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Published : March 03, 2013 | Author : megha
Category : Workplace Equality & Non-Discrimination | Total Views : 9726 | Rating :

Megha Harshwal BBA LLB(IV Year) Symbiosis Law School

Sexual Harassment At Workplace

We are still carrying that legacy where women are treated as secondary to men. True, the times have changed with Industrial Revolution and then the technological advances; women have been recognized as equal to men all over. But the legacy which was carried from so many ages goes on and it takes time to change the mind sets of all Indians. The political system has to change and the entire systems ale customs like Sati etc. which are still rampant in some parts of India and yes the dowry system which is present everywhere have to go if women have to enjoy equal respect along with men. As long as these evil practices continue and till commercialization of women through each and every useless advertisement is practiced harassment of women not only in work place but in home, in street, in college everywhere will continue and male chauvinism tries to dominate the female submissiveness everywhere.

According to the Protection of Human Right Act, 1993 "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women as to live with dignity is a human right guaranteed by our constitution.

In India Sexual harassment has been termed as "Eve teasing" and is described as: unwelcome sexual gesture or behavior whether directly or indirectly as sexually colored remarks; physical contact and advances; showing pornography; a demand or request for sexual favors; any other unwelcome physical, verbal/non-verbal conduct being sexual in nature. The critical factor is the unwelcomed behavior, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator.

As per the Indian Constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution. Although there is no specific law against sexual harassment at workplace in India but many provisions in other legislations protect against sexual harassment at workplace, such as Section 354, IPC deals with “assault or criminal force to a woman with the intent to outrage her modesty, and Section 509, IPC deals with “word, gesture or act intended to insult the modesty of a woman.

What amounts to sexual harassment?
In 1997 in Vishaka Vs. State of Rajasthan and others, for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as

1. Sexually coloured remarks
2. Physical contact and advances
3. Showing pornography
4. A demand or request for sexual favours
5. Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.

It was in this landmark case that the sexual harassment was identified as a separate illegal behaviour. The critical factor in sexual harassment is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.

In any kind of organization i.e. government, private or public enterprises such kind of conduct creates an apprehension in the minds of the employees that if they don’t perform the work given to them they will be one the victims of sexual harassment and thereby it creates fear in their minds. On the other hands it is also the employer who might threat the employee regarding there transfer, promotion etc. and it has been seen in the corporates that the employer do ask for some kind of favour in order to give the job, transfer or promotion or for that matter in order to increase their salary. All this amounts to Sexual Harassment because it is done against the will of the person and the employees who are in need of the above things do agree to the terms of the employer.

In other words it can be said that, it is discriminatory 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 a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

Laws under which a case can be filed
In India there is no specific law relating to Sexual Harassment at workplace but there are certain sections in the Indian Penal Code (IPC) and Constitution and certain other laws and Acts that protect the women’s from sexual harassment at workplace and they are as follows:

Section 354, IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that:

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both.

In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.

Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place.

Section 509, IPC deals with word, gesture or act intended to insult the modesty of a woman and lays down that:

Whoever intending to insult the modesty of any woman utters any word, makes any sound or gesture, or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or both. (Cognizable and bailable offences).

Civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.

Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing "indecent representation of women"; they are liable for a minimum sentence of 2 years.

Section 7 (Offenses by Companies) holds companies where there has been "indecent representation of women" (such as the display of pornography) on the premises guilty of offenses under this act, with a minimum sentence of 2 years.

Early history of the use of the term “Sexual harassment”
The term sexual harassment was used in 1973 in a report to the then President and Chancellor of MIT about various forms of gender issues. In the book In Our Time: Memoir of a Revolution (1999), journalist Susan Brown miller quotes the Cornell activists who in 1975 thought they had coined the term sexual harassment: "Eight of them were sitting in an office ... brainstorming about what they were going to write on posters for their speak-out. They were referring to it as 'sexual intimidation,' 'sexual coercion,' 'sexual exploitation on the job.' None of those names seemed quite right. They wanted something that embraced a whole range of subtle and un-subtle persistent behaviors. Somebody came up with 'harassment.' 'Sexual harassment!' Instantly they agreed. That's what it was." These activists, Lin Farley, Susan Meyer, and Karen Sauvigne went on to form Working Women's Institute which, along with the Alliance against Sexual Coercion, founded in 1976 by Freada Klein, Lynn Wehrli, and Elizabeth Cohn-Stuntz, were among the pioneer organizations to bring sexual harassment to public attention in the late 1970s.

Harassment Situations

Sexual harassments can occur in a variety of circumstances. Often, but not always, the harasser is in a position of power or authority over the victim (due to differences in age, or social, political, educational or employment relationships). The harasser and the victim can be anyone and of any gender, such as a client, a co-worker, a teacher or professor, a student, a friend, or a stranger. The victim does not have to be the person directly harassed but can be anyone who finds the behavior offensive and is affected by it. Adverse effects on the target are common. The harasser does not have to be of the opposite sex. The harasser may be completely unaware that his or her behavior is offensive or constitutes sexual harassment or may be completely unaware that his or her actions could be unlawful. Misunderstanding can result from a situation where one thinks he/she is making themselves clear, but is not understood the way they intended. The misunderstanding can either be reasonable or unreasonable. An example of unreasonable is when a man holds a certain stereotypical view of a woman such that he did not understand the woman’s explicit message to stop.

Types of harassment

There is often more than one type of harassing behavior present, so a single harasser may fit more than one category. The different types of harassment could be; Stalking. Pest, Bully, Power-Player, Mother/Father figure (a.k.a the counselor helper), Groper, One-Of-The-Gang, Serial Harasser, Opportunist, Confidante, Situational Harasser etc.

Steps to be taken by the employers

In Vishaka Vs. State of Rajasthan and others, the Supreme Court in absence of any enacted law (which still remains absent- save the Supreme Court guidelines as stated hereunder) to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment, laid down the following guidelines:

All Employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined, above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules / regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1940.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. This is one of the most important factors that should be taken up seriously both by the employer and the government. The female employees should be made aware of the rights that are available to them relating to Sexual Harassment. In the metropolitan cities the female employees working in good companies and working at high level are very well about their rights but those females who are working at the low level and in small towns hardly know about their rights which they can exercise for any kind of sexual harassment thereby getting relief from the court as well as their dignity lost due to this harassment.

Effects of sexual harassment on organizations
Sexual Harassment has an adverse effect on the organization as the working enthusiasm of the sexually harassed female employee goes down, she is not able to work in the same way as she was before being harassed and thus she is not able to give her 100% to the organization thereby leading to decreased job satisfaction. This is only one the factor there might be loss of staff and expertise from resignations to avoid harassment or resignations/firings of alleged harassers; loss of students who leave school to avoid harassment. And the most important there might be decrease in the productivity level and increase in team conflicts. Decrease in success at meeting financial goals (because of team conflict) and this may lead to loss for the organization as they fail to achieve the goal of the organization. Some other problems that the organization has to face due to the harassment; Increased health care costs and sick pay costs because of the health consequences of harassment, the knowledge that harassment is permitted can undermine ethical standards and discipline in the organization in general, as staff and/or students lose respect for, and trust in, their seniors who indulge in, or turn a blind eye to, sexual harassment, if the problem is ignored, a company's or school's image can suffer, legal costs if the problem is ignored and complainants take the issue to court.

Some famous case laws relating to Sexual Harassment
One of the most famous case laws in the history of India relating to sexual harassment is Vishaka v State of Rajasthan and others, wherein for the first time the definition of sexual harassment was defined, certain guidelines pertaining to the employers were laid down, as to how their contribution in the organization could avoid sexual harassment of the female employees in the organization.

In this particular case a writ petition was filed by ‘Vishaka’- a non Governmental organization working for gender equality by way of PIL seeking enforcement of fundamental rights of working women under Article.21 of the Constitution.

case: A K. Chopra’s case, is the first case in which the Supreme Court applied the law laid down in Vishaka’s case and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council who was found guilty of sexual harassment of a subordinate female employee at the place of work on the ground that it violated her fundamental right guaranteed by Article.21 of the Constitution.

In both cases the Supreme Court observed, that " In cases involving Human Rights, the Courts must be alive to the International Conventions and Instruments as far as possible to give effect to the principles contained therein- such as the Convention on the Eradication of All forms of Discrimination Against Women, 1979 [CE DAW] and the Beijing Declaration directing all state parties to take appropriate measures to prevent such discrimination."

The guidelines and judgments have identified sexual harassment as a question of power exerted by the perpetrator on the victim. Therefore sexual harassment in addition to being a violation of the right to safe working conditions is also a violation of the right to bodily integrity of the woman.

In Rupan Deol Bajaj Vs. K PS.Gill, a senior IAS officer, Rupan Bajaj was slapped on the posterior by the then Chief of Police, Punjab- Mr. K P S.Gill at a dinner party in July 1988. Rupan Bajaj filed a suit against him, despite the public opinion that she was blowing it out of proportion, along with the attempts by all the senior officials of the state to suppress the matter.

The Supreme Court in January, 1998 fined Mr.K P S.Gill Rs.2.5 lacs in lieu of three months Rigorous Imprisonment under Sections. 294 and 509 of the Indian Penal Code.

In N Radhabai Vs. D. Ramchandran, Radhabai, Secretary to D Ramchandran, the then social minister for state protested against his abuse of girls in the welfare institutions, he attempted to molest her, which was followed by her dismissal. The Supreme Court in 1995 passed the judgment in her favour, with back pay and perks from the date of dismissal.

These are some of the famous case laws in the history of India which have completely justified sexual harassment at a workplace and held the accused liable, be it a Chief Police Officer or a Social minister.

Sexual Harassment at workplace, it’s not only the duty of the employer to make sure that the female employees are provided with the proper working conditions, rules and regulations etc. it’s also the duty of the female employees to make sure that where ever they are working is that a safe place, there is no kind of fear as to promotion, transfer, salary etc. if she refuses to take the offer given to her. It’s also their duty to make sure that they inform the management of the head of the organization if any kind of unwelcomed behavior is being noticed by them so that the organization can take the right step at the right time. The females working in corporate sectors the big cities like Delhi, Mumbai, and Bengaluru are very well aware about their rights or as or as to what steps should be taken if sexual harassment is done to them but then there are hardly any female employees working in small industries, villages where the rate of sexual harassment is high know about all the laws, rights and reliefs that are available for them. In the past three years there have been thirty police official who have been arrested for sexual harassment. Now if the helpers of the law are going to do this then what can we expect form the ordinary citizens. The Sexual Harassment at Workplace Bill 2010 focuses on women’s right to protection against sexual harassment at the workplace. The Passing of this bill will empower the women to action against the wrongdoer in a more powerful and stronger manner.

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