SEXUAL HARASSMENT AT WORKPLACE
The United Nations has recognized sexual harassment as a form of discrimination and violence against women. In fact under the General Assembly resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women (Art. 4(d-f)). By this definition we can clearly observe that sexual harassment includes workplace of any women and encourages nations to form provisions to tackle the problem. The Indian law being inspired by this definition has defined sexual harassment of workplace in the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 which states that sexual harassment refers to unwelcome sexually tinted behaviour, whether directly or by implication, such as: -
(i) Physical contact and advances,
(ii) Demand or request for sexual favours,
(iii) Making sexually coloured remarks
(iv) Showing pornography,
(v) Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
There are two reasons necessarily how sexual harassment takes place. This can also be referred to as the types of sexual harassment. The first type of sexual harassment is “Quid pro-quo”. When translated in English it means “ a favour for a favour”. The way it is used in workplaces is when an employer induces his workers or any individual to provide him with sexual favours in return of a promotion or preferential treatment in the organisation. Under section 3 clause (2) of the POSH act it has been mentioned that when preferential treatment is promised by the employer in exchange of sexual favours it amounts to sexual harassment at workplace. If the employee does not agree to this and refuses to provide sexual favours in exchange of a promotion then the employer takes the second step which is to either the punish the employee with an excessive workload or refuse promotion even though all criteria is met and the worst being removal or dismissing an employee on false grounds such as low performance or misconduct.
Here also the employee can appeal to the court by filing a case as the POSH act states under section 3 clause (2) sub clause (ii) and (iii) that any detrimental behaviour by the employer or threat by the employer to the employee regarding her employment status may also amount to sexual harassment. Under the ambit of the POSH act an employer may be described as a person who is responsible for the management, supervision and control of the workplace.
Another way sexual harassment is promulgated is by hostile working conditions. This means that the environment at the workplace makes it impossible for women to continue their employment in that particular organisation. There are certain examples of this problem such as unwelcoming sexual behaviour against the women which makes it difficult for her to work. Under the POSH act this also amounts to sexual harassment as mentioned under section 3 clause (2) sub clause (iv) which states that any employer who interferes with the work of an employee by creating a hostile environment or intimidates the employee will be held responsible. An example of intimidation may be when a man is harassing a woman he is necessarily not annoying her but reminding the women of her vulnerability which makes it difficult for the women to do her job.
Another example of hostile environment would be derogatory remarks regarding the colour of the female, describing the dressing sense of a female sexually, writing or forwarding emails containing sexual content including pornography or making noises which are sexual in nature such as the sound of kisses through one’s lips. It is believed that such sexual behaviour in a normal circumstance will lead to the women feeling uncomfortable and this kind of treatment is bound to affect the health and stability of a woman’s life. The women is protected by the POSH act which mentions under section 3 clause (2) sub clause (v) any employer who humiliates the women leading to bad heath and feeling unsafe would have committed the act of sexual harassment.
Earlier the concept of sexual harassment was not as concrete as it is now. The concept was perceived differently by different individuals. The society as a whole believed that after a point of time you have to “sleep with someone” to advance your cause in an organisation. Thus, there were three reasons why sexual harassment in the workplace actually became a global phenomenon as we know it today. The three key points are: -
1. Earlier an individual particularly a man felt that he was entitled to certain things in his life which included food, clothing, shelter and employment. But later man also started feeling that he was entitled to be close with the people he works with. This concept grew further where the man finally started believing that he was entitled to touch and hold a woman physically as she works for him or with him.
2. In India there always existed the problem of “ hiding facts”. This means that whenever a woman was sexually assaulted at her workplace she did not reveal anything to the outside world due to the fear of embarrassment and a bad name for the family. Revealing such information would also have made it difficult for the family to get the girl married and even if this happened the family would have been required to pay a huge amount of dowry as a consolation for acceptance of the girl.
3. The final reason why acts multiplied in the future was that men were not held liable for their acts and were never corrected by his family members. In fact, there are many cases in which the women was still held responsible even though the man may have been in a position of power and may have committed the act without the consent of the women. In fact, in one of the cases where the women approached a senior to complain about her manager’s sexual advances the senior dismissed her from her role. In another case that took place in 2012 a former Haryana minister and businessman was held responsible for sexually assaulting an air hostess of his airline. He went underground for ten days after the publication of this news and later surrendered himself. He came out of jail one and a half years later and again joined a political party. This goes to prove that though the man was arrested for sexual assault yet a year later he came back and was supported by people and was brought back to power which shows us that in the Indian scenario though a man commits the act of sexual assault yet he is not ostracized by society the way a woman is.
For all these reasons women hesitated to complain against sexual harassment and this is why sexual harassment started growing in the workplace. But a question to be asked is why do men indulge in such practices when they clearly understand what they are doing is false? The answer to this question is multi- dimensional: -
· Male Ego
In the olden times there was a system of patriarchy all around the world. Patriarchy as a concept refers to a social system in which men are predominantly in power and head all important institutions of society. They were considered to be the bread winners of the family and thus enjoyed a high self-esteem in society. Women on the other hand were looked down upon as individuals who depended on men for their existence. This indicates that there were some traditional roles in society and then suddenly there was a wave of feminism which questioned these roles. The wave advocated for equal rights and opportunity in society for both men and women. This changed the perception of men in society and took a hit of their respect and esteem in society.
· Insecurity in men regarding their position in the workplace
In the ancient times as stated before men enjoyed sole authority in the matters of employment and due to not facing any competition they became complacent and very confident in certainty of their jobs and position at work. But this was changed by the feminist drive for economic equality. Though women’s entry into jobs was a result of necessity since many families could not make ends meet if the husband and wife did not work full-time yet it was perceived as a threat by men. Thus, men started using sexual harassment as a way to harass women to express their resentment and try to reassert control as they started viewing women as economic competitors.
TESTS FOR SEXUAL HARASSMENT
There were two tests conducted by different researchers covering the ambit of sexual harassment. The first test was conducted by John Maner and Kunstman. In this experiment they had 74 participants who were divided into teams of two. They were later told to do an exercise where one person acted as a superior and the other was the subordinate. The test was conducted to see whether sexual arousal was a result of one person dominating the other and having the power to do so. The test concluded that "power over an opposite-sex subordinate led to heightened perceptions of sexual desire from the subordinate." In turn, this led to the leader engaging in "greater sexualized behaviour within a face-to-face social interaction" with his partner.
Another test was conducted by John Pryor who was a professor at the department of psychology in Illinois state university. He conducted the test in 1987 to reason out why men sexually harass females. His test was called “likelihood to sexually harass” where he had 10 scenarios to judge how the man would react to these and whether he had an intention to harass. Through his experiment it was proved that a man in power is more likely to dominate the women if he believes that she owes him something for his job.
Slowly there has been a change in the way society looks at sexual harassment at workplace. We have started developing laws that protect women and allow them to speak up regarding any unwanted advances or gestures made against them without the fear of losing their job or facing problems in their employment. In fact, the trend started changing in the early 1990s and specifically in India, companies started paying attention to the menace of sexual harassment. In one of the cases the CEO of Infosys was removed out of his position after two women brought a suit for sexual harassment at workplace and the company settled the case for 3 million dollars and fired the employee. Though the employee denied that he was involved in any sexual behaviour yet an inference could be made to the fact that no company will settle for such a large amount without any proof.
The Vishaka Judgement
The change under the Indian scenario came in the year 1992 because of the Vishaka Judgement. Sexual harassment under the UN has always been seen as a form of discrimination and under Indian law also it is seen as a phenomenon that promulgates discrimination between genders which is violative of fundamental rights under the Indian constitution. But the government did not pay enough attention to the menace of sexual harassment until the Vishaka judgement. The facts of the case are that there was a woman named Bhanwari Devi who was a social activist/ worker in one of Rajasthan’s villages. She was against the concept of child marriage and tried to stop the marriage on an infant which was later performed. After this she was gangraped by the members of that family in front of her husband. She was taunted by the police constables in the station and the doctor refused to examine her.
The trial court dismissed the case whereas the high court reversed the decision stating that gang rape had taken place. The case was taken to the supreme court by NGO’s and women activists. The supreme court delivering the judgement stated that the women was entitled to a healthy working environment and was fundamentally guaranteed a safe working sphere under article 19 of the Indian constitution. This case led to the formation of the Vishaka guidelines where the courts developed regulations defining sexual harassment at workplace, providing steps to tackle the problem and punishments for perpetrators. The main aim of the supreme court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at their workplace. The Vishaka guidelines laid down the following rules: -
1. Express prohibition of sexual harassment as defined under the judgement must be communicated to every employee and employer in the workplace through notification, publication and circulation in appropriate ways. This means that every person in an organisation must understand the seriousness of the offence and must be cautioned about the punishments that will be pronounced if found guilty.
2. 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.
3. If any of the offences are in relation to the Indian Penal Code (IPC) then the organisation will make sure that such punishment is given to the person by handing over the person to the concerned authority. In fact, under the IPC there are certain sections that relate to sexual harassment which are: -
Sexual harassment is unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favours, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks.
Punishment: Up to three years in prison, and a fine.
Forcing a woman to undress.
Punishment: From three to seven years in prison, and a fine.
Watching or capturing images of a woman without her consent (voyeurism).
Punishment: First conviction – one to three years in prison and a fine. More than one conviction – three to seven years in prison and a fine.
Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking).
Punishment: First conviction – up to three years in prison and a fine. More than one conviction – up to five years in prison and a fine.
4. The most important aspect of the Vishaka guidelines was to develop a complaint mechanism. As discussed before there were many women who did not report acts of sexual assault as they were scared of the repercussions it may have on their employment. Thus, under the guidelines it was laid down that an appropriate complaint mechanism should be created in the employer’s organisation for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
POST VISHAKA- OTHER JUDGEMENTS
Vishaka was probably the key that unlocked the doors to the problem of sexual harassment. After Vishaka many women came out in the open and started taking the help of the law due to facing situations which were mentioned under the Vishaka judgement as sexual harassment. The first case after the Vishaka Judgement involved the supreme court holding a superior officer liable for harassing a junior female employee. In this particular case the supreme court enlarged the definition of sexual harassment stating that for suing under sexual harassment physical contact was not considered to be necessary. The court also held that any act or attempt by a superior to molest the female may also amount to sexual harassment. This meant that a superior creating a hostile environment for the female or overburdening her due to her refusal of giving sexual favours also amounted to sexual harassment.
In subsequent cases it was seen that due to the Vishaka Guidelines many women raised their voices regarding sexual harassment in the workplace. But in one of the cases it was pointed out that the guidelines were not being effectively implemented. A letter was changed into a writ petition and the court ordered each state to show as to what it had done to uphold the Vishaka guidelines and any person who felt threatened still could approach the high court of that respective state directly. It ordered states to follow the steps to prevent sexual harassment as was laid down under the Vishaka judgement. Under the case of Mrs. Rupan Deol Bajaj v Kanwar Pal Singh Gill it was laid down that any kind of harassment or inconvenience to a woman’s private or public life will amount to the offence of sexual harassment.
In the case of Patel Rajendrakumar Natavarla vs State Of Gujarat it was held that State functionaries and private and public sector undertakings/ organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant - victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred.
Under the case of Union of India V Nisha Priya Bhatia, it was held that The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka guidelines. Similarly, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines.
Under a recent case heard in 2017 the court held that statement of the victim must be appreciated in the background of the entire case. The court in this particular case held that if the victim’s testimony inspires confidence which happened in the present case then the courts are obligated to rely on it. An unmarried lady officer of CRPF, in her probation period made the complaint against her official superior for harassing her in different way making remarks in respect of her performance alleging that he will crush her and will ruin her career etc. The conduct/behaviour of the petitioner gives a clear impression that he behaved with the respondent in the manner as alleged only because she was a lady officer subordinate to him. There is nothing else to make any other inference from the facts and circumstances of the case. This testimony clearly inspires the confidence of the court to take action as it clearly implies sexual harassment under the POSH act and according to the Vishaka guidelines.
THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
It is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha on 3 September 2012 and by Rajya Sabha (the upper on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013. This statute superseded the Vishaka Guidelines for prevention of sexual harassment introduced by the Supreme Court of India. The various features of the act are: -
1. One of the main features of the act is regarding the definition of an “aggrieved women”. Any women can file for sexual harassment irrespective of her age, employment status, whether she is in the organised or unorganized sector etc. this means that the act covers all women and extends to the entire country including Jammu and Kashmir.
2. Under the Vishaka judgement workspace covered only traditional office but under the POSH act of 2013 workspace also covers organisations, departments, units in any sector of any industry. In fact, in one of the cases the Delhi high court held that workspace cannot include only your traditional set up where an employer and employee work together but stated that in the advent of digitalization work from home as a concept has been rapidly growing where sitting at his/her residence a person can either communicate with his employer or employee. In fact, there are CEO’s who communicate through electronic medium to their employees sitting at their residence. Hence if a person sexually assaults an employee in his residence the term workspace will also apply to a person’s home.
INTERNAL COMPLAINTS COMMITTEE
3. One of the most important developments in the act was the setting of an Internal Complaints Committee (ICC) in every organisation for the redressal of complaints raised by women in the course of employment regarding sexual harassment. The committee would consist of one presiding officer, members and an external member. The term of these members shall not exceed 3 years. The presiding officer will be a woman at the senior most level of the organisation. The members will not be less than 2 and will be from the organisation. The selection of these members will depend upon their experience with social work and the legal knowledge they possess about sexual harassment as a concept. Finally, there will be an external member from an NGO or an organisation committed towards eliminating sexual harassment. It is the duty of the female to report the happening of harassment within three months of the incident. The committee should finish the enquiry within 90 days and must submit a report within 10 days of the completion of such enquiry.
4. When a woman wants to complain about any wrongdoing against her the committee under section 10 will try to resolve the matter amongst the people involved. Such matter should not be resolved through monetary compensation. If the woman refuses for conciliation then the committee under section 11 will institute an inquiry into the incident and find out whether there is prima facie evidence that can be made out in the case. If so the committee will hand over the case within seven days to the police under section 509 of the Indian Penal Code. Under the process of the enquiry the committee shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 190& when trying a suit in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath (b) requiring the discovery and production of documents
(c) any other matter which may be prescribed.
It has also been held in one of the cases that once the committee makes a decision regarding whether the act amounts to a punishable offence under law the management has no right to change the decision or influence the decision. It is the responsibility of the management to follow the direction given and the management can only decide the type of punishment to be given. In one of the cases the committee found a person guilty under sexual harassment and the management dismissed the employee.
For universities there was a procedure laid down in a particular case where the court held that when someone complains about sexual harassment in a university the following rules will apply: -
· Two persons to be nominated by the Vice Chancellor from a panel prepared by the Committee.
· One person with known contribution to gender issues to be nominated by the Vice Chancellor.
· The Chairperson (woman) to be nominated by the Vice Chancellor.
Under section 14 of the act if it is found by the internal committee after their enquiry that the allegation made by the women is malicious or the complaint was made by the woman even though she knew it is false then the committee may recommend to the employer to take action against the woman in relation to the rules and regulations of the organisation. In one of the cases the same incident took place where the court instituted contempt of court due to no evidence being presented by the woman of sexual assault. Under the case the doctor could not be convicted of sexual assault as his timings were different to the lady and they had never interacted.
The POSH Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:
i. Punishment prescribed under the service rules of the organization
ii. If the organization does not have service rules, disciplinary action including written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counselling session, or carrying out community service
iii. Deduction of compensation payable to the aggrieved woman from the wages of the respondent.
The POSH Act also envisages payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:
i. The mental trauma, pain, suffering and emotional distress caused to the aggrieved employee
ii. The loss in career opportunity due to the incident of sexual harassment
iii. Medical expenses incurred by the victim for physical/ psychiatric treatment
iv. The income and status of the alleged perpetrator
v. Feasibility of such payment in lump sum or in installments.
If the organisation fails to appoint an Internal Complaints Committee (ICC) there is a penalty of 50,000 rupees imposed on it and the organisation should immediately constitute a body for redressal of complaints. A repetition of the same offence could result in the punishment being doubled and/or de-registration of the entity or revocation of any statutory business licenses.
PROBLEM WITH THE POSH ACT
Under the POSH act all the laws are made with reference to women and to protect interests of women. The act fails to consider that in the 21st century even men can be sexually assaulted and no Indian law provides them the protection. This also carries with it another problem as it does not set a bar for what classifies as sexual assault. There is a growing tendency in the judiciary and the police system where if the women feels threatened an immediate enquiry is ordered into the problem and more or less the man is convicted. The law does not stop to understand the perspective of the man and is inclined towards women. Under one judgement it was stated that Complaints Committee to be headed by a woman and had also directed that 50% of members of the Complaints Committee should be female and exactly same is the composition of the Committee set up in Ordinance XV-D of the University which provides that the Chairperson is to be elected from among the members and would be a woman and at least 50% of the members in each of the categories specified in the Ordinance should be women. This indicates that the Ordinance was intended to apply only to the cases of sexual harassment of women and inquiry into the allegations of sexual harassment of males was not envisaged when the Ordinance was promulgated. In the growing era of offences taking place against men the act should be made gender neutral to include the other gender also.
Sexual harassment at workplace is highly prevalent in India and there is a need to provide a positive environment to the women workers. New strategies should be made by the employers and managers to protect the organisation from this evil. Government and employers should ensure that women should be treated equally and gender discrimination should not take place at the workplace. Effective implementation of the policies can reduce the manifestation and mutilation of the sexual harassment to the minimum. One organisation can alter its approach to handle sexual harassment by viewing other organisations tactic. This will reduce or eliminate glitches caused by this harmful transgression. In the end only thing is left to say which is that women should not accept anything as it is because now it’s the time to speak out against all the injustice done to them.
SYMBIOSIS LAW SCHOOL, PUNE