SEXUAL HARASSMENT OF WOMEN AT WORKPLACE: NEED OF SPECIAL LEGISLATION By: - Vishal Aggarwal & Parikshit Bajaj

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE:

NEED OF SPECIAL LEGISLATION

Authored By: - Vishal Aggarwal[1] & Parikshit Bajaj[2]

1. Introduction

Though the constitution of India ensures no discrimination on the basis of gender approximately since last seven decades but the position of women in India be it socially or economically does not reflect gender equality. Women in India are still treated as subordinate to men. Not just the women are treated subordinate and are unreasonably dominated by men but are also treated as sex objects in the country, and hence undergo unwanted sexual attention and offensive behaviour. They are always put to unreasonable restrictions, to prevent sexual violation against them. According to NCRB report, 3,38,954 crimes happened against women and about 2,27,739 Cases still pending in the court of law, it must also be noted that the NCRB report data is based only on the basis of the reported crimes and there are many cases which may not even come in the notice of the authorities. After analysing these reports it would not be wrong to say that only the men enjoyed freedom after 1947 while the independence for the women is yet to be achieved. The cases of sexual harassment of women have been increasing with their increased participation in the corporate sector and active participation in working sector. Furthermore, it projects the orthodox image of women which objectify women for sex over work.

The sexual harassment for the women at workplace was for the first time identified 4 decades ago by a U.S. Law Professor “Catherine MacKinnon” and according to her this is the matter of gender discrimination[3]. This matter of sexual harassment is also dealt by The International Convention on the Elimination of all forms of Discrimination Against Women [CEDAW] which was ratified by India and was recognized as the right of women to equality at workplace, which ensures protection of women from sexual harassment at workplace.

1. What Constitutes Sexual Harassment?

In general terms, sexual harassment may be referred to as an act or behaviour with sexual intentions which are abusive, unwelcomed and injurious. Sexual harassment may be constituted by a single act or a series of acts which may or may not be done within the workplace. It is a misconception that sexual harassment at workplace only includes a physical sexual assault and is valid only within the workplace while sexual harassment has a large ambit. Sexual Harassment if profound at Workplace majorly of following imbalance.

1. Sociological Powers

Sexual Harassment is more concerned with the power than the sense of abnormal attraction. It involves the misappropriation of the powers by a person over the dominated group say the unreasonable exploitation of male over female. According to William Petrocelli, “Sexual Harassment results from a misuse of a power – not from sexual attraction”[4] this reflects the disparity of power between the harasser and the victims, and clearly represents the difference of status of men and women in the society. This difference may be of gender, caste, class etc.

1. Subordinate – Superior Relationship

It may be referred to as another form of misuse of power by superior over subordinate and as another example of objectifying the woman as a sex object. In this type of power imbalance. The subordinates are taken for granted and their freedom and will is ignored. Furthermore, most of the women are concentrated in the poor service jobs like receptionists, typists, nurses etc. in which their immediate senior are usually men therefore, giving men an opportunity to exploit women, which further gives rise to sexual harassment at workplace. Therefore, the things get worse where the boss himself is a perpetrator and threatens the victim from adverse job consequences.

1. Vishaka v. State of Rajasthan[5]:  The Beginning of a New Era

In India, sexual harassment could find no place in the Indian constitution till 1997, though there were a few decrees passed by the Hon’ble courts in this regard which brought this problem some attention of the legislation. Before 1997, a woman could only lodge a complaint of sexual harassment against the accused under section 354[6] and section 509[7] of the Indian penal code. But the ambit of both the sections were small and were to be interpreted by the police officers. Furthermore, before the Vishaka judgement there was no liability of the employers or the corporation for safety of employees at workplace. This was for the first time in the case of Vishaka v. State of Rajasthan that the hon’ble court felt the need of defining sexual harassment at workplace due to its recurring nature and to formulate certain guidelines in order to ensure fair, safe and homogenous working environment. Such kind of judicial intervention by the hon’ble court is remarkable. The guidelines given by the Hon’ble Supreme Court in the case of Vishaka are as follows:

1. There must be express prohibition of sexual harassment at workplace and information of the same must be notified, published and delivered to every employee in appropriate manner.
2. Public as well as private sector bodies must include clauses ensuring the prohibition of sexual harassment at workplace and impose fine and punishment against the offender for any such act. And provisions relating to the same must also be added in the Industrial Employment Act, 1946.
3. That is the duty of the employer and the corporation to ensure leisure, healthy, hygienic and homogenous working condition to women in order to ensure no disadvantage in relation with her working environment.
4.  That it is the duty of the employer to initiate appropriate actions against the perpetrator, to help the victim to lodge complaint against the perpetrator and also to have the right of transfer of the perpetrator at their own.
5. If such act of the perpetrator is also against the rules of the corporation disciplinary, actions must also be taken in accordance with the same.
6. Whether or not the complaint made by the victim calls for the penal action an easy, accessible complaint redressal mechanism must be formulated and such complaint redressal mechanism must be time bound.
7. The complaint redressal mechanism as discussed above in (6) must be done by a special and distinct complaint redressal committee which must be headed by a woman and not less than half of its member must be women. Also, to ensure no undue pressure on the complainant the committee must also include a third party, which may be a NGO or any other body which must be familiar with such regulations. And an annual report by such committee must be sent to government departments.
8. The court also guided that it is the duty of the employer and the corporate houses to ensure awareness of such rights to its employees and should regularly organize awareness programs in this regard.
9. The Hon’ble Supreme Court also requested the need of special legislation in this regard which must be in accordance with the guidelines made by the court in this regard.

These guidelines were made by the Hon’ble Supreme Court in order to prevent sexual harassment at workplace and were in accordance with the article 32 of the Indian constitution. Later, in the case of Apparel Export Promotion Council V. A.K. Chopra[8] the hon’ble court held that an attempt to molest will amount to sexual harassment and actual touch and assault must not be necessary to constitute sexual harassment.   

1. Analysis of the Legislation  i.e. Sexual

Harassment at Workplace

After a lot of draft bills which provided for the special legislation of sexual harassment at workplace finally on 22nd April, 2013 “The Sexual Harassment of Women at Workplace Act, 2013 was passed. The act is not only according to the India’s international convention i.e. CEDAW but also in accordance with the guidelines laid down by the Hon’ble Supreme Court in Vishaka V. State of Rajasthan[9].

The objective of the legislation is to ensure safe, healthy working environment to everyone irrespective of their gender, caste etc. and protect them from any kind of sexual harassment at workplace. The objective of statute can be referred to as follows:

1. 1. Prevention of sexual harassment at workplace
   2. To ensure fast, fair, easy, and accessible complaint redressal mechanism in every corporation

The ambiguity prevailed after the judgement of Vishaka case since it does not address the definition and scope of workplace, this question was neither addressed by the Hon’ble courts in follow up judgements, later in the case of Saurabh Kumar Mullick V. The Comptroller & Auditor General of India, Delhi high court held that the scope of workplace must not be narrowed down and must be interpreted varying from case to case, the court held it to be important to leave the interpretation of ambit of workplace with court in order to prevail its significance. Since, the court was of the view that sexual harassment is not only constituted within the premises though it may give it a start this lead to the establishment of the principle of proximity.

1. PROXIMATE TEST

In light of the judgement given under Vishaka judgement, the Central Administrative Tribunal (CAT) did not laid down any restrictions on the scope of workplace in order to preserve the true essence of the legislation. And hence laid down the principle of proximity test, this is to ensure the proximity of the act constituting sexual harassment and its relation with the place of work and management. The relation between the act and its proximity from the place of residence or any other place where the act took place plays a determining role. The place where the victim has been witnessed sexual harassment must be within the ambit of workplace or under its surveillance in order to make person liable under this legislation. But the definition of workplace can’t be so generalized it includes all such places where the victim was subjected to go under the guidance or reasoning of their work.

And, hence the tribunal was not only concentrated upon the office of work. Rather, any place where a female employee is expected to go in accordance with her job such as canteen, mess, hostel, etc. and hence the tribunal again left the question of scope of workplace onto the courts but the interpretation of courts with regards to the scope of workplace must subject to the following:

1. Proximity of act to the place of work.
2. Control or reasonable directions of the management over the place.

This will also include the dwelling place of the employee meet in the course of employment according to the Hon’ble Delhi High Court. Despite such a general definition of the workplace it still lacks certain areas which must be included within the scope of the definition of workplace and hence leaving the scope of amendment in the act.

Further to this section 3 of the Sexual Harassment Act, 2013 deals with the prevention of sexual harassment and states the conditions which also constitute to sexual harassment. The act focuses on the fact that any form of undue threat or promise of undue advantage in the course of employment or unwelcomed sexual behaviour or assault constitutes to as sexual harassment. Further section 9 of the legislation deals with the aggrieved parties who can file the complaint of sexual harassment which would include any women relating to the victim, a legal heir. It also states that the complaint must be in writing, furthermore it states that the complaint must be made within 3 months of the incident and in case of series of act   the complaint must be made within the period of 3 months from the last assault, but the complaint can be accepted after the limitation period but the reason of delay must be reasonable and the authorized committee must record the reason for the delay in filing the complaint. Moving further section 10 of the legislation also gives the chance to the aggrieved parties for conciliation but it should not include any kind of monetary settlement. And once the settlement is made the complaint or any further action would not arouse on the same act. 

1. DUTIES OF EMPLOYER

Section 19 of the Sexual Harassment Act, 2013 lays down the duties of the employer towards maintaining the safe working environment. It lays down the following duties on the employer:

1. To provide safe working environment to its employees
2. To establish the sexual harassment complaint committee
3. To conduct regular workshops, training and other awareness programs to ensure awareness          of rights and sense of maintaining homogenous working environment.
4. Should fulfil basic and necessary obligations to maintain complaint committee
5. Should ensure safety of witnesses as well as of the complainant
6. Should ensure confidentiality of facts
7. Should provide for required assistance in taking further legal actions

The act also lays down strict rules in affirming the proper application of the statute at workplace and to ensure safety and equality at workplace.

1. INTERNATIONAL SCENARIO

As already discussed the concept of sexual harassment at workplace was first identified by the U.S. Law Professor and later on was recognized by many countries and also found its place in conventions relating to the human rights. Since, sexual harassment is treated to be as the assault of power over the attraction. And, hence it has become the question of equality be it on the basis of gender, caste or any other unreasonable discrimination. Few of the treaties and conventions in which the sexual harassment at workplace has found its place may referred to as follows: -

1. International Covenant on Economic, Social and Cultural Rights (1966)

The main focus of this covenant is on ensuring the equality of rights of men and women and to ensure equal enjoyment of social, economic and cultural rights by them. ICESCR (International Covenant on Economic, Social and Cultural Rights) makes the state duty bound to ensure such equality. It ensures to all certain basic rights such as tapping up of opportunities, equal accessibility of resources and to ensure safety of the employees for the overall development. This can be inferred from section 7 of the same which ensures equal remuneration, equal promotion chances and healthy working environment.

1. The International Covenant on Civil and Political Rights (1966)

According to article 17 of the ICCPR (The International Covenant on Civil and Political Rights) it is the duty of the state to ensure right to privacy, personal integrity and dignity. It also ensures equality to all irrespective of the gender. In the light of the sexual harassment at workplace covers all of them since it is equally important to maintain privacy and confidentiality and to ensure dignity of the complainant, also the principle of sexual harassment as already discussed involves the question of equality which is duly ensured by the ICCPR.

1. International Labour Organization Discrimination (Employment and Occupation) Convention

According to the convention discrimination is “any distinction, exclusion or preference maid on the basis of {…} sex {…} which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”[10]. It delegated the duty upon the state to remove any kind of discrimination which hampers the right of an individual to avail equal opportunity. Though there is no direct focus on the issue of sexual harassment at workplace in the convention but its focus on the issue of equality already addresses the issue, as it is already discussed that the sexual violation is because of the imbalance of powers and not attraction.

1. Charter of United Nations

The united nations charters focus on the basic human rights of the individuals which may be referred to as the fundamental rights required for the survival. The UN charter obligates the states to ensure the applicability of human rights in the country and focuses on maintaining trust and faith in the government and to ensure equality within the state. The charter ensures “faith in the fundamental human rights and the dignity and worth of the human person and the equal rights of men and women”[11]. And imposes the duty on state to ensure the same.

1. Universal Declaration of Human Rights, 1948

UDHR (Universal Declaration of Human Rights) was adopted by the UN general assembly in 1948 with the objective of ensuring basic fundamental rights to the people. Which cordially includes equality of all. Article 2 of UDHR restricts any kind of discrimination including on the basis of gender and focus on the free and fair availability of opportunity to all. Also, article 3 of the declaration ensures universal “right of life, liberty and security” and also ensures equal protection under the law. Though it does not directly address the issue of sexual harassment at workplace but carry’s a lot of importance to this regard as it ensures right to work, equality of remuneration, protection by law, homogenous working conditions and protection against the unemployment.

1. Convention on the Elimination of All Forms of Discrimination Against Women

This is referred to as one of the most important and crucial step taken by the UN, in their contribution towards the protection and empowerment of the women, CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) was signed by India on 3rd July, 1980. The main focus of the CEDAW is to eliminate all kinds of violations and discriminations against the women and in furtherance of the same it bounds the state to take affirmative action to eliminate such violence against the women and maintain equality in the state, this involves both equality of opportunity and treatment at workplace. CEDAW pays a direct focus on the issue of sexual harassment at workplace. Furthermore, CEDAW states that it is not possible to maintain equality and homogenous environment at workplace until all kind of harassment against women are curbed together. In furtherance of the same in 1992, the CEDAW formulated and adopted General Recommendation no. 19[12] which expressly recognizes sexual harassment as a form of violence against the women. According to the CEDAW sexual harassment is defined as “unwelcome sexually determined behaviour [such] as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands whether by words or actions”[13] in furtherance of the same it also states that “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”.

1. The Beijing Declaration and the Beijing Platform for Action

The Beijing declaration is in accordance with the UN charter, the universal declaration of human rights, the declaration of violence against women, and the CEDAW convention and shows its will towards the affirmation of human rights in the state and lays down the following observations; it makes the state duty bound to affirm equality, it focus on the  view of removing all sought of gender discrimination in order to ensure protection of sexual harassment at workplace, and to ensure equality. While the later i.e. The Beijing Platform for Action, focuses on some critical areas of concern violence against the women, inequality of economic structures and policies, protection of dignity and integrity and discriminatory working conditions and sexual harassment. This can be termed as another landmark step towards women empowerment as it individually deals with 12 critical issues.

1. HUMAN RIGHTS TREATY BODIES

Despite the general application of human rights in the world, formulation of special and centralized committee’s is one of the most important and appreciated function of the human rights bodies some of such bodies are as follows:

• Human Rights Committee
• Committee on Economic, Social and Cultural Rights
• Committee on the elimination of discrimination against women
• On the Rights of the Child
• On the Elimination of Racial Discrimination

Besides the formulation of human rights in the states these specific bodies of the human rights lay down their sole focus in resolving such issues which makes it more effective.
 

1. STATUS AND ACTIONS TAKEN BY DIFFERENT COUNTRIES TO COMBAT SEXUAL HARASSMENT AT WORKPLACE

1. U.S.A.

One of the most prevalent problem in the states of America was that the privacy of the victims was hampered their believing on the fact that the sexual harassment at workplace is because of gender discrimination and not due to attraction therefore same remedies must be given to the victim as to someone who has faced an ordinary discrimination in the state. Later the sexual harassment was defined by the legislation of  U.S.A. which gives it a different ambit also The American Foundation of States, Country, and Municipal Employees (AFSCME) published several magazines and articles in order to spread awareness about the same.

1. European Communities

European community is one of the most active groups in taking affirmative action relating to promotion of sexual equality. It focuses on spreading awareness about the issue, prevailing laws, regulatory actions. It tells the state to ensure protection and equality of legislation and dignity and integrity of the women within the country and involves the vide ambit of sexual harassment. Such communities not only focus on the sexual harassment at workplace but on ensuring gender equality in every sphere since it believes that sexual harassment can only be stopped by promoting equality in every sphere. It is not only focused on women rather on both genders.   

[1] Author, BBA.LLB(H), LLM, GGSIP UNIVERSITY, NEW DELHI (ADVOCATE).

[2] Co- Author, BBA.LLB(H), LLM, GGSIP UNIVERSITY, NEW DELHI (ADVOCATE).

[3] Catherine MacKinnon; Sexual Harassment of Working Women: A case of sex discrimination, Yale University Press, 1979,pp.116-118,174.

[4] William Petrocelli and Barbara Kate Repa, Sexual Harassment on the Job, NoLo Press. 1992,p.1-9.

[5] Vishaka & Others v. State of Rajasthan & Ors., JT1997[7] SC392

[6] Assault or Criminal force to Women with intent to outrage her Modesty

[7] Word, Gesture or Act intended to insult the Modesty of a Women

[8] Apparel Export Promotion Council V. A.K. Chopra, AIR 1999 SC 625:1999[1] SCC759.

[9] Vishaka & Others v. State of Rajasthan & Ors., JT1997[7] SC392.

[10] Discrimination (Employment and Occupation) Convention. C111[ILO,1958].Article 1.

[11] UN Charter. Article 1(3)

[12] General Recommendations are authoritative by the CEDAW Committee, of the provisions in the convention with regards to the rights of women and obligations of States parties.

[13] CEDAW. General Recommendation No. 19 (1992). Para 18