Law Relating to Workplace Sexual Harassment
“Freedom cannot be achieved unless women have been emancipated from all forms of oppression… Our endeavors must be about the liberation of the woman, the emancipation of the man and the liberty of the child.”-Nelson Mandela
Sexual harassment at workplace(SHW) such as coercion of sexual nature, violence and inappropriate promise of rewards in the form of promotion and salary hikes in exchange of sexual favors at workplaces is a gross violation of women’s rights inflicting regression on the development of 3.5 billion women in the world and therefore, acting as an impediment to women empowerment. Sexual harassment against women at workplaces by their supervisors and fellow employees trigger devastating physical and psychological injuries while reinforcing the subordination of women to men in the society by violating her dignity and creating health as well as safety hazard at work making a huge chunk of population vulnerable to sicut erat in principio, et nunc, et semper oppression. This disquisition will be examining the evolution of law concerning sexual harassment of women at workplace, its expression in national, international and foreign law and, later, the appropriateness, alternatives and solution for the elimination of concerned problem.
Sexual harassment is any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature affecting, whether explicitly or implicitly, an individual's employment and interfering unreasonably with an individual's work performance by creating an intimidating, hostile, or offensive work environment. Sexism, sex discrimination, sexual misconduct, quid pro quo harassment and hostile working environment are some of the rampant practices amounting to SHW. An act of showing pornography, passing sexually colored remarks and non-verbal conduct of sexual nature was further added to the above definition by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,2013 (SHWA). S.2 (o) of SHWA specifically defines workplace bringing educational institutions within its ambit.
The evolution of the concept of ‘sexual harassment’, coined and popularized by Lin Farley could be traced to 1975 during a testimony before the New York Human Rights Commission Hearings on Women and Work. Lin Farley’s ‘Sexual Shape down: The Sexual Harassment of Women on the Job’ which made people conscious of sexual harassment as a social problem and Catharine Mackinnon’s book ‘Sexual Harassment of Working Women’ which threw light on the legal ways to compensate the victim, prepared the groundwork for the guidelines established by Equal Employment Opportunity Commission in US in 1980 followed by passage of state legislations.
The issue of SHW was first raised in India in the year 1979 in a cover article in Manushi, a feminist magazine focusing on the harassment of women students and teachers at Delhi University. Followed by the SC’s controversial decision in Tukaram v State of Maharashtra wherein it acquitted the constables on the ground that Mathura, who was raped in police custody, had consented to the sexual intercourse for she didn’t show any physical resistance which led to widespread uproar while questioning the reasoning and credibility of the SC. An ignorance by judiciary of issues such as the consideration of victim’s sexual history in rape trials and continued focus on penetration in the definition of rape led to ‘Forum against the Oppression of Women’ in the year 1990 which advocated for a new definition of rape focusing on the lacunae in legal reform. Vishaka v. State of Rajasthan and Ors. which provided guidelines and recognition for legal reform of SHW is a case wherein Bhanwari Devi, a social worker, was brutally gang-raped preceded by months of sexual harassment distinguishing sexual harassment from rape in the form of an expansion of the legal notions of women's oppression from the act of penetration to sexual harassment which involved power dynamics.
1) UN General Assembly Resolution of Declaration on the Elimination of Violence Against Women-
Art.2(b) of the resolution prohibits SHW and elsewhere as violence against women while Arts. 4(d)-4(f) call for penal, civil and other administrative sanctions and preventive approaches to eradicate violence against women.
2) Convention on the Elimination of all Forms of Discrimination against Women- Arts. 7-16 direct nations to take steps to eliminate discrimination and inequalities against women in sociological, political, healthcare, education, economic and in other areas of public sphere.
3) Beijing Platform for Action- Para.178 of the Declaration recognizes sexual harassment as a form of violence against women and as a form of discrimination calling on political players to enact and enforce laws on sexual harassment while obliging employers to plan anti-harassment policies and strategies.
Discrimination (Employment and Occupation) Convention of 1958- The ILO committee recognized sexual harassment as a form of gender discrimination, while the ILO’s Indigenous and Tribal Peoples Convention explicitly prohibited SHW.
1) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa- Arts. 12-13 obligate the state parties to take appropriate measures to eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training and protect women from all forms of abuse (including sexual harassment). Also, there should be transparency in recruitment, promotion and dismissal of women in order to combat and punish sexual harassment in education and the workplace.
2) Southern African Development Community Protocol on Gender and Development- Article 22 requires the states parties to enact legislative provisions, and adopt and implement policies, strategies, and programs which define and prohibit sexual harassment in all by 2015.
The Charter of Fundamental Rights of the European Union-
The charter specifically enshrines freedom from sex-based discrimination and Art.23 puts an obligation upon the states to ensure equality between men and women in all areas, further elaborated through several directives dealing with sexual harassment.
Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women- The convention envisaged right of women to include freedom from SHW and violence against women with Art. 2 declaring SHW as violence against women.
Art.14 of the Indian Constitution provides for equality before law in all walks of life whereas Art.15 creates an obligation on the State for sex-based non-discrimination. Our Founding fathers, recognizing the gender differences present in the Indian society, framed Art.15 (3) in an affirmative language empowering the states to make special legislations for the recognition of women as a class. Art.16 embodies the right to equal opportunity for all citizens in employment and Art.15 (1), along with 16(1) make it a constitutional obligation to facilitate socio-political advancement of women. Art.39(a), 39(d), 39(e), 42 and 51 ascribes rights, duties upon the state and imposed certain duties upon the citizen with respect to women while Art.19 (1)(g) guarantees their freedom to practice any profession. Art.21 which espouses the fundamental right of life and liberty enshrines security and a dignified life for women and Art.51A (e) imposes a duty on every citizen to uphold the dignity of women which, when read along with Art.14 will result in inequitable consequences affecting the dignity of women if they are, irrationally, denied the right to employment and economic independence.
2) Indian Penal Code of 1860 and Criminal Law (Amendment) Act, 2013
Section (S.)354 of IPC, in case of assault or criminal force committed with the deliberate intention to outrage the modesty of women, penalizes for a term not less than 1 year extending up to 5 years along with fine. S.509 which punishes any word, act, or gesture intended to insult the modesty of women provides for simple imprisonment for a term extending up to 3 years along with fine though the term ‘modesty’, used frequently, hasn’t been defined.
Introduction of new sections such as 354A, 354B, 354C and 354D by Criminal Law (Amendment) Act, 2013 specifically deals with sexual harassment, disrobe, voyeurism and stalking in relation to SHW whereas an act of physical and sexual assault is dealt with in S.375, S.376, 376A, S.376D, 326A & 362B with a punishment of one year along with fine extending to death sentence under the Act. S.166A compels the public servants to take cognizance of the offence failing which a punishment ranging from six months to two years of imprisonment along with a fine could be imposed.
3) Equal Remuneration Act, 1976-
The Act advocates non-discrimination on the basis of gender in matters related to fixing wages and determining transfers, training and promotion, guaranteeing equal remuneration for men and women for a work of similar nature.
4) The Industrial Disputes Act, 1947-
A worker can approach the labor tribunal in case of wrongful dismissal as a consequence of non-compliance with sexual demands of the employer. The statute also defines the term ‘unfair labor practices’, which can be interpreted to bring in sexual harassment.
5) The Industrial Employment (Standing Orders) Act, 1946-
The Act creates a mandatory obligation on the employers to define and intimate the working conditions of employees. Substantive law of the Standing Orders classify acts of sexual harassment amounting to misconduct which might result in suspension or dismissal.
6) The Indecent Representation of Women (Prohibition) Act, 1986-
Harassment by an individual through books, photographs, paintings, films, pamphlets, or packages, etc. that contain an indecent representation of women is punishable by a minimum sentence of two years. Under S.7 of the Act, companies come within the realm of this law and therefore, a sentence of two years can be imposed on accused. Civil suits under tort laws on grounds of SHW resulting in loss of income, livelihood and employment is dealt with in the act.
7) The Factories Act, 1948-
S.19 of the Act provides for separate toilet and washing room for men and women. Also, every employer employing more than thirty female workers is under an obligation under S.48(1) to provide a crèche for the use of their children below six year of age. S.66 restricts women to work in any factory except between 6 A.M. and 7 P.M. and under no circumstances would she be authorized to work between 10 P.M. and 5 A.M. while under S.56, no woman shall be required to work in a factory for more than 9 hours a day.
8) Maternity Benefit Act, 1961- This act facilitates women to meet the challenges of motherhood by safeguarding her from unemployment and preventing her from doing any work which adversely affects her and the unborn child’s health in order to ensure security, safety and favorable environment in workplace for women.
9) Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (SHWA), 2013-
SHWA, which provides an extensive definition of ‘workplace’ and ‘employee’, is applicable to both organized and unorganized sector throughout India. The Act requires an employer to set up an 'Internal Complaints Committee' in each office employing at least 10 employees whereas ‘Local Complaints Committees' should be set up at district level to investigate complaints regarding sexual harassment in government sector. The Act also talks about the constitution of such committees, process for making a complaint and inquiring into the same while empowering the committee to recommend to the employer to provide interim measures to the aggrieved employee, at her request. The law permits female employees to either go for conciliation to settle the matter or to proceed with the inquiry. A failure to constitute the Internal Complaints Committee calls for a penalty of Rs. 50,000 whereas in case of repetition, punishment is doubled and / or de-registration of the entity or revocation of any statutory business licenses.
Bullying and harassment, under UK law, is an unwanted behavior which makes someone feel intimidated or offended by spreading malicious rumors, unfair treatment and denying an individual of promotion opportunities. Though bullying per se isn’t illegal, harassment is unlawful under the Equality Act, 2010 which if employees are unable to sort out by themselves or with the help of their manager, HR department or trade union representative should make a formal complaint in accordance with their employer’s grievance procedure further which they can, as the last resort, take legal action at an employment tribunal.
The Protection of Women’s Rights Law, addressing the sexual harassment, was passed in 2007 which sought to foster gender equality by prohibiting sexual harassment of women by their male superiors wherein the aggrieved party has the right to report the matter to the authorities. Though sexual harassment hasn’t been defined in the legislation, provincial laws such as the Shanxi Province’s measures to implement the Protection of Women’s Rights Law define sexual harassment as sexual advances such as sharing details of pornographic movies and sending lewd messages without consent giving a wider definition as compared to the Shanghai’s draft bill wherein it is illegal to make unwanted sexual advances such as groping women in public and using sexually suggestive language. The Sichuan Province’s law reinforces the traditional Chinese ideology of “hongyan houshui” specifically prohibits male political leaders from employing female secretaries, denying equal employment opportunities to women by law.
100 to 200 million women have been victims of SHW who constitute 45% of China’s workforce. In Australia, 21% of women, have experienced SHW whereas anywhere between 30%-50% of women are victims of sexual harassment in the EU, 1 in 2 in the UK, 1 in 4 at the US workplaces and a staggering 34%-78% in the US military. According to ILO figures for Latin American countries, 30%-50% of women workers have suffered from some form of SHW.
In India, offenses under S.354 and 509 of IPC saw an increase by 5.5% and 7%, respectively, over 2012. The proportion of women-centric crimes increased from 8.9% in the year 2008 to 9.4% during 2012 with a conviction rate of 21%.
“Woman must not accept; she must challenge. She must not be awed by that which has been built up around her; she must reverence that woman in her which struggles for expression.” -Margaret Sanger
SHW acts as a tool for the oppression of women and hence, it is women’s right to object to her ill-treatment at workplaces and strive to express her freely, without any fear. The aim of law is to prosecute offenders and render justice to the victim, though much remains to be done to improve the situation of women at workplaces. Therefore, it is the duty of the society to publicize the concerns about SHW and establish a society, free from gender-based discrimination, on the principle of natural law.
“If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”-Desmond Tutu
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# Barry S. Roberts & Richard A. Mann, “Sexual Harassment in the Workplace: A Primer” 29 ALR 283 (1995-96).
# The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013)
# Catharine A. MacKinnon and Reva B. Siegel, Directions in Sexual Harassment Law 8 (Yale University Press, 2004).
# Enid Enmy, “Sex advances on job investigated” Wilmington Morning Star, Aug. 20, 1975.
# Barbara A. Gutek, “The Discovery of Sexual Harassment” 6 NDJL 336 (1992).
# Madhavi Sunder, “In a “Fragile space”: Sexual Harassment and the Construction of Indian Feminism”, 18 Law & Pol’y 422 (1996).
# Tukaram v State of Maharashtra, 1978 Cri LJ 1864 (SC)
# Supra note 14 at P.423.
# AIR 1997 SC 3011.
# Supra note 14 at P.424.
# United Nations Development Fund for Women and The Advocates for Human Rights: Developing Legislation on Violence against Women and Girls (May 2011).
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# The Criminal Law (Amendment) Act, 2013 (Act 13 of 2013)
# The Indian Penal Code, 1860 (Act 45 of 1860)
# Equal Remuneration Act, 1976 (Act 25 of 1976)
# The Industrial Disputes Act, 1947 (Act 14 of 1947)
# The Industrial Employment (Standing Orders) Act, 1946 (Act 20 of 1946)
# The Indecent Representation of Women (Prohibition) Act, 1986 (Act 60 of 1986)
# The Factories Act, 1948 (Act 63 of 1948)
# Maternity Benefit Act, 1961 (Act 53 of 1961)
# Supra note 7.
# id. at Ch. 2.
# id. at Ch. 3.
# id. at Ch. 5.
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# D.K. Srivastava & Minkang Gu, “Law and Policy Issues on Sexual Harassment in China: Comparative Perspectives” 11,43 ORIL 53 (2009).
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