The term gender discrimination and sexual harassment at workplace was constructed from the view of women. The legal protection to women at workplace has been formulated at the block, district and national level for the organized as well as unorganized sector. The majority of working women are not aware of the legal protection issues. International Conventions and issues related to gender discrimination and sexual harassment at workplace has been discussed along with social work intervention.
A woman is considered as the most important creation of God. There is a saying: “Yatra naryastu pujyante, ramante tatra devata” which means where a woman is worshipped, god lives there. Sexual harassment affects all people in some form or the other. Sexual harassment at work is an extension of violence in everyday life and is discriminatory, exploitative. It is thriving in atmosphere of threat, terror and reprisal. The women are harassed by the society at every level that may be inside family, outside the house, at workplace, etc. Sexual harassment is a complex social problem which involves multiple actors. To deal with this problem is notoriously difficult. Conventional solutions to the problem of sexual harassment like legal protection to victims and stringent punishment to perpetrators while good on paper are of limited practical efficacy, unless coupled with affirmative action. Most sexual crimes against people in India still go unreported. The issue of workplace sexual harassment is a grey area even in western countries which has a potentially large and assimilated workforce in comparison with India. However, unlike western countries where organizations accept workplace harassment in normal parlance, it has always been frowned upon as a non-issue in India. Therefore a robust legal mechanism will go a long way in creating a congenial work environment and will provide for the constitutional mandate of safety and security of all employees in India.
In April 1975 that the phrase sexual harassment was used in the public for the first time by a woman during her testimony before the New York City Human Rights Commission Hearings on Women and Work. She defined it as unwanted sexual advances by male supervisors towards women such as constant leering. The term sexual harassment was coined through a consciousness raising session connected with the Women and Work course at the Cornell University. Significant numbers of women in the world are routinely subject to various kinds of human rights violations; these are not clearly recognized and classified as civil and political crisis including gross violation of humanity. This reflects not just the way society looks at the issue of violence against women but has serious results in terms of the way society treats core issues pertaining lives of women. There is no doubt that gender is important in sexual harassment. Women are the targets of sexual harassment perpetuated most often by men. Male dominance is a crucial factor. Women depicted the cost of enduring sexual harassment as both physical and psychological and outlined a range of responses that included humiliation, degradation, shame, embarrassment, guilt, intimidation, frustration, a sense of hopelessness and emotional breakdown. Disruption to working lives of women, the impact on employment opportunities and restrictions on access to economic benefits were highlighted by her. These difficulties were often compounded by economic vulnerability and the lack of choices offered to women by the labour market. (Mackinnon, 1979) The sexual harassment is a form of unlawful sex discrimination. A spectrum of behavioural patterns may signify sexual harassment. The definition of sexual harassment according to the Supreme’s Court Order in India is:
a) Physical contact and unwelcome sexual advances.
b) Demand or request for sexual favour.
c) Sexually colored remarks.
d) Display of pornography.
e) Physical, verbal or non-verbal conduct of a sexual nature.
Conduct of a Sexual Nature
Non-verbal conduct includes making unwelcome sexual gestures, suggestive or obscene letter, notes or invitations, displaying of sexually provocative objects or pictures/pornography, cartoons or postures, indecent exposure in the workplace.
Verbal conduct means making or using sexually explicit language, derogatory comments, remarks/jokes about women’s bodies, suggestions and hints, graphic comments with sexual overtones, pressure for dates, obscene phone calls, spreading and displaying a nude or image with apparent sexual contents, request for sexual intercourse and making verbal sexual advances or propositions.
Physical conduct relates to touching , brushing against a co-worker, assault, impeding or blocking movements, leaning over, invading a person’s space or physical touch or contact.
The sexual harassment in the workplace refers to an verbal or physical act with a sexual nature, performed in recruitment or in the workplace by a boss, manager, employee, client or customer of a working unit, that is unwelcomed by the person receiving it and has caused the person to feel violated, insulted, and being in an unbearable hostile environment.
International Legal Regulations
The Discrimination (Employment and Occupation) ILO Convention 1958 (No. 111) addressed discrimination in employment on a number of grounds including sex, and required that ILO member States declare and pursue a national policy designed to promote equality of opportunity and treatment with a view to eliminating discrimination. it was stressed that elimination of sexual harassment and violence at workplace was a significant element in promoting decent work for women. The sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Very generally, “sexual harassment” describes unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature. Title VII is a federal law that prohibits discrimination in employment on the basis of sex, race, colour, national origin, and religion, and it applies to employers with 15 or more employees, including federal, state, and local governments. Prior to the 1970s the term sexual harassment at workplace did not exist plus it was identified as a part of daily work life, a problem without any name. The term sexual harassment was construed to look at the world from the point of view of women. It was recognized in 1986 by the US Supreme Court as sex discrimination and international body such as United Nations through the General Recommendation number 19 (1992) of the CEDAW (Committee on the Elimination of Discrimination against Women) which is one of the core international human rights treaties adopted by the UN General Assembly in 1979.
According to the UN Declaration (1993) on the Elimination of Violence against Women - Article one and two defined violence against women as any act of gender-based violence that results in or is likely to result in physical, sexual, or mental harm or suffering to women. It could be threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or in private life. It includes physical, sexual and psychological violence occurring in the family and in the general community, including battering, sexual abuse of children, dowry-related violence, rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women, forced prostitution, and violence perpetrated or condoned by the state.
At the international level though sexual harassment is not the subject of any binding International Convention, the International Labour Organization (ILO) covered it as a form of sex-based discrimination (ILO, 2000). The ILO Committee on Gender Equality (2009) recorded that apart from many other problems that women face at their workplaces, they are also subject to widespread sexual harassment, often excluded from protections and benefits, and face multiple forms of discrimination, such as race and age, among others. The United Nations defines violence against as: ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’ (WHO, 2011). Sexual harassment at workplace was recognized as violation of human rights by the CEDAW. This was the time when awareness of sexual harassment was only beginning to emerge. Though the CEDAW did not mention the term sexual harassment at workplace, in its preamble, the Convention explicitly acknowledged that extensive discrimination against women continued to exist, and emphasizes that such discrimination violates the principles of equality of rights and respect for human dignity.
Article 1 of the CEDAW defined the term discrimination against women as sex as a basis of any distinction, exclusion or restriction which leads to and causes impairing or nullifying the recognition, enjoyment or exercise by women in the political, economic, social, cultural, civil or any other field. Article 11 of the General Recommendation Number 19 recognized that equality in employment was seriously impaired when women were subjected to gender-specific violence, such as sexual harassment in the workplace. It defined sexual harassment as unwanted sexually determined behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demand, whether by words or actions. It confirmed that such conduct was humiliating and could constitute a health and safety problem. It further stated that it was discriminatory and creation of hostile work environment if the work conditions made the woman believe that her resistance to sexual harassment would cause disadvantage to her in connection with her employment, including recruitment or promotion. Under this recommendation the Committee recommended the state parties to the treaty to take all legal and other measures necessary to provide effective legal, preventive and protective measures and provide procedures, remedies and compensation for women facing gender based violence, including whether in public or private sphere.
Legal Protection in India
The sexual harassment in Indian workplace is still in its beginning stages. Many allegations of sexual harassment have cropped up in the very year in which a law to prevent such harassment at the workplace was enacted. This clearly reveals that laws are not enough to stop such abuse, as well as other forms of violence against women. At the same time, the sense of empowerment such laws have afforded women has encouraged many to come out in the open to protest such attacks on their personal integrity.
This Bill drafted by the National Commission for Women in 2005 and subsequently revised in 2007 and then 2010 finally passed in the Lok Sabha in September 2012. It is being lauded for the contents of the Preamble which states that sexual harassment is a violation of women’s fundamental rights. The Bill lays down a uniform procedure for conducting enquiries into complaints of sexual harassment across a very wide range of employers including the Government, armed forces, private organized sector as well as the unorganized sector. It envisages that every workplace, whether organized or unorganized, should have a forum to take up complaints pertaining to sexual harassment. It also defines ‘aggrieved women,’ bringing students, research scholars, patients and women in the “unorganized sector” within the ambit of the sexual harassment law.
The Bill makes a specific provision for the inclusion of the unorganized sector through the setting up of a Local Complaints Committee (LCC) which is to act as a redressal mechanism outside of the workplace. An LCC would be set up whenever it was not possible to set up an Internal Complaints Committee and would be set up by the district officer at the block level. The Court can impose a fine of no less than Rs 10,000 on any workplace which fails to constitute either an internal Complaints Committee or which fails to initiate action within a reasonable time upon a complaint being lodged alleging sexual assault.
The Vishakha directions and subsequent non compliance to them that the National Commission for Women brought out draft Bills on sexual harassment at workplace and placed them in the public for a discussion and feedback. Sixteen years of sustained efforts by the women’s movement resulted in enactment and enforcement of a legislation in December.
The Constitution as fundamental rights with right to equality in Article 14, non-discrimination by the State in Article 15(1), equality of opportunity in Article 16, equal pay for equal work in Article 39(d), special provisions by the State in favour of women and children in Article 15(3), renounces practices derogatory to the dignity of women in Article 51(A) (e), and provisions to be made by the State for securing just and humane conditions of work and for maternity relief in Article 42.
The Supreme Court of India Vishakha ruling (1997) not only firmly grounded the argument that each incident of sexual harassment of women at workplace was a human rights violation. Although the Supreme Court Vishakha guidelines (1997) began a discourse in India on sexual harassment and helped women by reconfirming their right to a safe working environment; studies done by organizations across India and media coverage over the years revealed that employers either chose to ignore the guidelines or not take them seriously. Gender equality includes protection from sexual harassment and the right to work with dignity. Safe working environment is a fundamental right of a working woman. In no way should working woman be discriminated at the workplace against the male employee.
The Vishakha ruling relied profoundly upon CEDAW, quoting relevant provisions from the treaty and from the CEDAW Committee’s General Recommendation number 19.It included a definition of sexual harassment, a list of preventive steps, and a description of complaint proceedings to be strictly observed in all work places for the preservation and enforcement of the right It can be said that discourse on sexual harassment at workplace both in research and practice began largely after the Vishakha guidelines (1997) came into existence. The limited amount of evidence that is available reveals that the Complaint Committees have not been appropriately constituted by employers, they do not meet regularly, and records are not kept. The internal grievance mechanism is vaguely defined in the Guidelines and leaves room for manipulation. Workers in the unorganized sector the bulk of the work force are left out of the purview of the guidelines and are deprived of a formal system of redress for sexual harassment at workplace. 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. In India, cases of sexual harassment at the workplace often go unreported as many victims prefer to keep quiet, rather than face publicity, and maybe humiliation.
Gender justice has been a burning issue in the last decade in India, especially in light of the increase and focus by non-Governmental organizations and related women’s groups dealing with such issues enabling the emergence of an aware and educated civil society. With the emergence of a strong brand of judicial activism by the Supreme Court of India, the rights of women have been given immense importance by the courts. Despite these reforms, more than seventeen years since the Vishakha judgment, change in the workplace is still moving very slowly. The majority of employers still do not have Complaints Committees established. Apart from a few public sector bodies, universities, and some large private companies, Complaints Committees have not been set up on a large scale. Complaints Committees are often hurriedly established when employers receive a complaint of sexual harassment. Even when they are constituted, they remain largely non-functional. There have been a series of recent high-profile cases where allegations of sexual harassment have been made by senior women officers in the government, there was high media coverage, and ultimately the cases were hushed up and closed, and the women who complained of sexual harassment were dismissed from service.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was passed “to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment”. While no comprehensive legal definition is provided in the Act, in general, social-psychological definitions are broader than legal ones, though recent exceptions exist. Studies by various women’s organizations and groups across India done in the nineties and earlier decade showed sexual harassment happening at workplace went unreported due to various reasons. The sexual harassment of women at workplace was rampant but not reported due to fear of stigma, loss of reputation and widespread blaming and disbelief in the complaints. Recent studies reconfirmed that the existence of sexual harassment and gave an overview of its nature and prevalence within the private sector. India had a strong labour movement; trade unions did not take the issue of sexual harassment happening at workplaces seriously. Understanding was emerging only slowly in the region, despite the growing number of women in the paid workforce.
The Constitution provides equal rights and opportunities for women; but in practice the women employees face various problems like lack of safety, sexual harassment from superiors and colleagues. Theoretically, the range of legal redress available for sexual harassment covers constitutional, criminal, and civil law. In practice, however, prior to the Vishaka decision, there was no law preventing sexual harassment at the workplace in India. Sexual harassment was not regulated by any of the labour or employment legislations. To some extent, the criminal law provisions under the Indian Penal Code (IPC) criminalized some forms of sexual harassment with the aim to preserve women’s modesty.
Under the Indian Penal Code:
Section 209 : Obscene acts and songs, to the annoyance of others;
Section 354 : Assault or use of criminal force on a woman with intent to outrage her modesty;
Section 376 : Rape;
Section 509 : Uttering any word or making any gesture intended to insult the modesty of a woman. Penalties range from one to three years imprisonment and/or a fine. The sexual harassment being a crime, employers are obligated to report offences. However, criminal law covers only severe forms of sexual harassment involving rape or physical assault, and requires a high degree of proof.
Courts consider several factors to determine whether an environment is hostile. These include:-
(1) Whether the conduct was verbal, physical, or both,
(2) How frequently it was repeated,
(3) Whether the conduct was hostile or patently offensive,
(4) Whether the alleged harasser was a co-worker or supervisor,
(5) Whether others joined in perpetrating the harassment,
(6) Whether the harassment was directed at more than one individual.
Social Work Intervention
The following intervention that an organization can employ to prevent and deal with sexual harassment: The primary prevention of violence against women through workplace is to deal with the promotion of equal and respectful relationships between men and women, as well as the development of gender equity across organizations. It is important to develop a culture of respect within an organization, and for that mutual respect and intolerance of harassment to be viewed by employees as a choice made by them to improve their working environment. Prevention refers to activities which can be implemented to prevent sexual harassment from occurring. These may include having effective policies and procedures, training programmes and awareness raising campaigns, monitoring, running organizational health checks and identifying potential risk factors.
The training is an effective method to employ at the primary intervention stage and it should meet two main objectives: to raise staff awareness and clarify any misconceptions regarding what constitutes sexual harassment; and to inform managers of their roles and responsibilities when attempting to provide a harassment-free working environment for all employees. The intervention programme should be targeting, for example a change in behaviour, increase in knowledge, and modifying attitudes and values. The training can be used to increase awareness and sensitivity and that it appears to be particularly effective for changing men’s attitudes.
All employees need to be trained to deal competently with bullying and harassment. A strong zero tolerance perspective towards sexual harassment is an important factor and it is essential that this is communicated to, and understood by, all employees. To make the complaints procedure effective, it must be clear and well-communicated. The staff must have confidence that their complaints will be taken seriously and treated confidentially. The staff must feel reassured that they will not be victimized. There are two main issues to consider at this stage: rehabilitation of those involved in the investigation and how to prevent a backlash. The complainant is the main focus and rehabilitative procedures should be implemented in order to ensure that their working life is returned to normal as quickly as possible, if necessary, offering psychological support or counseling as needed.
As soon as one experience discrimination, make note of it. Write down dates, places, people, times, possible witnesses to what happened. If possible, ask the co-workers or colleagues to write down they saw or heard, especially if the same thing is happening to them. Remember that others may this written record at some point. It is a good idea to keep the record at home or in some other safe Do not keep the record at work. Review personnel manual and speak to human resources officer to find out if employer has any written policies or procedures for complaining about discrimination. When someone reports the discrimination to employer, do it in writing. Describe the problem and how someone wants it resolved. This creates a written record of when complained and what happened in response to it. If there is union in organization, the victim should file a formal complain through the union. The unions may also play a role in prevention by conducting awareness-raising campaigns, training for union members, and distributing materials promoting a non-violent and sexually harassment free workplace culture. Most laws that prohibit sex discrimination do not allow to go straight to court; one should have to file a formal discrimination charge with file a lawsuit in court.
Don’t blame yourself.
Say “No” clearly and firmly.
Find a way to speak out.
Document every incident in detail and keep all evidence. Make full use of Committee on complain and file a lawsuit. All employers or persons in charge of work place 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 work place 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 employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
The complaint mechanism should be adequate to provide, where necessary, a Complaints Committee, a special counselor 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 member should be women. To prevent the possibility of any under pressure or influence from senior levels, such complaints committee should involve a third party, either NGO or retired judge who is familiar with the issue of sexual harassment. All working places should have the CCTV Camera. Hotline services may be provided to sexually harassment person. There is no perfect law, perfect policy or perfect procedure which can combat sexual harassment on its own. This is because of the numerous linkages and connections between the antecedents, concomitants and consequences of workplace sexual harassment. In an ideal system, a high proportion of complainants would feel satisfied, most respondents would feel fairly treated, and most complaint handlers would feel they acted fairly. In actuality, the complainant’s pain is often long lasting. Any steps that can be taken after harassment has occurred may lead to feelings of more injury.
Prof. Manjumohan Mukherjee
Department of Social Work
Visva-Bharati University, Sriniketan-731236, Birbhum (West Bengal)