Sexual Harassment of Women at Workplace – Overview

January 13th, 20189:04 pm @    

Women and ‘particularly vulnerable’ groups like children and indigenous people, have been given special recognition to their rights and freedom by the Constitution of India and International instruments of United Nations. Women have been victims of diverse forms of atrocities and crimes, which are acts of gender specific violence, viz., rape, trafficking, sexual abuse, stalking, female feticide, prostitution, domestic violence etc. In addition to these iniquities, women are also subjected to sexual harassment at workplace.

Meaning of Sexual Harassment at Workplace

Sexual harassment at workplace, which means unwelcome behavior having sexual overtones not only makes the involvement of a woman unsafe at the workplace but it also affects her right to work with dignity. Unwelcome conduct, which could be physical, verbal or non-verbal of a sexual nature, affects the working conditions creating a hostile working environment and also impacts the victims job performance and self worth subjecting her to being publicly sexualized and objectified. Sexual harassment at workplace may exist in milder and subtle forms like verbal innuendo, inappropriate affectionate gestures or making sexually colored remarks. But it may also assume a blatant and ugly form like leering, physical grabbing and sexual assault or sexual molestation.

Law on Sexual Harassment

Prior to Vishaka guidelines issued by the Supreme Court a woman who wanted to report an incident of sexual harassment at workplace could do so under Section 354 or 509 of the Indian Penal Code, 1860. These two sections penalized those who were found guilty of assaulting or using criminal force to a woman to outrage her modesty or use words, gestures or acts that intended to insult her modesty. In both these cases the interpretation of the term ‘outraging the modesty of a woman’ was left to the police officers. What amounts to outraging a woman’s modesty is not defined anywhere. The essence of a woman’s modesty is her sex and it is an attribute associated with female human beings as a class.

Vishaka Guidelines

The Supreme Court in Vishaka v State of Rajasthan, in the absence of an appropriate legislation felt an urgent need to put in place an effective mechanism to deal with the compelling social need and secure women’s basic human rights. Gender equality, which includes protection from sexual harassment and the right to live with dignity, are internationally recognized human rights by international conventions and instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW). The convention defines ‘discrimination against women’ as “any distinction, exclusion or restriction made on the basis of sex which has the effect of nullifying or impairing the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”

Sexual harassment at work Image credit: HT

Thus, the Supreme Court identified, sexual harassment of women at workplace as a violation of their fundamental right to equality under Article 14 & 15 of the Constitution and the Right to life, which includes the right to live and work with dignity under Article 21 of the Constitution. A logical consequence of such an incident is also violation of Article 19(1)(g) which prescribes the freedom to practice any profession and carry on any trade, occupation or business, which includes the availability of a safe working environment. Equality in employment can be seriously hampered by acts of gender specific violence like sexual harassment of women at workplace. Therefore, to provide an effective enforcement of the basic human right of gender equality and to guarantee the right to work and live with dignity the Supreme Court laid down certain guidelines, which were to be followed by all workplace and institutions. These guidelines were applicable to all women including students, women working part time or full time, on contract or in voluntary capacity.

Legislation on Sexual Harassment

The legislature on 23rd April 2013 finally brought in to force a legislation dealing with the protection of women from sexual harassment at workplace and enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act widened the scope of Vishaka Guidelines and aimed to protect all working women from sexual harassment at their place of work. The Act provides a remedy in civil law to women, in addition to other laws in force. If a woman wants to report an incident of sexual harassment at workplace she can take recourse to either civil or criminal proceedings.

The Act enables a settlement between the parties through conciliation at the instance of the aggrieved, by the Internal or Local Complaints Committee. The Act also imposes certain obligations on an employer to provide for a safe working environment, display conspicuously at the workplace the penal consequences of sexual harassment and conduct workshops and awareness programmes to sensitize the employees and orientation programs for members of the committee and include sexual harassment as misconduct in the service rulebook. Moreover, sexual harassment is a subjective experience, which must be, analyzed from the complainant’s perspective.

The Act is a beneficial piece of legislation that has aimed to secure women’s right of workplace equality by complying with three elements i.e., protection, prohibition and redressal. Sexual harassment at workplace not only impacts women by injuring their right to equality but it has a direct bearing on the workplace productivity. Discrimination of any form is an obstacle in the development and advancement of women with men at a national and international level. It is imperative that all workplaces give effect to the provisions of the act in substance, form and in spirit so as to enable women to work with dignity, decency and due respect and bring about gender parity in the sphere of employment.

Article by

Anasuya is pursuing LL.M from Faculty of Law, Delhi University and intends to enter academics. Writing is something that she has always cherished and a medium through which she believes that one can communicate and reach out, especially in law which is such a complex, dynamic and multifaceted subject.

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