AN EXPLORATORY STUDY ON SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

Authors:

Chetana Prakash, SLS, Hyderabad

Manasi Pawaskar, GLC, Mumbai

Saket Pathak, MNLU


Edited by:

Puru Pratap Singh, GNLU

INTRODUCTION

Women have been subjected to discrimination and harassment in different walks of their life since time immemorial. Being in the 21st century and talking about harassment of women feels like not much has changed over the years in spite of the fact that some key socio-legal changes have taken place. But the question is, are those changes enough? The sad truth is that despite all the efforts not much change can be seen in the plight of women. Of all kinds of harassments faced by women, sexual harassment is the worst of all. Sexual predators can be found everywhere and anywhere and that can be said without a tinge of doubt. Workplace is supposed to be a safe environment for every employee regardless of the person’s gender but alas women just can’t seem to escape the clutches of sexual harassment even at workplace. According to the latest reports 40-50% of women faced sexual harassment in EU (European Union) countries and 30-40% of women in Asia-Pacific countries.[1]After all, as quoted by Christine Lagarde, “when women do better, economies do better” and women can do better only when they are given the fair share of the dignity and well-being that they have been deprived of since ages at workplace.


MEANING AND CAUSES

A working environment that is sexually hostile will also amount to sexual harassment. Sexual harassment refers to unwelcome sexual advances or requests for sexual favours, and other physical or verbal conduct of a sexual nature. If the sexual behavior makes the person feel offended, humiliated or intimidated, then it is a sexual harassment.[2] Some of the causes that the victims don’t make a formal report or complaint to their seniors are a lack of support, protection and fear of losing their job. Also the CEO/founder may not have been trained to handle misconduct in budding businesses or organizations. The Human Resources function may also not be fully developed and may lack expertise to deal with sensitive issues. A person who sexually harasses is responsible under the Sex Discrimination Act. However, employers and others can be held responsible under the act for acts of sexual harassment done by their employers or agents.

INDIAN TAKE ON SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

Workplace sexual harassment in India was recognized for the first time by the Supreme Court of India in its landmark judgment of Vishaka v. State of Rajasthan[3] or the Bhanwari Devi case, wherein the Supreme Court framed certain guidelines and issued directions to the Union of India to enact a law for combating workplace sexual harassment.

Bhanwari Devi, a dalit woman, employed with the rural development program of the Government of Rajasthan, was brutally gang raped when she tried to stop a child marriage. This incident, brought to the spotlight, the atrocities that working women are exposed to everyday and the urgency for safeguards to be implemented was highlighted.

The Vishakha guidelines comprehensively covers the duty of the employer or other responsible persons in work places and other institutions, definition of sexual harassment, preventive steps, criminal proceeding guidelines specifying rights of the victims during the proceeding, initiation of disciplinary action when such misconduct takes place, complaint mechanism, formation of a complaints committee, creation of an environment where such issues can be raised and also provisions for third party harassment.

It does not come as a surprise that the POSH Act and the POSH Rules was enacted 16 years after the Vishaka Judgement. Due to the absence of a specific law regarding this in India, the Supreme Court, in the Vishaka Judgment, laid down certain guidelines, hence making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment which were not being followed by employers until the enactment of the POSH Act.

The problem of sexual harassment in the workplace had been raised time and again even before the Bhanwari Devi case. Pertaining to the absence of a law, complaints were filed under Sections 294 which deals with eve teasing, 354, which deals with outraging the modesty of a woman, and 509 which deals with any word, gesture or act intended to insult the modesty of a woman.

The Rupan Deol Bajaj v. KPS Gill[4] case in 1988 was another victory for women all over the world, when I.A.S officer Rupan Deol Bajaj spoke out Director General of police, Punjab, KPS Gill, alleging that he had pinched her bottom at an official party. Justice was served in 2005, when KPS Gill was sentenced to pay a fine of Rs. 2 lakhs, 3 months rigorous imprisonment, 2 months simple imprisonment and 3 years of probation.

In Apparel Export Promotion Council v. A.K Chopra[5], the Supreme Court sustained the sacking of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace. In addition to this, the Court expanded the definition of sexual harassment by ruling that physical contact is not essential to amount to an act of sexual harassment.[6]


INTERNATIONAL TAKE ON SEXUAL HARASSMENT OF WOMEN AT WORKPLACE

Sexual harassment of women at workplace is a topic widely discussed around the globe. There are various international organization that have framed rules to prevent sexual harassment at workplace and the signatories to such treaties and conventions have to abide by the rules encompassed in those treaties and conventions. The most remarkable treaties that exist with regards to sexual harassment of women at workplace are:-

1. Universal Declaration of Human Rights, 1948: Articles 1, 2 and 7 talks about equality and protection against discrimination.

2. United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979: Article 11 ensures elimination of discrimination against women at workplace.

3. UN Declaration on the Elimination of Violence against Women, 1993: Article 1 of the treaty condemns the practice of sexual harassment of women at workplaces and advocates for equal rights.

4. The Beijing Platform of Action: drawn at the United Nations’ Women’s Conference in Beijing in 1995 called to advance women’s rights and to eliminate violence against women including sexual harassment at work.[7]

Apart from these international treaties, there are various countries who have enacted laws for the prevention of sexual harassment of women at workplace. Australia, Canada, France, New Zealand, Spain, Sweden and the United States and other industrialised countries cover sexual harassment under laws on wrongful dismissal, tort law and criminal law.[8]The U.S. Supreme Court provided examples of tangible consequences in Burlington v. Ellerth[9] case.[10] However, there are countries that give the least importance to a grave offence like sexual harassment of women at workplace like Lebanon and the Gulf Cooperation Countries.[11]


PREVENTION OF SEXUAL HARASSMENT

Sexual harassment is a serious issue and it has become one that receives a lot of negative attention.[12] When we talk about protection of women at workplace, we are actually talking about a lack of formal policies and procedures to protect victims of sexual harassment. It is observed that this happens more with women gender as they are considered to be most vulnerable section of the society these days. The reality of such incidents at workplace is that there is more to worry about under-reporting, than people misusing the law. Awareness should be created among the female employees in a suitable manner. There should be a proper frame work of policies at the place of work for women. Staying safe at work, free from sexual harassment is a basic human right. Women should come up and speak and need to feel confident, protected and supported and that their career path won’t be jeopardized.

[1] https://www.ituc-csi.org/IMG/pdf/Harcelement_ENG_12pgs_BR.pdf [2] http://humanrights.gov.au/our-work/sexual-harassment-workplace-legal-definition-sexual-harassment [3] AIR 1997 SC 3011. [4] 1996 AIR 309 [5] 68 (1997) DLT 303 [6]Limited, M. (n.d.). Landmark judgements on Sexual Harassment in India. Retrieved July 09, 2020, from https://www.myadvo.in/blog/landmark-judgements-sexual-harassment-india/ [7] Preventing and Responding to Sexual Harassment at Work: Guide to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, International Labour Organization (2013), https://www.ilo.org/newdelhi/whatwedo/publications/WCMS_630227/lang--en/index.htm (last visited Jul 10, 2020). [8] Sumitra Sumitra, Sexual harassment of women at workplace in India a study oF legislative provisions and judicial approach,Shodhganga@INFLIBNET, http://hdl.handle.net/10603/207279 (last visited Jul 10, 2020). [9] 534 US 742 (1998). [10] Supra note 8. [11] Hussin Jose Hejase, Sexual Harassment in the Workplace: An Exploratory Study from Lebanon (2015), http://dx.doi.org/10.5296/jmr.v7i1.6965(last visited Jul 10, 2020). [12] https://www.indialegallive.com/special-story/protection-of-women-from-sexual-harassment-at-workplace

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