGBTQ community shall be punishable.


Hence, it is true that men are sexually harassed but the problem is that there is neither extensive study concerning the issue nor any significant law which can deal with the situation.



7. Contemporary Issues Related To Sexual Harassment:


Nowadays, women do not fear to express openly what happened with them in the past. This is what the #metoo movement was concerned with. It started in the USA when women began to talk openly on social media platforms about them being harassed in their workplace. The movement does not take time coming to India.


Various cases came in social media platforms concerning Indian women alleging sexual harassment. One such famous case is between Tanushree Dutta and Nana Patekar where Tanushree claimed that she had been touched inappropriately by Nana during the shooting of a film.


Hence, it shows that women are now opening up and do not fear societal pressure anymore.



8. Conclusion:


The paper shows that although there is a comprehensive act on Sexual Harassment at workplace, the execution of same is not happening properly. There are still loopholes in the act which need to be addressed properly. The sexual harassment of women is a topic which has been well researched however, there is not much research in the field of male harassment and the same should be dealt with and laws must be made for the same.


Also, to change the mentality of the society, proper education should be provided to the children in their study period along with awareness programmes and drives.


If proper actions are taken along with proper implementation of laws are taken then the situation can become far better and India can become independent not only in sovereign terms but also in terms of sexual harassment.



[1] The Census Of India, 2001 [2] Indian Penal Code 1860, s 354A [3] Miriam Altman and Patricia Kumalo, ‘Combating Sexual Harassment’ [1995] Jstor [4]Rajendra Kharel, ‘Judicial Responses to Sexual Harassment at Workplace’ (2007) 1 NJA [5] Meritor Savings Bank v. Vinson 477 U.S. 57 (1986) [6] Rajendra Kharel, ‘Judicial Responses to Sexual Harassment at Workplace’ (2007) 1 NJA [7] Rajendra Kharel, ‘Judicial Responses to Sexual Harassment at Workplace’ (2007) 1 NJA [8] Vishakha & ors v State of Rajasthan (1997) 6 SCC 241 [9] ibid [10] Rina Mukherjee v The Statesman [2008] [11] Rupan Deol Bajaj v KPS Gill case 1995 SCC (6) 194 [12] Medha Kotwal Lele v Union of India (2013) 1 SCC 297 [13] Vishakha & ors v State of Rajasthan (1997) 6 SCC 241 [14] Apparel Export Promotion Council v A. K. Chopra (1999) 1 SCC 759 [15] B. C. Chaturvedi v Union of India and others (1995) 6 SCC 749 [16] Rajendra Kharel, ‘Judicial Responses to Sexual Harassment at Workplace’ (2007) 1 NJA [17] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 [18] Astha Poonia, ‘Sexual Harassment at Workplace’ (2019) 5 AIJJS 56 [19] Geetha K K, ‘Bill on Sexual Harassment: Against Women’s Rights’ (2012) 47(3) EPW [20] Naina Kapur, ‘Workplace Sexual Harassment- the way things are’ (2013) 48(24) EPW 27-29 [21] Heather McLaughlin, Christopher Uggen, and Amy Blackstone, ‘Sexual Harassment, Workplace Authority, and the Paradox of Power’ (2012) 77(4) ASR [22] Jennifer L. Berdahl, Vicki J. Magley, and Craig R. Waldo, ‘THE SEXUAL HARASSMENT OF MEN?’ (1996) 20 PWQ 527-547 [23] Susan Fineran, ‘Sexual Harassment between Same-Sex Peers: Intersection of Mental Health, Homophobia, and Sexual Violence in Schools’ (2002) 47(1) OUP [24] Paula McDonald and Sara Charlesworth ‘Workplace sexual harassment at the margins’ [2015] WES




Author Details: VEDANSH GUPTA (NLUO)

#metoo

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