Sexual Harassment affects all women in some form or the other. Lewd remarks, touching, wolf-whistles, looks are part of any woman™s life, so much so that it is dismissed as normal. Working women are no exception. In fact, working women most commonly face the backlash to women taking new roles, which belong to male domains within patriarchy. Sexual Harassment at work is an extension of violence in everyday life and is discriminatory, exploitative, thriving in atmosphere of threat, terror and reprisal.
Sexual harassment is all about expression of male power over women that sustain patriarchal relations. It is used to remind women of their vulnerability and subjugated status. In a society where violence against women, both subtle and direct, is borne out of the patriarchal values operating in society, force women™s conformity to gendered roles. These patriarchal values and attitudes of both men and women pose the greatest challenge in resolution and prevention of sexual harassment. Studies find that sexual harassment is still endemic, often hidden, and present in all kinds of organisations. Yet it is still not always viewed as a problem, which has to be systematically tackled. The issue is of concern for both women and the employers as studies show that sexual harassment touches lives of nearly 40-60% of working women. Thus, combating sexual harassment involves developing understanding of what is sexual harassment and change of attitudes in all- be it employees, colleagues, friends, administrators, employers or the law makers.
This article examines the changing position of law in respect of sexual harassment faced by women at workplaces.
What amounts to sexual harassment?
Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s 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 amounts to sexual harassment. It is discriminatory for instance when the woman 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. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. It is sexual harassment if a supervisor requests sexual favours from a junior in return for promotion or other benefits or threatens to sack for non-cooperation. It is also sexual harassment for a boss to make intrusive inquiries into the private lives of employees, or persistently ask them out. It is sexual harassment for a group of workers to joke and snigger amongst themselves about sexual conduct in an attempt to humiliate or embarrass another person.
Quid pro quo and hostile work environment are the two broad types of sexual harassment. Sexual harassment at workplace is generally classified into two distinct types. ‘Quid pro quo’, means seeking sexual favours or advances in exchange for work benefits and it occurs when consent to sexually explicit behaviour or speech is made a condition for employment or refusal to comply with a ‘request’ is met with retaliatory action such as dismissal, demotion, difficult work conditions. ‘Hostile working environment’ is more pervasive form of sexual harassment involving work conditions or behaviour that make the work environment ‘hostile’ for the woman to be in. Certain sexist remarks, display of pornography or sexist/obscene graffiti, physical contact/brushing against female employees are some examples of hostile work environment, which are not made conditions for employment.
The Vishakha case: Guidelines regarding sexual harassment of women at work
Bhanwari Devi, an employee of a development program run by the state government of Rajasthan, fighting against child and multiple marriages in villages, tried to stop child marriage of Ramkaran Gujjar’s infant daughter who was less than one year old. The marriage took place nevertheless, and Bhanwari earned the ire of the Gujjar family. Gujjar family got infuriated by her interference, and on September, 1992, five men including Ramkaran Gujjar, gang raped Bhanwari. Unable to get justice, women groups had filed a petition in the supreme court of India, under the name of, ‘Vishakha’, asking the court to give certain directions regarding the sexual harassment that women face at the workplace.
This was the case, which bought sexual harassment at workplace into public glare. The petitioners wanted assistance in suitable methods for realization of the true concept of gender equality and to prevent sexual harassment of working women in all workplaces through judicial process and to fill the vacuum in existing legislation. The Supreme Court held that, each incidence of sexual harassment of women at workplace results in violation of the fundamental rights, gender equality and the “right to life and liberty.” It was a clear violation of the articles 1, 15 and 21 of the constitution. Gender equality includes protection from sexual harassment and right to work with dignity, which is universally, recognized Human Right. The Supreme Court took assistance from the then solicitor general of India to formulate certain guidelines and norms to help working women against sexual harassment. These guidelines were formulated since the then civil and penal laws in India did not adequately provide for specific protection of women from sexual harassment in workplace and that enactment of such legislation would take considerable time.
Today its 10 years of the Supreme Court having given these guidelines but has there been an implementation to these? One of the major drawbacks being, that such laws and guidelines find their places only in law books and few journals. The common masses don™t get to know about such judgments. The NCW study shows that 60% of working woman is still not aware of this. In number of cases it was found that the women who made complaints had to meet with an enquiry about their own conduct and no enquiry was made against the person against whom the complaint was made. Lodging complaints often results in isolation of the women, both by employer and by the colleagues. It results in increase and sometimes more violent harassment. In a sexual harassment case the response of the employer institution is of great resistance. The institution gangs up against the women who complaints and then shield the person against whom the complaint has been reported. There is always a hesitation to initiate action against him. Worst of all, the victim is usually pressured to take the complaint back, through threat. Witnesses also tend to show their back since they are threatened to remain quite.
The main feature of both the guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act) is the placing of the responsibility of the prevention and redressal of sexual harassment on the employer/institution. Preventive steps, including the formulation of a policy prohibiting sexual harassment, the publication and circulation of the policy and the spreading of awareness, are to be taken by the employer. The employer is to establish a complaints committee to hear cases of sexual harassment. The complaints committee is to be adequately represented and headed by a woman. It has the power to recommend disciplinary action against the perpetrator and/or the payment of compensation to the complainant, both of which are to be enforced by the employer. The Vishaka guidelines and the Act attempt to safeguard the complainant from possible threats to her employment conditions by prohibiting any discrimination against her during the period of the trial. It also allows for the transfer of the complainant or the perpetrator during the period of the trial, at the request of the complainant.
One limitation of the Vishaka guidelines and the Act is that they are applicable only to an organized office set-up and not to the unorganized sector where the employer-employee relationship is not fixed. The Act tries to amend this by making specific provision for the inclusion of the unorganized sector, through the setting up of a local complaints committee which is to act as a redressal mechanism outside of the institution. This local committee is to look into complaints in places where the workplace has no internal complaints committee, in any unorganized sector, or in cases where the allegation of sexual harassment is against the employer. An inadequacy of the sexual harassment Act is the failure to provide for any initiatives arising from the workers, which has been addressed by the Vishaka guidelines through the provision of ˜workers™ initiatives™. It gives employees the right to raise issues of sexual harassment at workers meetings, employer-employee meetings and in other appropriate forum.
At the very outset, it may be noted that the current legal position of sexual harassment after the framing of the Vishaka guidelines does not include any workers outside of an office setting. Thus, 90% of women in India, employed in the unorganized sector are outside the purview of the guidelines. Nevertheless, it is important to think about sexual harassment from the perspective of women in the unorganized sector because the Act on sexual harassment at the workplace affects them as well. Equally, it can be an effective tool to push the boundaries on the subject of sexual harassment and ask significant conceptual questions. In the case of a single employer and employee, this onus has no meaning whatsoever, making the entire provision irrelevant. In the Act though, this has been addressed to some extent, as a local committee will address issues relating to sexual harassment in the unorganized sector. However, this merely shifts the onus from the employer to the state. Workers still remain outside the purview.
The lack of formal systems in the unorganized sector highlights yet another limitation of the Vishaka guidelines relating to the absence of labour safeguards. Complaining about sexual harassment is a serious step for any working woman, as it invariably increases the chances of discrimination or termination of work during or after the trial. This is heightened in the case of women in the unorganized sector due to the informal nature of their employment. Also while labour laws provide safeguards which protect an employee from termination or any other discrimination during the course of any dispute, these safeguards do not extend to cases of disputes relating to sexual harassment. Safeguards against discrimination after the dispute is adjudged are in general inadequate and abysmal with regard to cases involving sexual harassment. For women in the unorganized sector, this lack of safeguards regarding sexual harassment further adds to their already fragile position as workers. Yet another aspect that often comes into play is the supposed neutrality of the guidelines and thus the redressal board which do not take into consideration various sets of hierarchies within the workspace, be they of rank or post or other social hierarchies relating to caste or class at the workspace. The Vishaka judgment makes no distinction in trial procedure or execution based on rank of the complainant and defender. The legal language around sexual harassment takes into account only differences based on gender and not any other.
The implications of caste and/or class in the organized and unorganized sectors are different. It is important, however, to keep in mind that the unorganized sector also encompasses certain professions that are deeply ingrained in the caste background of the workers. Manual scavenging is one such example. A simplistic definition of sexual harassment, which does not accommodate related discrimination based on caste/class, formulated by the law, and espoused by activists and other stakeholders, curbs precisely this layered understanding which might have otherwise led to more comprehensive legal interventions.
Finally, the sexual harassment law, like all other laws addressing women™s issues, creates specific definitions of categories like ˜sexual harassment™, the ˜harassed™ and the ˜harasser™. These categories imbibe within them certain values signatory of law around women. The most important of them is viewing of the woman worker as a victim. This leaves only one way that she may experience harassment and react to it. The board then becomes the embodiment of this hegemonic understanding. By virtue of having been made a victim alone, the woman has as always to prove her victimhood beyond doubt to get justice. This image of ˜victimhood™ may be tarnished by any signs of agency. Conceptually then, this becomes problematic as establishing norms of victimhood are a prerequisite for ˜justice™. Women in the unorganized sector, given the lack of formal institutions to protect them despite the lived reality of dealing with various issues, including sexual harassment, individually and on a daily basis, are forced to curb and hide their agency in order to present themselves before these boards as ˜victims™ of sexual harassment.
It can be said that the battle his half won. A recent CII survey suggests that popular private companies like Infosys Technologies, TATA Consultancy Services, Coco-Cola, Walchand Capital and Technologies have already put place a policy of prevention of sexual harassment. Even the government has swung itself in action with the Act. But the present Act is also not perfect. The most important point is that the preventive aspect is not highlighted in the bill, as it was in the Vishakha judgment, since all workplaces must take responsibility for generating awareness about sexual harassment and making the workplaces must take responsibility for generating awareness about sexual harassment and making the workplaces safe for women.
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[1] Authored by Aakriti Shakdher
Tags: Bhanwari, Bhanwari Devi, India, Rajasthan, Sexual harassment, Supreme Court, Supreme Court of India, Supreme Court of the United States
