Sexual Harassment At The Workplace: Study From The Law And Sociology Perspective
by
ANJALI RAWAT
III YEAR
NATIONAL ACADEMY
OF LEGAL STUDIES
AND RESEARCH, UNIVERSITY OF LAW,
HYDERABAD.
Foreword
Ms. Anjali Rawat(more about her here) is certainly a very beautiful lady - by mind and by doing such a good study on a taboo subject at her young age reflects her open mind and broad view towards this touchy subject. Such persons only set the rhythm for a 'change' in our society.
Her study was published originally in MS Word(click here to download). We've it converted to PDF(click here to download).
The following text is unformatted which is converted from the PDF. So please try to read the PDF or the .Doc document in the link above.
Admin, http://www.sexualharassmentatworkplace.org
TABLE OF CONTENTS
Chapter Three: Research Methodology.........................................................................................10
3.2 Sources ofData.................................................................................................................... lO
3.3 Methods of Data Analysis....................................................................................................11
11
CHAPTER ONE: INTRODUCTION
Sexual harassment is a complex issue involving women, their
perceptions and behaviour, and the social norms of the society.
Of all the forms that violence against women can assume, sexual
harassment is the most ubiquitous and insidious; all the more so
because it is deemed
'normal' behaviour and not an assault on the female
entity.1 More often than not it expresses
itself
in the garb of power or desire or both. We cannot understand the
issue of sexual harassment at work place unless we pay attention
to prevalent socio-cultural issues, of gender and sexuality, and
how it impacts upon the status of women.2
SOCIAL ASPECT:
In today’s era, the number of women who have entered the
formal labour workforce in India is unprecedented. With the
current global economic condition more and more women are
entering the workforce. In light of this development, there is,
more than ever before, a pressing need for the rights of women to
be respected, protected and fulfilled, particularly at the
workplace. The ‘right to work’ encompasses the right
to work free from any form of sexual harassment.3 Women’s rights at the workplace are of
course, important for many reasons. The obvious reasons that come
to mind are the right of women to be free from unwanted sexual
comments, advances, touching and more. It is important to note,
however, that the issue of sexual harassment at the workplace
extends far beyond individual women and their happiness. It also
extends to workforce productivity and economic development.
Harassment should not be treated as a joke. It creates feelings
of uneasiness, humiliation, and discomfort.4 Any such behaviour is unacceptable and intolerable
regardless of the perpetrator. It is a coercive, cruel, and
destructive behaviour against others that can have devastating
effects on their work efficiency. Harassment, by co-workers in
particular, is contrary to basic union principles of solidarity
and equality.
Women are the most likely victims of this problem of sexual
harassment at workplace though there are cases where men face
harassment. “Harm caused by sexual harassment is often
extreme, including humiliation, loss of dignity, psychological
(and sometimes physical) injury,
1 http://www.womenstudies.in/elib/others/ot_sexual_harassment.pdf, Last visited on: 2nd September, 2011.
2 http://www.egyankosh.ac.in/bitstream/123456789/36042/1/Unit%2027.pdf, p. 2, Last visited on: 2nd September,
2011.
3 http://128.226.6.231/documentation/ciri_variables_short_descriptions.pdf, Last visited on: 2nd September, 2011.
4 Supra no. 3, p. 3.
and damage to professional reputation and career. Inevitably, the victims face a choice between their work and their self-esteem. Sometimes, they face a choice between their jobs and their own safety.”5 Sexual harassment at workplace is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting or promotion), or when it creates hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. Mostly such cases go unreported because of societal factors which has become a growing concern.6
LEGAL ASPECT:
Looking from the law perspective, sexual harassment is a legal
term created for the purpose of fending harassment and
discrimination against women at the workplace. The term is
constantly being redefined and extended in legislation and court
decisions. The phrase ‘sexual harassment at
workplace’ has neither been defined in the Indian Penal
Code nor is there any legislation to curb sexual harassment at
the workplace. On-the-job sexual harassment is not a recent
problem, although legal liability for it is. The Indian court
system did not decide the first sexual harassment at workplace
case until 1997.7 India still lacks a
substantive legislation dealing with sexual harassment at
workplace.
The Constitution of India gave to women, the Fundamental Right to
Equality and the Right to not be discriminated against on the
grounds of religion, race, caste, sex or place of
birth.8 It was realising the secondary
status of women and to undo the injustice done to them over
centuries that the Constitution included a special provision in
Article 15(3)9, permitting the State to
positively discriminate in favour of women by enacting laws/
provisions so as to ameliorate their social, economic and
political condition and to accord them parity.10 Sexual harassment of
5 Barry S. Roberts and Richard A. Mann, “Sexual Harassment In The Workplace: A Primer”, http://www.uakron.edu/law/lawreview/v29/docs/roberts.pdf, Last visited on: 2nd September, 2011.
6 http://www.sexualharassmentatworkplace.org/why-cases-sexual-harassment-g..., Last visited on: 2nd
September, 2011.
7 Vishaka v. State of Rajasthan & Ors., AIR 1997 SCC 3011.
8 Article 14 and 15, The Constitution of India.
9 Article 15 (3) Nothing in this article shall prevent the State from making any special provision for women and children.
10 “Social Justice: The Legal Instruments”, http://www.ambedkar.org/NHRCReport/3.pdf ; See also: Savitri W. E. Goonesekere , “The Concept of Substantive Equality and Gender Justice in South Asia”, http://www.unifem.org.in/PDF/The%20Concept%20of%20Substantive%20Equality%20-final%20-%2031-12-
07.pdf, Last visited on: 2nd September, 2011.
women at workplace violates their sense of dignity and right
to earn a living with dignity and is against their fundamental
rights and their basic human rights.11
Hence, it is obligatory on the Court, under Article 32 of the
Constitution, to enforce these fundamental rights, in the light
of the role of the judiciary as envisaged in the Beijing
statement of principles of the independence of the judiciary. In
the absence of the enacted law to provide for effective
enforcement of the basic human right of gender equality and
guarantee against sexual harassment and abuse, more particularly
against sexual harassment at the workplace, the Supreme Court has
laid down the guidelines and norms in the Vishaka
judgment12 for compliance at all
workplaces/ institutions. These guidelines and norms of the
Supreme Court are required to be treated as “The Law of the
Land”.13
The Prohibition of Sexual Harassment of Women at Workplace Bill,
2010 (hereinafter Prohibition of SHW Bill)14 which was initially drafted back in 2007 by
National Commission on Women and came after the former Protection
against Sexual Harassment of Women Bill 2005 was scrapped after
being deemed too wide in scope and thus difficult to implement.
Instead the new Bill focuses specifically on sexual harassment at
the workplace. Although the Cabinet cleared it in November last
year, it is still pending before the parliament.
The International Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) adopted in 1979 at Beijing,
which has been ratified by India, also recognised the right of
women to equality at the workplace and it states that women shall
not be subjected to sexual harassment at the workplace as such
harassment vitiates the working environment.15
Whatever the case, the issue has undeniably become more prominent
in the last decade, thanks to the efforts of civil society groups
and the media, and pressure from international organizations. It
is recognized as abusive behaviour, and measures are being taken
by countries across the globe to punish and prevent it.
11 Maya Majumdar , “Encyclopaedia of Gender Equality Through Women Empowerment”, p. 1
12 Vishaka v. State of Rajasthan & Ors., AIR 1997 SCC 3011.
13 Article 141, The Constitution of India.
14 Accessible at: http://ncw.nic.in/PDFFiles/sexualharassmentatworkplacebill2005_Revised.pdf, last visited on 10th
October, 2011.
15 Sally Engle Merry , “Constructing a Global Law-Violence against Women and the Human Rights System”, https://www.utexas.edu/law/centers/humanrights/events/adjudicating/paper..., Last visited on: 2nd September, 2011.
CHAPTER TWO: REVIEW OF LITERATURE16
Sexual harassment at work place has always been one of the
primary focuses of gender studies. The study on sex crimes
against women would be incomplete if sexual harassment at work
place is not studied. Yet, academic literature and information
relating to sexual harassment reveals that only the tip of the
iceberg is currently known. It is possible that much of the
sexual harassment is unreported in the workplace, as studies
suggest that only a small minority of people who are sexually
harassed make a formal complaint.17 In
this section, attempt has been made to give a comprehensive
review of the main academic literature and relevant information
in relation to sexual harassment in the workplace. It firstly
outlines the different definitions of sexual harassment.
Following this, have been discussed the individual and
organisational effects of sexual harassment. Then relationship
between sexual harassment and bullying, forms of sexual
harassment, the scale of sexual harassment in the workplace and
individual factors including the victim and the perpetrator has
been outlined.
A study of literature in this field by Manchester Business School
shows that what is already known is a plethora of sexual
harassment definitions, organisational violation, the strong link
between power and sexuality, forms of sexual harassment, groups
at risk of sexual harassment, antecedents of sexual harassment
(individual/ organisational/ societal), short and long term
effects on the individual and organisation, difficulties facing
individuals who wish to file a complaint, legal responses and
examples of best practice procedures.18
DEFINITION OF SEXUAL HARASSMENT
The emergence of the term ‘sexual harassment’ can
be traced back to the mid 1970s in North America.19 Sexual harassment at work is an unwelcome or
uninvited behavior of sexual natures, which is offensive,
embarrassing, intimidating or humiliating and may affect an
16 http://research.mbs.ac.uk/equality-diversity/Portals/0/docs/WPS59Sexualh...
17 “Black, Asian and Minority Ethnic (BAME) women’s experiences of sexual harassment in the workplace in the
North West of England”, http://research.mbs.ac.uk/equality-diversity/Portals/0/docs/ESFreport18....
18 Carrie Hunt, Marilyn Davidson, Sandra Fielden and Helge Hoel, “Sexual harassment in the workplace: A Literature Review”, The Centre for Equality and Diversity at Work, Manchester Business School, University of Manchester, p. x, http://research.mbs.ac.uk/equality-diversity/Portals/0/docs/WPS59Sexualharassment.pdf.
19 Carrie N. Baker , “The women’s Movement against Sexual Harassment”, p. 1, Cambridge University Press, 2008
employee’s work performance, health, career or
livelihood.20 CEDAW described sexual
harassment in 1992, which is the generally accepted definition,
as including:
“Such unwelcome sexually determined behavior as physical
contact and advances, sexually colored remarks, showing
pornography and sexual demand, whether by words or actions. Such
conduct can be humiliating and may constitute a health and safety
problem; it is discriminatory when the woman has reasonable
grounds 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.”21
Precise quantification of sexual harassment in the workplace is
problematic. When we examine the behaviours and the circumstances
in which sexual harassment occurs there exists a lack of
consensus regarding the definition of sexual
harassment.22 “Victims of Sexual
Harassment in Modern Work Places in India” by P. Madhava
Soma Sundaram, K. Jaishankar & Megha Desai is a good piece of
literature in this regard.23
Vishaka was a landmark judgement by Supreme Court of India. Not
because it was attack on working women’s fundamental right
to work without fear and prejudice. Not because it is a saga of
immense torture of a naïve working woman. Not because a
woman showed exemplary courage to fight against the male ego our
immoral society. It is a landmark case because first time ever it
was officially recognized at such a high level of need for laws
for sexual harassment and laying down of guidelines of sexual
harassment of working woman. Till 1997 even after India’s
independence of 50 years there was hardly any law to safeguard
sexual harassment of working women.
THE RELATIONSHIP BETWEEN SEXUAL HARASSMENT AND BULLYING
The majority of the literature on sexual harassment appears to
have been published in the
1990s, and in more recent years, the emphasis in the research has
shifted to the broader issue of
20 Sabitha, M., “Sexual Harassment Awareness Training at Workplace: Can it effect Administrators’ Perception?”, JOAAG, Vol. 3. No.2, (2008), p. 2.
21 General Recommendation No. 19, http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm; See also: S. 2 (m), (n) of The Protection of Women Against Sexual Harassment at Work Place Bill, 2010, http://www.sexualharassmentatworkplace.org/sites/default/files/sexual-ha..., Last visited on: 2nd September, 2011.
22 Bimrose, J, “Sexual harassment in the workplace: An ethical dilemma for career guidance practice?”, British
Journal of Guidance and Counselling, Vol. 32 (1), 2004, pp. 109-121.
23 Natti Ronel, K. Jaishankar, Moshe Bensimon, “Trends and Issues in Victimology”, K. Jaishankar Publications,
2008.
bullying. Bullying is a globally recognised problem reflected
in the recent agendas of international organisations such as the
International Labour Office (ILO) and the World Health
Organization (WHO).24
Historically, research centered on sexual harassment has tended
to focus on the person being harassed and the perpetrators’
behaviour, including the psychological profile of a
harasser.25 It is however, worth noting
that the boundaries between the concepts are somewhat unclear,
with unwanted sexual attention, used with the intention of
excluding or punishing targets, likely to fit the term bullying.
Essentially, sexual harassment is seen as representing an abuse
of power.26 It is argued that harassment
is “not about sex, [but] about power…it supports and
perpetuates a system in which one class of persons is
systematically disempowered”.27
Jeff Hearn and Wendy Parkin have written extensively on this
theme in their “Sex at Work: The Power and Paradox of
Organisation Sexuality”28,
“Gender Sexuality and Violence”29 and “Recognition processes in sexual
harassment, bullying and violence at work: the move to
organizational violations”30. For
them, “organisations and sexuality simultaneously
construct each other”. Their studies reveal that as men
remain in positions of power and tend to dominate management
structures, they have increased opportunities to exercise their
power in a negative manner when compared with women. This may
mean that sexual harassment comes within the wider ambit of
bullying.
24 Di Martino, V., Hoel, H. and Cooper, C. L. , “Preventing violence and harassment in the workplace”, European Foundation for the Improvement of Living and Working Conditions, 2003, http://www.workplacebullying.org/res/articles/F6.pdf, Last visited on: 2nd September, 2011.
25 Jansma, L. L., “Sexual harassment research: integration, reformulation, and implications for mitigation efforts” in M. E. Roloff (ed.), Communication yearbook 23, Sage Publications, Thousand Oaks, CA, Cited in D. S. Dougherty and M. J. Smythe, “Sensemaking, organizational culture, and sexual harassment”, Journal of Applied Communication Research, Vol. 32 (4), 2004, pp. 293-317.
26 Brewis, J., “Foucault, politics and organizations: (re)-constructing sexual harassment”, Gender, Work and
Organisation, Vol. 8 (1), 2001, pp. 37-60.
27 http://research.mbs.ac.uk/equality-diversity/Portals/0/docs/ESFreport18...., p.14, Last visited on: 2nd
September, 2011.
28 St. Martin’s Press, New York, 1987.
29 In Fitzgerald, L. F. and Ormerod, A. J., “Perceptions of Sexual Harassment: The influence of Gender and
Academic Context”, Psychology of Women Quarterly, Vol. 15, 1991, pp. 281-294. (Sage Publications, London)
30 In J. E. Gruber and P. Morgan (eds.), “In the Company of Men: Male Dominance and Sexual
Harassment”, Northeastern University Press, Boston, 2005.
FORMS OF SEXUAL HARASSMENT
There are six different categories of sexual harassment as can
be identified from the available literature:
1. Quid Pro Quo31: In these cases, a
supervisor or mentor makes unwelcome advances of a
sexual nature and either states or implies that the woman must
submit, if she wants to keep her job, receive a raise and receive
a promotion or a specific job assignment.
2. Hostile Environment32: Unwelcome
sexual conduct can make the working environment
‘hostile’ to women in general. An environment is
considered ‘hostile’ when unwelcome sexual conduct
has the effect of poisoning the work environment. The central
enquiry is whether the conduct ‘unreasonably interferes
with an individual’s work performance’ or
‘creates an intimidating, hostile or offensive working
environment.’33
3. Sexual Favouritism34: This kind of
harassment occurs when employees who provide sexual favours to
their employer receive benefits in the form of raises, promotions
etc., which one is denied because one refused those sexual
advances.
4. Harassment by Non-Employees
5. Same Sex Harassment
6. Constructive Discharge
7. “Not wanted in the inbox! Evaluations of unsolicited and
harassing emails”35 by Ne Khoo Pek
and Charlene Y. Senn, brings on a new form of sexual harassment
via electronic means which they claim has increased as the level
of internet and email usage has grown.
THE SCALE OF SEXUAL HARASSMENT
In India, every 53 minutes, a woman is reported to be sexually
harassed and every 26 minutes a woman is sexually
molested.36 Several studies indicate that
the magnitude of unreported cases is several times over the
estimate.37 Most studies focus on sexual
harassment in general. A recent survey in India has found that
68% women have suffered mental harassment
31 http://www.dikseo.teimes.gr/spoudastirio/E-NOTES/S/Sexual_Harassment_Vie..., Last visited on: 2nd
September, 2011.
32 Ibid.; Note that the above two categories have evolved in US juridical discourse to become legally recognized harassment.
33 The standard for evaluating a hostile environment is from the perspective of a ‘reasonable person’.
34 http://www.utc.edu/Outreach/TransformationProject/typesofsh.php, Last visited on: 2nd September, 2011.
35 Psychology of Women Quarterly, Vol. 28, 2004, pp. 204-214.
36 National Crime Records Bureau’s (NCRB) 2005 Crime Clock.
37 Srinivasan, A., “Sexual Harassment”, Indian Journal of Gender Studies, Vol. 5(1), Jan-June 1998, pp.115-125, p.
115.
and 26% have been physically molested at their workplace.38 One study to be noted in this regard is Lawyers Collective Women’s Rights Initiative’s in 2008- “Law relating to sexual harassment at the workplace”39. It highlights the fact that sexual harassment of women is rampant in India and most of it is unreported. There is a lack of literature giving the scale and extent of the problem of sexual harassment at workplace.
INDIVIDUAL FACTORS
The Victim:
A study by Kohlman (2004)40 reported that ‘women are not reporting sexual harassment based upon any one overriding factor integrally related to their gender’. A survey conducted by the Department for Trade and Industry (DTI) in 2005 in Britain41 showed that women and disabled people or people suffering from long-term illness were more likely to suffer sexual harassment at workplace than men which goes on to prove that profiles of victims do matter.
The Perpetrator:
It cannot be said with certainty how far the
perpetrator’s mindset is relevant in the dominance of
sexual harassment at workplace but individuals who are
competitive, hard driving, or have low self monitorring for
example, are more likely to exhibit negative behaviours as per a
study.42
Another study by Done substantiates this point that men who have
low levels of self-control are more likely to sexually harass
than men with high levels of self-control.43 Also typically, the perpetrator of sexual
harassment will be in a position of power and the victim will be
comparatively powerless is a point which Wilson and Thompson
bring out in their study.44
38 Oishik Sircar and Nalini Bhanot, “Violence Against Women”, http://infochangeindia.org/women/backgrounder/violence-against-women.html, Last visited on: 2nd September,
2011.
39 Edited by Indira Jaising
40 Kohlman, M. H. (2004) ‘Person or position? The demographics of sexual harassment in the workplace’. Equal
Opportunities International. 23 (3-5): 143-162.
41 Grainger, H. and Fitzner, G. (2006) Fair treatment at work survey 2005. Employment Relations Research Series
No.63. Department of Trade and Industry: London.
42 Anderson, C. A., Anderson K. B. and Deuser, W. E. (1996) ‘Examining an affective aggression framework: weapon and temperature effects on aggressive thoughts, affects and attitudes’. Personality and Social Psychology Bulletin. 22: 366-76.
43 Done, R. S., “Just Men Out Of Control? Criminology And The Likelihood To Sexually Harass”, in J. E. Gruber
and P. Morgan (eds.), “In the company of Men: Male dominance and Sexual harassment”, Northeastern University
Press, Boston, 2005.
44 Wilson, F. and Thompson, P. (2001) ‘Sexual harassment as an exercise of power’. Gender Work and
Organization. 8,(1): 61-83.
The review of literature also focussed on various studies and
reports made by women organisations45 and
international forums like UN and its organs, International Labour
Organisation, World Bank etc. which are working towards this
cause.46 The Status of Workplace Sexual
Harassment in IT/ ITES Industry, 2010 by Centre for Transforming
India, is one of the only surveys done in this field in
India.47 The study gave startling and
horrifying figures and showed that 88 per cent of 600 women
employees, age 19 to 45, reported sexual harassment (any form of
sexually directed verbal, visual or physical attention that is
unwanted and unwelcome) across IT and ITES sectors across NCR,
Bangalore, Pune, Mumbai, Chennai and Hyderabad. But we need more
such studies to be able to assess the actual magnitude of the
problem. But one thing is for sure that sexual harassment at
workplace is much more prevalent than we think.
45 Prajnya Trust- http://www.prajnya.in/gvr10.pdf; http://cividep.org/wp-content/uploads/Sexual-Harassment- Report-MahooLyimo-_Oct-2010.pdf; HRLN- http://hrln.org/admin/Newsroom/subpdf/article%20sex-harass3.pdf; http://www.iwraw-ap.org/resources/pdf/India%20Shadow%20report.pdf
46 The reports can be found at:
ILO- http://www.ilo.org/dyn/gender/docs/RES/429/F1845214041/Sexual%20harassem... World Bank- http://www.worldbank.org/html/cgiar/publications/gender/gender13.pdf; UNHCR- http://www.un.org/womenwatch/osagi/UN_system_policies/(UNHCR)policy_on_harassment.pdf; UNDP- http://www.undp.org/about/transparencydocs/WPHarassment.pdf; International Trade Union Confederation- http://www.ituc-csi.org/IMG/pdf/Harcelement_ENG_12pgs_BR.pdf
47 http://indiatoday.intoday.in/story/a+bill+for+bullies/1/124505.html
CHAPTER THREE: RESEARCH METHODOLOGY
3.1 THE RESEARCH PROBLEM AND OBJECTIVES OF THE STUDY
My research began with the question that how the legal
enforcement of rules regarding sexual harassment at workplace
does takes place in the real world. Is it really as simple as it
seems? Is having a set of guidelines in terms of Vishaka rules
sufficient to tackle and combat this serious issue? Do we need a
substantive law to deal with it? Why is it that everything has to
be evaluated on terms of law? Can’t we have a sociological
way of bringing about change in the society? Why is it that we
need to depend on a legal framework to bring about a change? Is a
correct mindset not enough? Will awareness not be able to bring
about change? What does it take to change the mentality of
people? These were the plethora of questions which popped up in
my mind before I went on to work. But obviously one project is
not enough to tackle all these questions.
The main research question was to examine the sufficiency
or otherwise of the existing laws to provide safety and
protection to women at work place. The research would obliquely
cover the impact of sexual harassment of women on the work
environment and the perceptions about it. But above all the
research is aimed at suggesting measures to prevent, control and
minimize the incidence of sexual harassment of women at work
place.
The next step was reviewing the literature available on the issue
so that our above queries get answers. Literature review is
integral part of entire research process and makes valuable
contribution to every operational step. It served to broaden my
knowledge and contextualize my findings of the doctrinal
research. It showed me the deficiency and the gaps in the current
literary discourse which further fuelled my interest to delve
deeper into the central research question i.e. finding out how
the handling of sexual harassment cases has changed after Visakha
and how does the lack of a substantive law affect the issue.
3.2 SOURCES OF DATA
The whole idea behind research is “re-
search” implying that it is a structured enquiry that
utilizes acceptable scientific methodology to solve problems and
create new knowledge that is generally applicable. It is not that
we do not engage in such process in our daily life, the
difference between our casual day-to-day generalisation and the
conclusions usually recognized as scientific method lies in the
degree of formality, rigorousness, verifiability and general
validity of latter.
A doctrinal study was employed wherein evidence was
gathered from information collected from secondary sources. The
host of sources referred to, ranged from browsing newspaper
archives to research articles to reports of NGO’s on Sexual
Harassment at Workplace, apart from books, journals, internet
sources etc. Supreme Court cases and High Court cases were the
most important source of data collection and provided the
starting point on which the other secondary sources were
studied.
3.3 METHODS OF DATA ANALYSIS
The data has been analysed in context of the legal rules and guidelines which exist in the India and what ideally should have been the situation. This has been done on the basic knowledge stemming from the limited review of literature done in this field. The central research question has been kept in mind while analyzing the secondary data sources mentioned above.
CHAPTER FOUR: RESEARCH FINDINGS
The research findings constitute the law perspective insofar it
involves the trend that emerges upon studying decided cases and
the other cases of sexual harassment at workplace reported in
newspaper or which gain prominence. Very slightly the topic of
how sexual harassment at workplace is perceived has been
dealt.
4.1 A BRIEF LOOK AT THE LANDMARK CASES: BREAKING THE SHACKLES WITH VISHAKA1 AND CONTINUING THE
LEGACY WITH A.K. C 2
Harassment at workplace by the Males is the reality of the
working woman’s life. It was in August 1997, in the case of
Vishaka v. State of Rajasthan & Ors.3, that for the first time, sexual harassment was
explicitly or legally defined as an unwelcome sexual gesture or
behaviour, whether directly or indirectly as sexually coloured
remarks, physical contact and advances, showing pornography, a
demand or request for sexual favours, any other unwelcome
physical, verbal/ non-verbal conduct being sexual in nature.
The primary question in the Vishaka case was whether the State
had the responsibility to protect its employees and workers. A
writ petition was filed in the Supreme Court with a three-fold
aim: i. Firstly, to assist in finding suitable methods for the
realization of gender equality,
ii. Secondly, to prevent sexual harassment, and
iii. Thirdly, to fill the vacuum in the existing legislation.
Sexual harassment was identified as a separate illegal behaviour.
The critical factor in sexual harassment is the un-welcomeness of
the behaviour, thereby making the impact of such actions on the
recipient more relevant than the intent of the perpetrator, which
is to be considered also. Where any of these acts are committed
in circumstances under which the victim’s employment or
work (whether she is drawing salary, or honorarium or voluntary
service, whether in government, public or private enterprise),
such conduct can be humiliating and may constitute a health and
safety problem, it amounts to sexual harassment at the
workplace.
Also, the duty of the employer or other responsible persons in
workplaces and other institutions was clearly defined:
1 Vishaka v. State of Rajasthan & Ors, AIR 1997 SCC 3011.
2 Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.
3 Supra n. 48.
“It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.”
The immediate cause for filing the petition was the alleged
brutal gang rape of Bhanwari Devi, a social worker in Rajasthan.
The Supreme Court, in the absence of any enacted law to provide
for effective enforcement of basic human rights of gender
equality and guarantee against sexual harassment, laid down
certain guidelines which continue to be followed till date. These
guidelines apply to both organized and unorganized work sectors
and to all women whether working part time, on contract or in
voluntary/honorary capacity.
The guidelines are a broad framework which put a lot of emphasis
on prevention and within which all appropriate preventive
measures can be adapted. One very important preventive measure is
to adopt a sexual harassment policy, which expressly prohibits
sexual harassment at work place and provides effective grievance
procedure, which has provisions clearly laid down for prevention
and for training the personnel at all levels of employment.
In the Apparel Export Promotion Council v. A.K.
Chopra4 case the SC upheld the
removal of an
employee from the services on charges of sexual harassment. He
repeatedly used to touch a clerk cum typist in his organization
and was clearly sexually harassing her. Dr. Anand observed that
“sexual harassment of a female at the place of work is
incompatible with the dignity and honour of a female and needs to
be eliminated and that there can be no compromise with such
violations, admits of no debate.”5
Citing the message of international instruments such as the
Convention on the Elimination of All Forms of Discrimination
Against Women, 1979 “CEDAW” and the Beijing
Declaration which direct all State parties to take appropriate
measures to prevent discrimination of all forms against women
besides taking loud and clear steps to protect the honour and
dignity of women, the court said that these international
instruments cast an obligation on the Indian State to gender
sensitize its laws. This puts the Courts under an obligation to
see that the message of the international instruments in not
allowed to be drowned.
Apart from redressing a ten year old wrong, the SC has also done
well to rule that sexual harassment is violative of two
fundamental rights guaranteed by the constitution- the right
to
4 AIR 1999 SC 625.
5 Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625, ¶27.
gender equality and the right to life and liberty. With this
declaration, the court has put in perspective the indignity
suffered by women across the country at their place of work,
compounded by judicial delays and adverse verdicts in most
cases.6
This case thus continued the legacy of Vishaka.
Unfortunately, we do not find many court cases filed to remedy
this issue.7
4.2 A FEW SEXUAL HARASSMENT CASES REPORTED IN NEWS
As pointed out in the earlier chapters the sexual harassment
cases are seldom reported. A very few cases actually captured
media attention. Cases that have made international headlines in
the past few years include the allegations of sexual harassment
against the US-based head of sales at Infosys, Phaneesh Murthy,
and more recently against the Canada-based CEO of Penguin
International, David Davidar, both of whom were forced to
resign.8 In both cases, the men in
question were working abroad and in both cases, the women were
white, leading to speculation that action might not have been as
quick and as severe had the victim been Indian and the setting an
Indian office. Both cases were settled out of court.
? Closer home, in 2005-06, an Indian Air Force pilot Anjali Gupta
was court martialled and dismissed from service for misconduct
after she accused three superiors of sexually harassing her. The
sexual harassment charges were referred to a court of enquiry
which said she failed to prove her case. A year later, three
trainees were suspended when they levelled similar charges
against an instructor.9
? But Shehnaz Mudbhatkal case is one of the oldest cases in which
sexual harassment at the workplace, as an issue, captured the
collective consciousness of working women back in 90’s.
This brave woman worked as an air 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. She did not give in rather filed a suit
which she fought for 11 years. In 1997, she was awarded full
wages and continuity of services with effect from
1985.10
6 Anjali Kant, “Women and the Law”, APH Publishing, New Delhi, 2008, pp. 181-182.
7 Till date there are just eight cases (both SC and all HC’s) dealing with sexual harassment at workplace. Courtesy: Manupatra search.
8 http://www.prajnya.in/gvr10.pdf, last visited on: 10th October, 2011.
9 “Now, Anjali loses sexual harassment case”, http://www.indianexpress.com/oldStory/83677/, last visited on: 10th
October, 2011.
10 M/S. Saudi Arabian Airlines v. Mrs. Shehnaz Mudbhatkal & Another, (1999) 1 BOMLR 687; See also:
http://www.hindustantimes.com/news/specials/couch/cases.htm, last visited on: 10th October, 2011.
? In another case of 1994, Doordarshan (Hyderabad) producer
Sailaja Suman took director P L Chawla to court on charges of
defamation, criminal intimidation and trying to outrage her
modesty. She filed two separate cases in the metropolitan
magistrate’s court. She met with zero support from her
colleagues. And rather unfortunately, Suman was transferred to
Lucknow.11
? Yet another case where grave injustice was done, where Nutan
Sharma, a steno in the Union Ministry of Railways, was
transferred, following her complaint that R P Sharma, secretary
to the Chief Operating Manager, molested her.
? Even Alisha Chinai’s suit against music composer Anu
Malik, demanding Rs. 26,60,000 as damages for sexual harassment,
met with a similar fate. And since he wasn’t convicted,
Malik in turn, filed a Rs. 2 crore defamation suit.
? A very well-known instance of a woman who faced sexual
harassment at workplace taking the help of the law to teach the
harasser a lesson is that of Rupan Deol Bajaj. She was slapped on
the bottom by the then DGP of Punjab, K P S Gill. Accusing him of
indecent behaviour, Bajaj fought an 8-year legal battle. The hard
work paid off. Gill was convicted and sentenced to three months
Rigorous Imprisonment.12
? A recent case which again has brought the debate on sexual
harassment at workplace in focus is the death of the woman CEO of
a tea company in Jaipur on 11th June,
2011. She committed suicide leaving behind a suicide note that on
June 8th, 2011 the M.D. of her company G. K. Dalmia and his
friend Sunil Jain raped her after having drugged her in the flat.
She mentioned that the accused (G. K. Dalmia) wanted her to clear
some company documents with financial irregularities which she
refused. To teach her a lesson she was raped.13
A big question which was raised in media was that in this clear
case of sexual harassment at workplace for women, if she had not
committed suicide and then reported the matter to police or
government authorities, would the police still have written a
rape complaint and would the authenticity of a rape charge been
believed? Just to make a working woman’s voice heard in our
society, if we need to commit suicide for no offence of ours then
what
11 Subhashree Panda, “Working Woes”, http://www.orissa.gov.in/e-magazine/Orissareview/2009/Feb-
Mar/engpdf/20-23.pdf, last visited on: 10th October, 2011.
12 Mrs. Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill & Anr, 1995 SCC (6) 194.
13 http://www.sexualharassmentatworkplace.org/sexual-harassment-again-worki..., last visited on: 10th October, 2011.
no justice exists for them in India. Another question that
comes up is such incidents have a very bad affect on a
woman’s self-respect and dignity. Is their any safety
against the persecution that might lay ahead for her if she does
not leave or is not in position of resigning her present job?
A look at the above instances tells us how the trend of these
judicial decisions is not too favourable towards the victims of
sexual harassment at workplace. Both the sides of coin are
equally heavy and we have some positive judgements on one hand
and some highly negative judgements.
4.5 Is the bill prohibiting sexual harassment at workplace a step in the right direction?
The salient features of the Prohibition of Sexual Harassment
of Women at Workplace Bill, 2010 are:
? The Bill proposes a definition of sexual harassment as laid
down in Vishaka and additionally recognises the promise or
threat to a woman’s employment prospects or creation of
hostile work environment as ‘sexual harassment’ at
workplace and expressly seeks to prohibit such acts.
? The section 2 clause 1 of the bill provides protection not only
to women who are employed but also to any woman who enters the
workplace as a client, customer, apprentice, and daily wageworker
or in ad-hoc capacity. Students, research scholars in
colleges/university and patients in hospitals have also been
covered. Further, the Bill seeks to cover workplaces in the
unorganised sectors.
? The Bill provides for an effective complaints and redressal
mechanism.14
? Failure of the employers to comply with the provisions of the
proposed Bill will attract a punishment of a fine which may
extend to Rs. 50,000 under S. 27(1).
? Since there is a possibility that during the pendency of the
enquiry the woman may be subject to threat and aggression, she
has been given the option to seek interim relief in the
14 See: Chapter II, III and IV of the proposed Bill. Herein, every employer is required to constitute an Internal Complaints Committee. Since a large number of the establishments (41.2 million out of 41.83 million as per Economic Census, 2005) in our country have less than 10 workers for whom it may not be feasible to set up an Internal Complaints Committee (ICC), the Bill provides for setting up of Local Complaints Committee (LCC) to be constituted by the designated District Officer at the district or sub-district levels, depending upon the need. This twin mechanism would ensure that women in any workplace, irrespective of its size or nature, have access to a redressal mechanism. The LCCs will enquire into the complaints of sexual harassment and recommend action to the employer or District Officer.
form of transfer either of her own or the respondent or seek
leave from work under S.
10(1)(c).
? The Complaint Committees are required to complete the enquiry
within 90 days and a period of 60 days has been given to the
employer/District Officer for implementation of the
recommendations of the Committee under S. 9(3).
? Section 16 of the bill provides for safeguards in case of false
or malicious complaint of sexual harassment. However, mere
inability to substantiate the complaint or provide adequate proof
would not make the complainant liable for punishment.
But the bill suffers from a few drawbacks which can obstruct its
effective functioning:
? The provision which penalizes the complainant if the committee
concludes that the allegation made is false or malicious creates
the opportunity for employers to manipulate the committee and may
also dissuade women from making complaints due to the fear that
they will be penalized.
? There is also some doubt whether the Bill is applicable to
minors in the workplace as the term ‘aggrieved woman’
is not defined such that it can be said with certainty whether
this is applicable to child workers. Even domestic workers have
been excluded from its purview.
? Although unorganized sector finds mention, the Bill seems to be
still largely couched in terms of the organized sector
establishments.
? The provision that deals with the confidentiality of the
identity of the woman may actually work against her. This is
because no provision has been included to inform the woman about
the progress of the enquiry. It must be ensured that a copy of
the of the complaint enquiry report and the recommendations of
the committee are made available to the victim upon her request
on completion of proceedings.
Though this bill is a laudable attempt at addressing the problem
of sexual harassment at workplace, it remains to be seen that if
the bill is passed, it would be able to tackle the issue at
hand.
4.4 Perceptions of Sexual Harassment at Workplace
The topic of sexual harassment is generally met with
discomfort, denial and fear of reprisals and some judgmental
attitudes about women provoking the incident. And women often
perceive
sexual harassment as normal behaviour, an occupational hazard,
and even harmless.15 Most women tend to
dismiss the sexual harassment incidents as normal and harmless.
In fact it leads to a blame game and women interpret the
behaviour as “normal” and do not react. They start
interpreting their own feelings of shame, embarrassment or unease
with the situation as deviations from the normal. Avoidance of
the harasser or harassing situation is a widespread form of
adaptation. The pressure on women, especially in male-dominated
working environments, not to show feelings that would be
perceived as weakness leads women to hide their feelings of
offence and hurt. In addition, women identify with the aggressors
and try to think and feel “like men”, and thus not be
vulnerable to behaviour and remarks that devalue women.
Especially verbal harassment is not even counted as sexual
harassment.16
They do not even know what all would constitute harassment. There
are so many fears which are impediments in the women’s
raising their voice against the harassers. The fear of not being
understood, the fear of the reaction of colleagues, feelings of
helplessness, or feelings of dependency keep women from reacting
on the spot and from confronting harassers. In addition, to be
dependent on supervisors who are harassing them is an even
greater problem if women have the impression that sexual
harassment is tolerated within the organisation.17 Women just chose to turn a blind eye to this
menace.
15 Paramita Chaudhuri, “Sexual Harassment in the Workplace”, Available at:
http://www.popcouncil.org/pdfs/wp/India_HPIF/001.pdf, last visited on 2nd October, 2011.
16 http://www.un.org/womenwatch/osagi/pdf/shworkpl.pdf, p. 86, last visited on: 1st October, 2011.
17 Ibid.
CHAPTER FIVE: CONCLUSION
The experience of harassment can be overwhelming for the victim.
People often react with shock, humiliation, and intense anger.
Therefore, the victim of harassment may not always feel
comfortable going through the normal channels for resolving such
a problem. It is the brave few who gather the guts to come up and
talk about this problem openly in front of rest of the world. But
as seen from the research findings more often than not their
courage is slammed and suppressed. There are women organisations
working in this area but their contribution can be just to bring
out women in the open and encourage them to narrate their
experiences but the judicial lacuna remains still. We do not have
a substantive law to deal with the problem and this will continue
to affect the problem at hand.
The study aimed at exploring what is known about sexual
harassment taking a multi- disciplinary approach and identifying,
amongst other things, the workplace culture in which it occurs,
the characteristics of those who suffer harassment and the
harasser, and policy measures designed to prevent and deal with
harassment by means of review of literature and also identified
gaps in knowledge.
But research findings mainly dealt with finding out how the
problem plays itself out in the real world and whether the
ineffective legal safeguards have been effective enough. Clearly,
the “law” has failed to redress the problem. A
general review of literature showed that most women in India,
especially when we look at the rural and semi-urban class or the
lower uneducated strata, are not even aware of their rights
available against this menace of sexual harassment in the
workplace. Findings also suggest that attitudes to sexual
harassment in the workplace mirror society’s norms about
sexuality and masculinity more generally- that it is normal and
harmless behaviour, that it is women who provoke this behaviour
and that it is an occupational hazard for women in the workplace.
It often gets dismissed for being harmless or is simply
ignored.
The only way to solve this is to bring about a huge attitudinal
change in the women in the country. When they have broken the
shackles enough so as to be accepting work challenges they should
garner courage to speak against these wrongdoings too.
To conclude, I see a variety of reasons responsible for the
current endorsement of a culture of silence and denial which in
effect renders the legal machinery ineffective. Most
women are not aware of the Supreme Court guidelines and
complaints mechanisms/formal institutions of redress. The
societal attitude that would blame them for provoking an incident
or the loss of their reputation as a result of complaining is
another thing which sounds a plausible reason which women might
be afraid of. This is a harsh reality but most women who undergo
the trauma of sexual harassment at workplace are in powerless
positions and might fear job-related discrimination, including
dismissal, and withholding of promotions and income. Also the
fact that perpetrators are individuals who are in positions of
authority further dampens their will to initiate action against
them, which is bound to fail.
The Supreme Court guidelines in Vishaka might have opened
up the discourse on sexual harassment at the workplace, but it is
clear that much remains to be done to address gender stereotyping
and harassment in the working environment and to ensure that
women have recourse to effective resolution of complaints. There
needs to be awareness of the inappropriateness of sexual
harassment and the rights of women workers is created and worked
into the conduct rules for employees at all levels, irrespective
of their positions. The prohibition of SHW bill needs to be
pushed further with the rectifications of the flaws pointed in
the previous chapter. I believe that the need of the hour is a
broader canvassing of the issue, for people to be aware of the
Guidelines and the Bill, and for employers to draft policies and
create systems to check sexual harassment at work. There seems to
be a consensus among the drafters on the following points:
greater need of decentralization of punitive power; more and
easily accessible complaints committees; arming the committee
with more teeth; instituting a time- bound and clearly defined
punitive process; and rendering the employer liable for
inaction.18
Non Governmental Organisations and women organisation are doing
their share, but in order to make sure that the message reaches a
larger audience we need to have every organisation taking up
these cudgels. Confidence building is another area which needs to
be worked upon so that coming out of the cocoon and filing a
complaint is an easier process for the women. All in all, what
may be concluded is that Law and sociology have a rather complex
relation and legal developments precede sociological and
attitudinal changes. Hence a fair mix of both sociological
changes and legal advancement is required to solve the problem of
sexual harassment at workplace.
18 http://articles.timesofindia.indiatimes.com/2011-08-26/mumbai/29930749_1... sexual-harassment-complaints-committees, last visited on: 10th October, 2011.
BOOKS AND ARTICLES REFERRED TO:
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About Anjali Rawat
Anjali Rawat is currently a third year student of law NALSAR University, Hyderabad. She is the topper of her batch in college and is an active member of gender and sexuality forum of NALSAR University. She has engaged in a broad spectrum of issues in gender and sexuality studies but has special interest in issues which affect women in India. Her areas of research so far have been legal analysis of rape in India, honour crimes, sexual harassment and reality of transgender living.
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