Dr.U.Shadakshari Goud, LL.M., M.B.A

Reader, V.S.R Law College, Bellary

A violation of a woman’s freedom of her person and her dignity;

Discriminatory, exploitative, thriving in atmosphere of threat;

Reinforces the perception of subjugation and suppression of women by men;

Affects decisionsconcerning the employment status of working women.

The most intimidating, degrading and violent form of violence against women.

sexual harassment amounts to human rights violation and gender based systemic discrimination that affects women’s Right to Life and Livelihood.

In Vishaka v. State of Rajasthan and others, the Supreme Court defines sexual harassment to include:

any unwelcome physical contact or advances,

demands or requests for sexual favors, Sexually colored remarks, Showing pornography and  any other unwelcome physical, verbal/non-

verbal conduct being sexual in nature.

Different kinds of Sexual Harassment

(Forms of Unwelcome Behaviors Which Can Constitute Sexual Harassment)

Verbal Non –Verbal Visual Physical contact

Verbal derogatory comments of a sexual nature or

based on gender sexual or gender-based jokes or teasing comments about clothing, personal behavior, or

a person's body requesting sexual favors pressure for dates graphic descriptions of pornography obscene phone calls telling lies or spreading rumors about a person's

personal or sex life turning work discussions to sexual topics (using

"puns")

Non- Verbal

staring sizing up a person’s body (looking up and down) derogatory gestures of a sexual nature sexually suggestive looks facial expressions of a sexual nature; winking,

licking lips

   

Visual presence of sexual visual material, such as

posters, cartoons, drawings, calendars, pinups, pictures, computer programs of a sexual nature

written material that is sexual in nature, such as notes or e-mail containing sexual comments

knick-knacks and other objects of a sexual nature

Physical Contact

unwelcome hugging, sexual touching or kissing standing too close to or brushing up against

another person, leaning over, invading a person's space 

patting, stroking, grabbing or pinching blocking someone's path with the purpose of

making a sexual advance  stalking  rape or attempted rape actual or attempted sexual assault, or forced

fondling

Sexual Harassment at Workplace is generally classified into two distinct types:

i. Quid pro quoii. Hostile working

environment

‘Quid pro quo’ means "this for that". In the workplace, this occurs when a job benefit is directly tied to an employee submitting to unwelcome sexual advances.

'Hostile working environment' occurs

when an employee is subjected to comments of a sexual nature, unwelcome physical contact, or offensive sexual materials as a regular part of the work environment turning it hostile for the woman to be in.

Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

The offensive conduct could be exhibited by a superior, a colleague, a subordinate or a client.

Whether or not a particular action or behavior constitutes sexual harassment is determined by the impact on the recipient, and is not dependent upon the intention of the perpetrator.

Issue 2. Is Sexual Harassment an offence? If so, what is the law on Sexual Harassment in India?

There is no specific law against sexual harassment at workplace in India.

But certain provisions in other legislations protect women against sexual harassment at workplace which are as follows:

Laws under IPC i) Section209: obscene acts and songs, to the

annoyance of others like:a)Does any obscene act in any public place orb)Sings, recites or utters any obscene song,

ballad or words in or near any public place.Punishment: Imprisonment for a term up to 3

months or fine, or both.ii) Section 354, IPC deals with “assault or

criminal force to a woman with the intent to outrage her modesty.

Punishment: 2years Imprisonment or fine, or both

iii) Section 376: Rape. Imprisonmet for life or 10 years and fine.

Section 509, IPC deals with “word, gesture or act intended to insult the modesty of a woman.

Punishment: Imprisonment for 1year or fine, or both

The Indecent Representation Of Women (prohibition) Act 1987

If an individual harasses another with books, photographs, films, pamphlets, packages,etc. containing ‘indecent representation of women; liable for a minimum sentence of two years.

Section 7 (offences by companies)- holds companies where there has been ‘indecent representation of women’ (such as display of pornography) on the premises guilty o offense under this Act.

Punishment: minimum sentence of two years.

In the absence of proper legislation pertaining to this field, the Apex Court took upon itself to formulate effective measures to check the evil of sexual harassment of working women in a leading case pertaining to sexual harassment at work place in India is Vishaka and others v. State of Rajasthan (AIR 1997 SC 3014).

The cause for this case was the alleged brutal gang rape of a social worker of Rajasthan, namely, Bhanwari Devi.

Vishaka’s Guidelines     

All the employers in charge of work place whether in the public or the private sector, should take appropriate steps to prevent sexual harassment without prejudice to the generality of his obligation; he should take the following steps:                 

i. Express prohibition of sexual harassment should be notified and circulated.

ii. Inclusion of prohibition of sexual harassment in the rules and regulations of government and public sector.

iii. Inclusion of prohibition of sexual harassment in the standing orders under the Industrial Employment (Standing Orders) Act, 1946 by the private employers.

iv. Provision should be made for appropriate work conditions for women

Employers must provide a Complaints Committee which is to be headed by a woman of which half members should be women.

Complaints Committee should also include an NGO or member of other organization- which is familiar with handling of sexual harassment cases.

Complaints procedure should be time bound

Confidentiality of the complaints procedure has to be maintained.

Complainant or witnesses should not be victimized or discriminated against- while dealing with complaints.

The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.

Issue 3. How Sexual Harassment is an HRM issue?

Affects a person physically, emotionally, economically and socially and also affects one's career

It can have a devastating effect upon the health, confidence, morale and performance of those affected by it.

The anxiety and stress produced by sexual harassment commonly leads to those subjected to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere

sexual harassment will definitely have a negative impact on the environment of the work place affecting the management of HR resulting in expenses and losses:

Costly investigation and litigation Negative exposure and publicity Embarrassing depositions Increased absenteeism Lowered employee morale Reduced productivity Decreased efficiency Higher employee turns over Erosion of organizations brand names, goodwill,

and public image Negative impact on stock price

Hence, Sexual harassment is not just a women empowerment issue but an issue pertaining to Human Rights, Human Resource Management and safety and health of the workplace environment.

Safe working environment and Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. The concept of gender equality embodied in our Constitution would be an exercise in ineffectiveness if a woman’s right to privacy is not regarded as her right to protection of life and liberty guaranteed by Article 21 of the Constitution of India

It is the human right of women, to enjoy equality with man, the uninhibited and free opportunity to her and to unfold her full faculties, eliminating from social milieu, all sex prejudices, sex bans and sex servitude.

Elimination of sexual harassment would definitely lead to effectiveness and efficiency of organizations paving way for enhanced production of production and services. Hence, there is no duty higher than treating women with respect, dignity and honor in the interest of our own corporate world and society at large.

Issue 4. Whether the allegations/ charge made against the private Secretary Mr. ‘Y’ constitute Sexual Harassment? If so, how?

An action of the superior against a female employee which is against moral sanctions and does not withstand test of decency and modesty amounts to sexual harassment. This has been held so in the case of Apparel Export Promotion Council v.A.K.Chopra,( known as A.K.Chopra’s case), AIR 1999 SC 625

Hence, the allegations/ charge made against the private Secretary Mr. ‘Y’ constitute Sexual Harassment

Issue 5. Do ‘Sexual Harassment’ Violates Gender Equality and other basic human rights like Right to life?

Sexual harassment has been recognised as most intimidating, most violating form of violence since long in countries like UK, USA and many countries have not only taken note of how degrading experiences of sexual harassment can be for women as well as employers but have adapted legislative measures to combat sexual harassment

Within the workplace, it creates a hostile work environment and reinforces the perception of subjugation and suppression of women by men in all areas of their lives.

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. Hence, it amounts to violation of gender equality.

Gender based decimation in the form of sexual harassment represents the ugly face of society. In fact it is a travesty of all canons of social justice and equity that women who constitute half of the words population and works two thirds of world’s working hours should earn 1/10th of world’s property and also remains victims of inequality, injustice and harassment

In India, sexual harassment was for the first time recognised by The Supreme Court as human rights violation and gender based discrimination that affects women’s Right to Life and Livelihood.

While the Apex Court has given mandatory guidelines, known as Vishaka Guidelines, for resolution and prevention of sexual harassment enjoining employers by holding them responsible for providing safe work environment for women, the issue still remains under carpets for most women and employers.

The impact of sexual harassment may be so strong that the victim refrains from reporting the case due to the following reasons:

They are embarrassed and humiliated by the incident.

They fear the matter will be trivialized and disregarded.

There is a sense of insecurity that they will not be believed, as very often there is no proof of the incident.

sexual harassment in the workplace takes away from the woman her right to live and work with dignity.

They feel that no action will be taken and the perpetrator will be allowed to go free.

There is a fear from gossip and further humiliation.

They also fear negative repercussions and retaliation from the harasser or even the principal employer.

They fear being asked to leave or taking a transfer even if the harasser is found guilty.

Do you justify the dismissal of Mr. ‘Y’?

Dismissal of Mr.Y is justified

The penalty imposed on the private secretary of Mr. ‘Y’ is not harsh and disproportionate to the guilt committed by him.

Issue 6. Preventive & Remedial Measures to make the workplace safe for women

Employers must provide a Complaints Committee which is to be headed by a woman of which half members should be women.

Complaints Committee should also include an NGO or member of other organization- which is familiar with handling of sexual harassment cases.

Complaints procedure should be time bound

Confidentiality of the complaints procedure has to be maintained.

Complainant or witnesses should not be victimized or discriminated against- while dealing with complaints.

The Committee should make an annual report to the concerned Government department and also inform of the action (if any) taken so far by them.

Guidelines should be prominently notified to create awareness as regards the rights of the female employees. 

The employers should assist the persons

affected, in cases of sexual harassment by outsiders or third parties. 

Sexual harassment should be discussed at workers’ meetings, employer-employee meetings and at other appropriate forums.  

Both Central and State governments are required to  adopt measures including legislations to insure that  private employers also observe these guidelines

Issue 7. Sexual Harassment Policy

In view of the Viahaka’s judgment every employer must acknowledge that it is his legal responsibility to provide safe working environment for women free from sexual harassment and discrimination and that he can be held liable for sexual harassment by employees.

The most effective way to avoid sexual harassment in the work place, and also influence the public’s state of mind, is for the employer to adopt a clear policy prohibiting sexual harassment and to make it very clear to their employees.

A basic policy should set forth the following: an express commitment to eradicate and prevent

sexual harassment and express prohibition of sexual harassment;

a definition of sexual harassment including both quid pro quo and hostile work environment giving examples;

an explanation of penalties (including termination) the employer will impose for substantiated sexual harassment conduct;

a detailed outline of the grievance procedure employees should use;

a clear statement that anyone found guilty of harassment after investigation will be subject to immediate and appropriate disciplinary action

a clear understanding and strict rules regarding harassment of or by third parties like clients, customers etc.

additional resource or contact persons available for support and consultation;

an express commitment to keep all sexual harassment complaints and procedures confidential and time bound;

provisions for training of employees at all levels.

an anti retaliation policy providing protection against retaliation to complainants, witnesses, Complaints Committee members and other employees involved in prevention and complaints resolution.

Policies and procedures should be adopted after consultation or negotiation with employee representatives. Experience suggests that strategies to create and maintain a working environment in which the dignity of employees is respected are most likely to be effective where they are jointly agreed

Communication of Policy

Issue a strong policy from the top authority against sexual harassment taking a "zero tolerance" approach Make sure it gets out to all your employees either through the employee handbook or in memo form or with pay packets or with appointment letter. Have the employees sign it to acknowledged that they received and read the policy. The policy can also be posted in the workplace. If you have employees whose primary language is not English, have your sexual harassment policy translated or communicate to them in their primary language. Discuss the policy with all new employees Ensure that third-party such as suppliers and customers are aware of your sexual harassment policy Review the policy with your employees on a regular basis

Enforcement of Policy

Take complaints of sexual harassment seriously and investigate all sexual harassment charges quickly and thoroughly and professionally Maintain accurate records of the investigation and the findings Make sure employees who bring charges do not face retaliation Ensure confidentiality and time bound response to complaints. Take immediate action when sexual harassment is discovered or suspected Discipline appropriately any employee found to have engaged in sexual harassment Safeguard your employees from third-party work-related sexual harassment

While the Apex Court has given mandatory guidelines, known as Vishaka Guidelines, for resolution and prevention of sexual harassment enjoining employers by holding them responsible for providing safe work environment for women, the issue still remains under carpets for most women and employers.

It is not easy to change the ingrained attitude of perpetrators of the wrong of sexual harassment.

Hence, 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.

In this regard, the following comments and suggestions may be noted:

1. There is a need to adopt a holistic approach to deal with the problem of sexual harassment. Legislation declaring sexual harassment unlawful, judicial decisions awarding damages, or complaints committees giving out punishment cannot control the widespread prevalence of sexual harassment.

The whole society should be involved in spreading the message that sexual harassment is a heinous and demeaning practice.

The media, the television, radio and newspapers must engage in concert attempts to change the mindset of harassers.

2. Speaking out about sexual harassment is an effective tool in combating it.

While speaking about it, the problem becomes

visible, it is acknowledged that it exists, and this in turn leads one to take effective measures against it.

It mobilizes public opinion against it. It makes it

difficult for a potential harasser to commit the crime. It equips people with information as to what is to be done in such a case.

Since there are inherent difficulties with proving a case of sexual harassment, once the complainant has established a prima facie case, the burden of proof should shift to wrongdoer to prove his innocence.

To control sexual harassment at the workplace, employment contracts must contain a clause that if an employee is found guilty of sexual harassment that would lead to termination of the employee’s job after due procedure.

Sexual harassment cases may lead to problems for the victim’s family. This must be dealt with by women organizations and they should provide counseling services to the victim as well as her family members.

Women organizations and civil society should play a proactive role to change the patriarchal norms and standards that have largely permeated within the fabric of Indian society.