SEXUAL HARASSMENT OF WOMEN IN THE WORK PLACE

 Edited and Modified by Aadil.

INTRODUCTION

Women have been subjected to all kinds of physical exploitation for centuries. This exploitation has primarily taken place in the workplace, with women being manipulated and used for sexual favours. Women experience a wide range of sexual harassment at their workplace, ranging from sexist remarks to non-violent sexual contact and sometimes even violent sexual impositions. With the change in times, women started receiving more and more opportunities to excel in their career, but with it came the trouble of men attempting to exploit women to gain sexual favours.

Most women would prefer not to proceed with filing a criminal complaint as the process is time consuming and expensive. A large number of cases of sexual abuse go unreported in our country due to the traumatic trial procedure and the social stigma that is associated with sexual cases. Women are often exploited in their workplace by men who use their positions of power to impose sanctions on them in case of non- compliance. This gives women no other choice but to give in to their superior’s demands.

Almost all working women today are susceptible to sexual harassment irrespective of their position, type of employment, personal characteristics, etc. The Indian Constitution guarantees the right to pursue opportunities of employment for all genders. The truth is that most women who pursue such opportunities are employed in jobs like that of a personal secretary, nurse, telephone operators, receptionists, etc., all of which are jobs where their superiors are usually men of power.

This leads to situations where men exploit women by using their superiority as an advantage, punishing or rewarding women depending on how they react to their whims and ideas. Social scientists, Courts, and other conventions have in the recent past attempted to come up with a definition for sexual harassment, and have mostly succeeded in doing so, both from a physical and legal standpoint. The case of Vishaka v. State of Rajasthan (1997) can be considered the main catalyst in forcing the government to introduce new legislations in pursuit of the goal of providing women with the right a workplace that is free from abuse.

WHAT IS SEXUAL HARASSMENT?

Sexual harassment can be defined as a type of sexual violence, .i.e., any type of sexual activity or act that happened without consent. Although sexual harassment is generally considered to be a physical act, it need not be so. In fact, most cases of sexual harassment pertains to verbal abuse through the use of sexual remarks. Even negative comments to women as a group can constitute sexual harassment.

The landmark case of Vishaka v. State of Rajasthan (1997) formed the basis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. This act, generally called as the PoSH Act, defines sexual harassment to be any one or more of the following unwelcome acts or behaviour (either directly or impliedly):

1. Physical contact and advances;
2. Any demand or request for sexual favours;
3. The making of sexually coloured remarks;
4. Showing pornography;
5. Any other physical, verbal, or non-verbal conduct that is of a sexual nature.

SEXUAL HARASSMENT AT WORKPLACE

Sexual harassment at workplace essentially refers to any kind of sexual abuse to women, either physical or verbal, that happens at their workplace, and generally done by men of a superior position. There are mainly two types of sexual harassment:

1. Where your colleague targets you with unwelcome sexually suggestive comments, sexually coloured remarks, unwelcome and bothersome requests for dates, offensive gestures or any other kind of abuse that is targeted at the female gender. Such harassment leaves the victim traumatised and unable to continue doing their job.
2. The second kind of harassment at the workplace can be termed as quid pro quo harassment. Quid pro quo is defined as a favour or advantage that is granted in return for something. This kind of harassment usually occurs between an employer and his employee, wherein the employer is a man who presents the victim with offers of gain in return for unquestioning compliance. Such offers are also backed by sanctions in case of non-compliance.

As per the PoSH Act, any women who alleges to have been subjected to any act of sexual harassment, at either their workplace or any dwelling place or house where they are employed, can file a complaint against the same.

DUTIES AND LIABILITIES OF THE EMPLOYER

Every woman has the right towards a safe and respectful work environment, and it is the duty of the employers to ensure that they are provided the same. Every woman must be able to work and earn without the fear of being exploited because of their gender. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, understands this need and provides specific laws and rules to ensure that employers adhere to certain duties and liabilities to prevent sexual harassment at the workplace. Some of these duties and liabilities are:

1. ESTABLISH AND INTERNAL COMPLAINTS COMMITTEE (ICC)

   It is the duty of every employer under the PoSH Act to constitute an Internal Complaints Committee at each office or administrative unit. The duty of the ICC will be to receive and address complaints of sexual harassment at the workplace. This committee should be headed by a woman and a majority of its members (at least half) should be women. These members must be trained to effectively handle and efficiently dispose off cases of sexual harassment, while maintaining the sensitivity of the issue.

2. IMPLEMENT POLICY AGAINST SEXUAL HARASSMENT

   A comprehensive policy against sexual harassment must be developed and implemented by the employer, that clearly defines what constitutes sexual harassment, while providing examples of unacceptable behaviour, and also provide the procedure for filing complaints against the same. All employees in the work environment must be able to easily access this complaint mechanism, and the policy and its contents must be communicated effectively with all employees.

3. CONDUCT INTERNAL INQUIRIES

   When a complaint of sexual harassment at the workplace is received, it shall be the duty of the employer to conduct an internal inquiry against the same, while ensuring that it is completed within a reasonable time frame and adhering to the principles of natural justice. Both the complainant and the respondent must be given equal opportunity to present themselves, and the inquiry must be conducted in a fair manner without any inherent bias towards the complainant or the respondent.

4. TAKE ACTION IF FOUND GUILTY

   If the findings of the inquiry point towards the complaint being legitimate, it shall be the duty of the employer to take action against the respondent, by initiating disciplinary action against them, terminating their employment, giving a warning, or any other suitable penalty.

5. SPREAD AWARENESS

   Every employer must ensure that all their employees are aware of the provisions of the PoSH Act, which can be done by conducting awareness programs, training sessions, etc., of the same. Spreading awareness about the PoSH Act helps deter possible sexual harassment cases and encourage the victims to speak out and take action against those who abused them.

MAJOR ENACTMENTS AGAINST SEXUAL HARASSMENT AT WORKPLACE

IN THE CONSTITUTION OF INDIA

The Indian Constitution has provided every citizen with the right of equality, irrespective of their gender. Article 14 of the Constitution enshrines the same, and Article 21 provides every citizen with the right to personal liberty, which is violated through sexual harassment at the workplace, as observed by the Supreme Court in the Vishaka v. State of Rajasthan (1997) case. The fundamental rights provided in the Constitution is of a range wide enough to cover all aspects of gender equality, including the prevention of sexual harassment and abuse.

THE SEXUAL HARASSMENT OF WOMEN (PREVENTION, PROHIBITION, AND REDRESSAL) ACT, 2013

The PoSH Act, 2013, was enacted after the landmark judgement in the Vishaka v. State of Rajasthan (1997) case, in accordance with the guidelines issued by the Supreme Court in this judgement to prevent sexual harassment at the workplace. The Act aims to provide women with a safe working environment by defining sexual harassment and the procedures to be initiated against the same.

In the Vishaka case, the victim Bhanwari Devi was brutally gang raped by a group of men because she attempted to stop the marriage of an infant. The defendants managed to escape apprehension through the power and influence they had over the public authorities in their village. There was also no adequate legislation at the time that covered the area of sexual harassment at workplace. The Trial Court had acquitted the accused due to lack of evidence, but after a PIL was filed by a group of women activists in support of the victim, the Supreme Court delivered the landmark judgement that established the guidelines known as the Vishaka Guidelines that laid the foundation for the PoSH Act.

The Act established certain guidelines that must be followed by the employers to ensure the safety of the women working under them. Some of these guidelines include providing a safe working place, spreading awareness of women’s rights and the PoSH Act, establishing an Internal Complaints Committee, initiating an inquiry on the matter upon receiving a complaint of sexual harassment, etc., the non-compliance of which results in a fine of upto ₹50,000 being imposed upon them. If convicted repeatedly, the employer will be fined twice the amount that was awarded to them the first time, and might also result in their business licence being cancelled.

The Act provided for the establishment of an Internal Complaints Committee, which should be headed by a woman and at least half of the members should be women. Any employee, visitor, client or vendor, housekeeping and maintenance staff, intern, volunteer, temporary worker, etc., can file a complaint of sexual harassment with the Committee. The complainant must submit a written complaint to the Committee. Upon receipt of the complaint, the Committee must conduct an inquiry into the matter, to determine the veracity of the complaint. If the accused is found guilty, they can penalise them, initiate disciplinary action, terminate their employment, give a warning, or any other punishment that the Committee deems necessary.

Apart from submitting a written complaint to the Internal Complaints Committee, the complainant can also simultaneously file a police complaint against the accused, as permitted by the PoSH Act. The aggrieved woman can be awarded compensation under Section 15 of the PoSH Act by the ICC after considering the following:

1. The mental trauma suffered by the victim;
2. The loss in career opportunity due to the harassment;
3. The medical expenses incurred by the victim due to the harassment;
4. The income and financial status of the respondent;
5. The feasibility of such payment in lump sum or instalments.

If the ICC finds that the complainant had filed a false complaint against the accused, the Committee can take action against the complainant if it is found that this complaint was the result of a malicious intention to harm the accused in some way. Section 14(1) of the PoSH Act also explicitly states that the lack of evidence should not automatically give rise to the thought that the complaint is false.

Confidentiality of the victim is an important aspect in providing women with a safe environment where they may file a complaint against a person for sexual harassment. Section 16 of the PoSH Act mandates that all information relating to the victim, respondent, and witnesses, that may result in their identification must be kept confidential from the public, the press, and media. It must be understood that the PoSH act can only provide confidentiality and not complete anonymity. The information regarding the justice secured to a victim can be circulated without mentioning any particulars that may result in the identification of the victim or the witnesses. Anyone who breaches this confidentiality shall be imposed with a penalty as per the service rules of that business, and in the absence of such rules, the employer may impose a fine of ₹5000.

INTERNATIONAL CONVENTIONS AGAINST HARASSMENT OF WOMEN AT WORKPLACE

Sexual harassment at workplace is not an issue limited to India, and therefore, several international conventions have been enacted by international organizations in pursuit of reducing sexual harassment cases at the workplace all across the world. Some of these conventions are mentioned below.

CONVENTION 190 OF THE INTERNATIONAL LABOUR ORGANIZATION

This convention by the International Labour Organization is the first international agreement that recognized everyone’s right to a workplace free from violence and harassment, including sexual harassment. Signed in the year 2019, 44 nations have thus far ratified this agreement, which does not include India. It applies to all workers and others in the workplace, regardless of their employment status, the sector in which they work, and their location (Urban/Rural). The member states are obliged to create laws and policies to prevent violence and harassment, establish procedures for reporting and addressing complaints, offer support and remedy to the victim, and promote prevention of the same through awareness campaigns and training.

CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)

This is another convention that deals with the issue of gender inequality. Although it does not explicitly mention sexual harassment, this convention adopted by the UN General Assembly in 1979 lays the groundwork for addressing it in the workplace. The convention focuses on preventing any form of discrimination against women based on their gender, which clearly includes sexual harassment. It obliges member nations to take all measures necessary to eliminate such discrimination. The CEDAW Committee in 2017 issued a General Recommendation specifically on gender-based violence against women, where it addressed the issue of sexual harassment and provided guidance to the states on prevention, investigation, and remedies.

SAFEGUARDING INDIAN WOMEN

In the recent times, there has been a rise in the complaints against sexual harassment of women at workplace, which should be seen as a positive sign of increased awareness and reporting of such crimes, but also a negative sign that this problem still persists. One of the most important movements in India against sexual harassment of women at workplace is the #MeToo movement, which began internationally and later caught on in India in late 2018. The film industry was flooded with accusations of sexual harassment, which led to increasing awareness and resignations of prominent personalities. Although this movement helped bring light to the issue of sexual harassment in the film industry, its focus was also limited to the same, and the informal industry was left out. There is a need for more inclusive movements that would help survivors raise their voice against the injustices in the employment sector.

CASES AND JUDGEMENTS

Apparel Export Promotion Council v. A.K Chopra

• The first case before the Supreme Court after the Vishaka case with regards to sexual harassment.
• The Supreme Court reiterated the judgement in the Vishaka case and upheld the dismissal of a superior officer of the Delhi based Apparel Export Promotion Council after he was found guilty of sexually harassing a subordinate female employee at his workplace.
• The Supreme Court expanded the definition of sexual harassment and ruled that physical contact was not essential to constitute sexual harassment.

Medha Kotwal Lele & Ors. v. Union of India & Ors.

• A letter written by an NGO highlighted a number of individual cases of sexual harassment cases stating that the guidlines prescribed in the Vishaka case was not being implemented effectively.
• The Supreme Court took cognizance of this matter and started monitoring the implementation of the Vishaka Guidelines.
• After not being satisfied with the present state of implementation, the Supreme Court directed the states to put in place sufficient mechanisms to ensure effective implementation of the guidelines.
• The apex court also specified that in case of non-compliance, it was upto the discretion of the aggrieved individuals to approach the respective High Courts.

CONCLUSION

Every incident of sexual harassment results in the violation of the fundamental right to equality and liberty of each woman. The Courts are under the constitutional obligation to protect these fundamental rights. Sexual harassment at the workplace is a concept incompatible with the dignity and honour of a female. Such a violation should not be permitted and needs to be curbed. The Vishaka judgement was the catalyst that led the central government to implement the PoSH Act, 2013, an act that protects the rights of women at their workplace. It imposes certain duties and liabilities on the employers to ensure that sexual harassment does not take place and that their employees are aware of what constitutes sexual harassment and how to react to it.

Frequently Asked Questions(FAQ)

1. Is physical contact necessary to constitute sexual harassment?

   Ans: The Supreme Court has in the case of Apparel Export Promotion Council v. A.K Chopra reiterated that physical contact is not necessary to constitute a case of sexual harassment. Even verbal abuse is more than sufficient to constitute sexual harassment, and if such a complaint is filed against an individual, it is the duty of the Internal Complaints Committee to inquire into the matter.

2. Does showing pornographic content to a woman constitute sexual harassment?

   Ans: The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, generally called as the PoSH Act, defines sexual harassment to be any one or more of the following unwelcome acts or behaviour (either directly or impliedly):

   1. Physical contact and advances;
   2. Any demand or request for sexual favours;
   3. The making of sexually coloured remarks;
   4. Showing pornography;
   5. Any other physical, verbal, or non-verbal conduct that is of a sexual nature.

   Showing pornographic content to a woman thus constitutes an act of sexual harassment.

3. To whom should a complaint of sexual harassment be reported at the workplace?

   Ans: The Vishaka guidelines mandate that an Internal Complaints Committee be formed in every business where there are more than ten employees. A complaint of sexual harassment can be given to this Committee in writing after which it will inquire into the matter.

4. What if the complainant filed a false case of sexual harassment?

   Ans: If a false case of sexual harassment is filed against an individual and if it is found in the inquiry by the Internal Complaints Committee that the complaint was indeed false, strict action will be taken against the complainant. It must be noted that Section 14(1) of the PoSH Act prescribes that lack of evidence does not automatically mean that a complaint is false.

5. Will confidentiality be maintained in a case of sexual harassment?

   Ans: Section 16 of the PoSH Act mandates that all information that can lead to the identification of the victim, witness, or respondent must be kept private. If the ICC finds the accused guilty and punishes them, it may circulate such information to the public without mentioning the names of the victim or witnesses.