Defining sexual harassment is an act aimed towards gender based discrimination that affects women’s right to life and livelihood it is a form of gender based violence which not only violates their esteem, self-respect and dignity but also takes away their basic human rights as guaranteed by the constitution. It cannot be termed as a new phenomenon as it always remained behind the curtains but certainly, the pace of changing workplace equations have brought this reality concealed behind the curtains onto the stage. Sexual harassment in workplace is a serious irritating factor that renders women’s involvement in works unsafe and affects right to work with dignity. In the present scenario sexual harassment at the workplace has become ubiquitous and has become a major concern both in the international and national sphere. Due to the silence surrounding the issue it is not often discussed and hence providing a lacuna to the perpetrators to escape. Be it organized, unorganized, public or private, service, no sectors remain untouched by this problem. Sexual harassment has a major negative effect on the job environment of an individual.
Sexual Harassment is one of the topic which has received minimal attention in our society as the silence surrounding the issue is much more audible than the faint echo of the victim. The awareness on this issue is very minimal and such ignorance is no longer bliss. The most effective step to deal with the problem is to talk about it.
If we further look into the matter it becomes quite clear that from being a ‘mere’ social issue, Sexual Harassment at workplace has metamorphosed into a social malaise. According to data compiled by Equal Rights Advocates, a women’s law center in the U.S., 90 to 95% of sexually harassed women suffer from some debilitating stress reaction, including anxiety, depression, headaches, sleep disorders, weight loss or gain, nausea, lowered self-esteem and sexual dysfunction. The U.S. Equal Employment Opportunities Commission (EEOC) states, ”the victim does not have to be the person harassed but could be anyone affected by the offensive conduct.” Likewise, there is no “typical harassed woman.” Women of all ages, backgrounds, races and experience and in every work environment experience sexual harassment.
A recent survey by Oxfam India, found that 17% of working women have experienced Sexual Harassment at some point in their workplace.Another survey, conducted in 23 countries suggest that around 15-30% of working women had been subjected to sexual harassment varied from explicit demand for sexual intercourse to offensive remarks.The latest data on sexual harassment complaints made to the National Commission for Women (NCW) show a 45% rise in such cases in 2013, with the capital (Delhi) registering the highest number of incidents, followed closely by neighboring Uttar Pradesh. Furthermore, a report suggests that in India a woman is sexually harassed every 12 minutes.
As more and more women join the workforce in India, sexual harassment at work has become a growing problem. A 2010 survey of 600 female employees in India’s information technology and outsourcing industry found that 88% of them had faced some form of sexual harassment at work. In most cases, the perpetrator was a superior at work, according to the survey conducted by the Centre for Transforming India, a Delhi-based non-governmental organization.
Types of Sexual Harassment:
The US Supreme Court has expressed that a claim for sexual harassment may fall in either of the two categories:
(1) Quid pro quo and
(2) Hostile work environment
Quid Pro Quo:
Quid pro quo is Latin fir “this for that” or “something for something” and refers to an exchange. It refers to a situation where an employer or superior at work makes tangible job-related consequences such as promises of Hiring, promotions, salary increases, shift or work assignments, and performance expectation conditional upon obtaining sexual favors from an employee. In this case the exchange is between employer and employee, where the employer demands for sexual favors from the employee in exchange of job benefits.
Hostile work environment:
“Whether an environment is ‘hostile’ or ‘abusive’ can only be determined by looking into the totality of the circumstance. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
The US Supreme Court held that a hostile work environment is one in which an unwelcome response to the demand for sexual favours (by the employer) creates an abusive working environment for some employee.
Quid pro quo and hostile work environment, though two different forms of sexual harassment, do not occur in isolation, one can be a reason of the other. Moreover, it is not possible to devise a formula to distinguish between the two as most of the time the features and ingredients of the two overlap each other.
Sexual Harassment at Workplace under Indian Framework:
Definitely, 2013 has been a new era for working women and has witnessed some of the major changes in the history of legislative procedures with the enactment of the ‘Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013’. What women have not been able to express so far, has been brought out, well defined, well protected and entered into the statute book this year. Moreover, usual restriction to the State of Jammu & Kashmir has also been removed hence enforcing the provisions to the whole territory of India including Jammu & Kashmir.
In India, there was no statutory definition of Sexual Harassment till 1997, woman experiencing sexual harassment at workplace had to lodge a complaint under section 354 which states, whoever assaults or uses criminal force to any woman, intending to outrage the modesty of any woman shall be punished with imprisonment and fine, and section 509,that punishes an individual for using a word, gesture or act intended to insult the modesty of a woman.
Vishaka Guidelines: Road to Women Empowerment
The Hon’ble Supreme Court in Vishaka v. State of Rajasthan recognized it as a recurring phenomenon and for the first time acknowledge and explicitly defined the word Sexual Harassment as: – Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is intended to outrage the modesty of a woman directly or indirectly. The pronouncement made by the Supreme Court was laudable as it aimed to fill the existing void due to absence of a proper definition.
By defining sexual harassment as an act directed to outrage women’s modesty and also an act that devoid women of her right to life and livelihood, The Supreme Court developed broad based guidelines for employers. The aim of the Supreme Court behind formulating these guidelines was to ensure a fair, secure and comfortable work environment and is directed towards the prevention of Sexual Harassment.
The Vishaka guidelines apply to all the women whether student or working part time or full time whether on a contractual basis or voluntarily. These guidelines expressly prohibit Sexual Harassment at workplace and put a lot of pressure on preventive and curative measures. The onus to provide a harassment free work environment has been laid down on the employers who are required to take the following steps to curb sexual harassment within the ambit of workplace:
- Sexual Harassment must be clearly defined at the work place and it is the duty of the employer to notify, publish and circulate it either through posters, meetings or through in house communication.
- Employers must form a Complaints Committee and it should be headed by a woman and not less than half of its members should be women. Further, to prevent any undue influence the committee should involve a third independent party.
- Prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 to be included by private employers.
- If the conduct complained of attracts any section defined in Indian Penal Code or under any other law, the employer must take appropriate action by making a complaint with the appropriate authority.
- Employees should be allowed to raise issues of sexual harassment and it should be affirmatively discussed in Employer-Employee meetings.
- The employer should take all necessary and reasonable steps to assist a person who is a victim of sexual harassment that occurred as result of an act or omission by any third party.
The Vishaka guidelines paved a path to a more comprehensive piece of legislation to curb sexual harassment which finally saw the light of the day in 2013. The legislature proposed The SHW bill to deal with the protection of women at workplace which was passed by the lower house of the Parliament on 3rd September, 2012 and by the upper house of the Parliament on 26th February, 2013. Eventually, the bill received the Presidents’ assent on 22nd April, 2013* and was finally notified in the Gazette of India on 23rd April, 2013.
*Date of Enforcement of the ACT 9th December 2013.
An Analysis of The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013
The act is objective, precise and comprehensive piece of legislation. It is divided into VIII Chapters that comprises of a total of 30 Sections. A detailed analysis of the Act is done hereunder so as to understand the rubric of the act.
The preamble to the Act explains its purpose as ‘An Act 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 Sexual Harassment Act has been enacted with the objective of providing women protection against sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment.
The definition section is one of the most important provisions of the enactment. Section 2 of the act defines some important terms used in the Act e.g. Sexual Harassment, workplace, aggrieved woman, employer etc.Some of them are discussed below.
Sexual Harassment (Section 2(n)):- The definition of sexual harassment in the Sexual Harassment Act is in line with the Supreme Court’s definition in the Vishaka Judgment and includes ‘any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely –(i)Physical contact and advances; or(ii) A demand or request for sexual favors; or(iii)Making sexually coloured remarks; or(iv)Showing pornography; or(v)Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Workplace(Section2(o)):- Act workplace (Sec.2(o)) includes:(i)Any department of the government (ii) All private organisations (iii) Hospitals and nursing homes and (iv) Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey
The definition of an ‘aggrieved woman’ (Section 2(a)) 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.’
As per section 2(g), an Employer is: – (i) the head or any person responsible for the management, supervision and control of the workplace (ii) the head or any person responsible for the management, supervision and control of the workplace (iii) the person discharging contractual obligations with respect to his or her employee (iv) In case of a household, the person who employs and is benefitted by such employment.
Complaint mechanisms under the 2013 Act:
Chapter II (Section 4) and Chapter III (Section 5 & 6) of the Act deals with the constitution of Internal Complaints Committee (ICC) (Sec. 4) at the work place and Local Complaints Committee (LCC) at district and block levels (Sec. 6). A District Officer (District Collector or Deputy Collector) shall be responsible for facilitating and monitoring the activities under the Act.
As per the Act, employers are mandated to set up an internal complaints committee (ICC) at each office or branch where there are at least 10 employees. Sec. 4(2) states that the ICC is required to consist of at least four members, and its presiding officer is required to be a woman employed at a senior level. Provisions have been made in case no senior woman employee is available, to nominate a woman presiding officer from another office, administrative unit, workplace, or organisation. Further, one half of the members must be women. LCCs (Section 6) are to be set up by the appropriate government which shall receive complaints in respect of establishments that do not have ICCs on account of having fewer than 10 employees and to receive complaints from domestic workers. Both the ICC and LCC are required to follow process and inquire into the complaints in time bound manner.
Section 9 of the Act deals with the mechanism of filing a complaint of Sexual Harassment which can be summarized as under:
- Any aggrieved woman or her legal heir, in case of her physical or mental capacity or death otherwise or such other person as may be prescribed
- The complaint should be in writing
- It should be made to the ICC or LCC whatever applicable
- The complaint should be filed within three months from the date of last incident
- The said period may be extended to 3 more months by the ICC or LCC if circumstances, upon the committee’s satisfaction existed so as to prevent the woman from filing a complaint within the same period
- The committee shall record the reason for extending the period in writing
Section 10 further provides for Conciliation, before initiating an inquiry, the ICC or LCC may, at the request of the aggrieved woman, take steps to arrive at a settlement between the parties. However, no monetary settlement can be made as the basis of such conciliation (Sec. 10(1)).
If a conciliation agreement fails or a settlement is violated or no request from complainant for conciliation exists, the committee should then proceed with an inquiry as provided under section 11 of the Act.
If the committee, during the inquiry, finds that there is a prima facie evidence of serious criminal nature, the complaint will have to be passed on to the police within seven days. The police should take further action on the complaint treating it as an allegation on ‘outraging the modesty of woman’ under Indian Penal Code (IPC) Section 509. The offence under IPC 509 is a cognizable, bailable and compoundable (a private nature offence) one. The court, when settling the case, can award a payment to the aggrieved on account of emotional distress, mental trauma or pain, as well. Sub Section (3) of Section 11 provides that for the purpose of making an inquiry under section this section, the ICC or LCC shall have the same powers as vested in a civil court under CPC. The ICC or LCC’s inquiry into the allegation of sexual harassment should be concluded within 90 days (sub-section (4) of section 11).
Chapter V of the Act comprise of sections 12-18. Section 12 provides that During the inquiry the ICC or LCC has authority to recommend to the employer to transfer either the complainant or respondent to any other workplace or to grant leave of absence to the aggrieved woman as rules stipulate so as to avoid face to face contact and this leave shall be in addition to the leave she would be otherwise entitled. The employer is bound to implement the recommendation and send the report of such implementation to the ICC/LCC.
Section 13 further provides for the inquiry report. As per the section, the committee shall provide a report of its findings with recommendations to the employer or the District Officer within a period of ten days. If the complaint is genuine, the report should suggest disciplinary actions commensurate with the nature of sexual harassment. : (i) take action for sexual harassment as a misconduct in accordance with the provisions of the applicable service rules or where no service rules exist, in accordance with rules framed under the Act; (ii) to deduct from the salary or wages of the respondent such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs, as determined by it, in accordance with the provisions of section 15.
Section 14 of the Act deals with punishment for false or malicious complaint and false evidence. If the ICC/LCC concludes that ‘the allegation against the respondent is malicious or the aggrieved woman or any other person making the complaint has produced any forged or misleading document’ it may recommend that the employer take action against the aggrieved woman.
The provision for appeal for the aggrieved person by any recommendation made under any of the above provisions finds place in section 18 of the act. This must be in accordance with the provisions of the service rules applicable to the said person or where no such rules exists, in such a manner as may be prescribed.
Section 19, contained under Chapter VI provides for the duties of the employer. Employer should provide assistance to the woman if she decides to file a police complaint under IPC or any other law for the time being in force against the perpetrator. In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter alia, which includes:
- provide 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 a misconduct under the service rules and initiate action for misconduct.
- The employer is also required to monitor the timely submission of reports by the ICC.
Section 26 provides for the penalty clause and prescribes punishment for the employer or the district officer in case of their failure to constitute the committee. This section states that if an employer fails to constitute an Internal Complaints Committee or does not comply with any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty of up to INR 50,000 (approx. US$1,000). A repetition of the same offence could result in the punishment being doubled and / or de-registration of the entity or revocation of any statutory business licenses.
Sexual Harassment at Workplace is a much awaited development and a significant step towards ensuring women’s safety. The Act, though firmly advocates and defends the rights of working women has certain loopholes in it providing a way to the offenders to escape the liabilities by circumventing the law. Some of the flaws are discussed below:-
- The Act exclusively seeks to safeguard the rights and privileges of women employee. It is specifically drafted to redress the grievances made by a female employee and hence is not gender neutral which in a way defeats the concept of gender justice. Male employee, if subjected to sexual harassment, cannot claim relief and protection under this act.
- Section 4(1) of the Act states that every employer shall constitue an Internal complaint committee at “all administrative units and offices” which differed from the provision of the bill drafted by NCW in 2010. The bill proposed if administrative units are located at different places, the employer shall constitute a complaint committee at all administrative offices and units “as far as possible”. Furthermore, constituting complaints committee at all administrative offices and units require the employer to spend more time and effort in training members of the ICC who are to be replaced after every three years.
- Section 4(2) talks about the presiding officer of the ICC who shall be a woman employed at a senior level. This also lacks the clarity as to who shall be the presiding officer in the absence of a senior level woman employee in the organization.
- Section 4(2)(c)states that each Internal Committee requires membership from an NGO or association committed to the cause of women. This implies that every unit in the country with 10 or more employees needs to have one such person in the Committee. As per the Economic Census 2005, there are at least six lakh establishments that employ 10 or more persons. There is no public data on the number of NGO personnel ‘committed to the cause of women’. There could be difficulties in implementation if sufficient number of such NGO personnel is not available.
- Section 14 deals with the punishment for malicious or false complaint. Activists refer the section as too bureaucratic and may have a deterrent effect on the victim itself. Women with genuine grievances may keep quiet, fearing that they may not be able to gather enough evidence to prove her case.
- Sexual Harassment Act (Section 13(3) (ii)) states that if allegations against the respondent have been proved, the ICC or LCC may recommend to the employer to deduct from the offender’s salary such sum as it may consider appropriate. The provision totally dilutes the responsibility of the employer against sexual harassment. As the fine has to be deducted from the offender’s salary, it doesn’t give companies much incentive to take active steps to create a harassment-free environment at work.
- The Act states that no court shall take cognizance of any offence and every offence under this act is non-cognizable in nature (police can’t arrest any person without court warrant), but the recent allegations of sexual harassment against SC judge Ganguly challenge the righteousness of this clause.
Sexual Harassment at Workplace: International Scenario
The discrimination against women in the form of Sexual Harassment has been rampant all through the ages and has always been a matter of concern for the nation around the world. Much of the impetus for the statute law and judicial decisions that prohibit or constrain sex discrimination and sexual harassment stems from the recognition of the equality of the sexes in various international instruments and conventions. The Charter of the United Nations, The Universal Declaration of Human Rights, the European Convention on Human Rights and the International Covenant on Civil and Political Rights, all contain statements of a principle against discrimination on the basis of sex.
International Covenant on Economic, Social and Cultural Rights (1966)
The International Covenant on Economic, Social, and Cultural Rights(ICESCR) obligates state parties “to ensure the equal rights of men and women to the enjoyment of all economic, social, and cultural rights set forth in the…..covenant”It recognizes “the right to the enjoyment of just and favourable conditions of work, which includes the right of everyone to the opportunity to gain his living by work which he or she freely chooses or accepts” and requires state parties to “take proper steps to safeguard this right”
Convention on the Elimination.of All Forms of Discrimination Against Women (CEDAW)
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) more popularly known as the Women’s Convention is the international women’s rights treaty that spells out women’s rights and obliges governments to ensure respect for these rights. CEDAW provides the framework for advocating for women’s human rights. UN adopted CEDAW on December 18, 1979, which came into force on September 3, 1981. India signed the convention on 3rd July 1980 and ratified it on June 25, 1993. The convention provides specific International standards in relation to Sexual Harassment at the workplace.
Under Article 2(e), the CEDAW Convention imposes an obligation on states to “take all appropriate measures to eliminate discrimination against women by any person, organization or enterprises.” In 1992, the CEDAW committee formulated and adopted General Recommendation No. 19, which expressly recognizes Sexual Harassment as a form of violence against women. This defines Sexual Harassment as “unwelcome sexually determined behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demands whether by words or actions.” It further elaborates that it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.
Furthermore, Article 15 of the convention affirms the general principle that states “shall accord to women equality with men before the law”. This means that not only does a state have an obligation to protect women against violation of sexual harassment but also provide adequate recourse in the event that this right is violated.
The International Labor Organization (ILO) is a specialized United Nations agency that has addressed sexual harassment as a prohibited form of sex discrimination under the Discrimination (Employment and Occupation) Convention (No. C111). The ILO has made clear that sexual harassment is more than a problem of safety and health, and unacceptable working conditions, but is also a form of violence (primarily against women).
Steps Taken by Various Countries to Combat Sexual Harassment at Workplace
Position in U.S.A.
The EEOC, the agency of the federal government defines Sexual Harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
Furthermore, The American Federation of States, Country and Municipal Employees (AFSCME) has produced a guide which provides general information about Sexual Harassment and the law, as well as what victims and union can do.
In 1996, the Organization of American States adopted the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belem Do Para). The provisions of the convention are similar to those found in General Recommendation No. 19 of CEDAW which prohibits both quid pro quo and hostile environment harassment.
Position in Canada
In Canada, all labor issues are within the jurisdiction of the provinces, and each territory or province administers its own human rights law. All Canadian human rights acts at the provincial level prohibit discrimination in employment on the basis of sex. The Canadian Human Rights Act does not precisely define sexual harassment, but the Canadian Labor Code defines it explicitly as “any conduct, comment, gesture or contact of a sexual nature that (a) is likely to cause offence or humiliation to any employee; and (b) that might, on reasonable grounds, be perceived by that employee as placing a condition of a sexual nature on employment or on an opportunity for training or promotion.”
Despite both national and international efforts to eliminate sexual harassment, there is no single definition of what constitutes prohibited behavior. At the International level, the CEDAW defines sexual harassment as including “such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions.” The harassers, for all forms of harassment, usually are managers or supervisors. Hence, it can be inferred that those who exercise some sense of control over the victim are more likely to take direct advantage of it by harassing in a more intimate way by taking undue advantage of the workplace relationship.
In India, there was no statutory law for sexual harassment till 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 and 509 of the Indian Penal Code.The entire scenario changed in 1997 with the introduction of Vishaka guidelines when Supreme Court for the first time recognized, acknowledged and explicitly defined sexual harassment. The definition was most parimateria with the one proposed by the CEDAW. D Samuel Abraham writes, “This was a grey area, when our parliamentarians in the first instance, failed to understand the mental trauma a woman may have to face at the workplace. It is the Supreme Court which understood the gravity of the situation and bought the offenders to book.“
Following the Vishakha Guidelines, the Legislature drafted “The Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013” which received President’s assent on 22nd April, 2013. The Act stipulates that a woman shall not be subjected to sexual harassment at any workplace, including organized as well unorganized sector. Other important features of the Act include the constitution of ICC or LCC for speedy redressal of the grievances of the victim. Although, the 2013 Act is an important signal to employers that the Indian Government does take gender equality in the workplace seriously, the act still falls short on several fronts that need to be resolved.
HIMANHSU GAUTAM and ROMIL TALWAR
CAMPUS LAW CENTER
UNIVERSITY OF DELHI
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