Sexual harassment is an assault of a woman’s dignity and an affront to her modesty. It is a violation of her human rights.
Harassment is behavior, which has the effect of humiliating, intimidating, or coercing someone through personal attack. It is also behavior that can cause the recipient to be embarrassed, uncomfortable and cause emotional distress. Sexual harassment would follow the same definition as the above, except that the harassment must be sexual in nature. Further defined it is the unwelcome sexual advances, requests for sexual favors and other verbal behavior or physical conduct of a sexual nature. In addition when the submission to such conduct is made an implicit condition of an individual’s employment, then it is sexual harassment within the workplace. Sexual harassment is considered as a violation of human rights as it is a form of sex discrimination. Sex discrimination is when terms and conditions of employment are not equal because of the person’s sex.
There are basically three forms or types of sexual harassment that are recognised the world over.
(1). quid pro quo which mean ‘this for that’ and when employment decisions or expectations are based on an employee’s willingness to grant or deny sexual favors.
(2). is hostile environment where verbal or non-verbal behavior in the workplace focuses on the sexuality of another person or occurs because of a person’s gender or other protected characteristic; where such verbal or non-verbal behavior in the workplace is unwanted or unwelcome; and where verbal or non-verbal behavior is severe or pervasive enough to affect the person’s work environment.
(3). is the violation of human rights.
Sexual harassment at the workplace, as an issue, captured the collective consciousness of working women, following the Shehnaz Mudbhatkal case. This gutsy woman worked as a hostess for Saudi Arabian airlines. Her services with Saudi Arabian airlines were terminated because she refused to surrender to the sexual demands made by her superior. But Shehnaz would not give in. Filing suit, she fought for 11 years. In 1997, she was awarded full wages and continuity of services with effect from 1985. Sadly, the airlines appealed to Bombay High Court, which granted a stay.
The most well-known instance of a sexually harassed woman taking the help of the law to teach the harasser a lesson is that of Rupan Deol Bajaj. Bajaj was slapped on the bottom by the then DGP of Punjab, K P S Gill. Accusing him of indecent behavior, Bajaj fought an 8-year legal battle. The hard work paid off. Gill was convicted and sentenced to three months RI.
Other Well-known cases include the Vishaka Case and the Bhanwari Devi case which have been landmark cases and have left an indelible impression on the law.
Role of Employer:
As per the Supreme Court Guidelines, it is mandatory that an organization set up a Committee to deal with cases on sexual harassment. It is also the responsibility of the organization to ensure that an environment is created within the organization, which shows a strong commitment of the organization towards a ‘zero tolerance to sexual harassment’. The employer is responsible for creating appropriate working conditions for health, work, leisure and hygiene. When the victim complains to the employer, the onus is on the employer to make appropriate investigations. If the employer does not pay heed to the complaint, he can be held responsible. The employer must set up a complaint mechanism in each department of the company. The Supreme Court’s guidelines are binding on Central and State governments and the private and public sector. If the employer does not comply, he has to face a writ petition for contempt of court.
A great deal of cynicism exists regarding police action. Women said that even when they have gone ahead to complain to the police nothing has been done about it.
Need for a policy on Sexual Harassment:
The suggestions made by the Wad Committee have been included in the report. Some of its important provisions are: Till the time legislation is passed, the university should frame appropriate statutes for dealing with cases of harassment. The university should appoint a committee of three women teachers to inquire into serious charges of harassment.
If this committee records prima facie findings of guilt, the person responsible should be suspended in anticipation of disciplinary proceedings. The Disciplinary Enquiry should be headed b a retired judge and should be associated by one woman member, not connected with the University.
Law on Sexual Harassment:
The Supreme Court has laid down the necessary guidelines and norms in, Vishaka v. State of Rajasthan, for the protection of the fundamental rights of women, violated, as a result of Sexual Harassment at Work. The Court has emphasized that the guidelines and norms being laid down by it had to be duly observed at all workplaces or other institutions until a legislation is enacted for this purpose and that these should be treated as law under Art 141 of the Constitution. Sexual harassment results in the violation of the fundamental right to “gender equality” and “the right to life and liberty” besides the right under Article 15 of the Constitution (which deals with the prohibition of discrimination on grounds of religion, race, caste, creed or sex). Keeping these rights in mind, the Supreme Court has passed twelve guidelines that have the force of law. They were taken by a division bench as there was “an absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment at the workplace.” These guidelines are to be observed until legislation is enacted.
Some of these guidelines are:
- “It shall be the duty of the employer or other responsible persons in the workplace or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedure for the resolution, settlement or prosecution of acts of sexual harassment.”
- “The employer should initiate action in accordance with the law by making a complaint with the appropriate authority. Victims should have an option to seek their own transfer or that of the perpetrator.”
- “A complaint mechanism should be created in the organization. This complaint mechanism should ensure time-bound treatment of complaints. The complaints committee should be headed by a woman and not less than half of its members should be women. In order to prevent the possibility of undue pressure or influence from senior levels, a third party, especially a NGO familiar with sexual harassment, should be involved in the complaints committee.”
- “The committee must submit an annual report to the government. Employees must be allowed to raise the issue of sexual harassment at various fora.”
- The guidelines also provide for the initiation of criminal proceedings where sexual harassment is proved beyond doubt.
These guidelines are in accordance with the recommendations and conventions of various international organizations like the ILO and the European Communities. In India, the Indian Penal Code, Section 509 states, “Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any objects, intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman as intruding upon her privacy shall be punished with simple imprisonment for a term extending to one year or with fine or with both”. In addition, the Supreme Court Guidelines 1997 states any unwelcome act of physical, verbal or non-verbal conduct of a sexual nature as sexual harassment. It is a mandatory duty of employer to prevent and address sexual harassment by forming a Committee against Sexual Harassment.
What Women must do?
- Woman must shed the mentality of tolerance. Women have to stop telling themselves that this kind of behavior on the part of men is inevitable and unavoidable.
- Express strong resistance the first time it occurs. If women allow the action to take place without expressing their strongest disapproval, the offender will assume that he has their consent.
- Don’t encourage males to behave unbecomingly with them or try to attract their undue attention.
- Dress in a manner that befits a work environment.
- In case someone behaves with them in a manner that makes them feel uncomfortable, protest loudly and at once. Let others know that such conduct has been meted out to them.
- Keep safe distance from the offending party.
- Register a First Information Report with the police station.
As more and more women join the workforce, the law must ensure that women are able to enjoy the rights promised to them by the Constitution. We must ensure that they are treated with dignity and assured of gender equality and that they are not discriminated against on account of their sex. Considering that until retirement, we spend a little less than two-thirds of our lives working, we must take pains to ensure that we spend it in a dignified and productive manner.
IVth year BBA.LLB
Symbiosis Law School
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]