“Country and Nations which do not respect women, have never become great nor will ever be in future”. – Swami Vivekananda
Context:As India embarks upon the #MeToo movement, here is an overview of the issue of sexual harassment at workplace in India.
What is sexual harassment?
Sexual harassment is a behaviour with a sexual connotation that is abusive, injurious and unwelcome and makes a person feel offended, humiliated and/or intimidated.The International Labour Organization (ILO) recognizes sexual harassment at workplace both as an aspect of gender discrimination and as a form of violence against women. Sexual harassment at workplace can be of two types:
- Quid pro quo (this for that) harassment: There is a promise of a work-related benefit, or the threat of a work-related sanction, in exchange of sexual favours
- Creation of a hostile work environment based on sex: actions/ behaviours which make working environment hostile for female employees
- Between 2015-2017, a total of 1631 cases have been filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- There is a wide disparity among states, with Uttar Pradesh accounting for nearly 25% of all cases, followed by Delhi (16%)
Impact of Sexual Harassment at Workplace:
- It violates a woman’s fundamental right to equality (Article 14), right against discrimination (Article15) and right to life (Article 21) guaranteed by the Constitution of India
- Sexual harassment at workplace creates an insecure and hostile working environment for women which impedes their capacity to perform at work.
- It also adversely affects the social and economic growth of women and hinders women empowerment. A study led by the ILO found that lewd behaviour and threatening at workplaces were the most well-known reason women left the workforce in Uttar Pradesh.
- Sexual harassment also puts them through physical and emotional suffering. Experiences of sexual harassment can contribute to “sexual harassment trauma syndrome”.Further, harassment victims often experience secondary victimization when attempting to deal with the issue through legal or institutional means.
Indian Legislation against sexual harassment at workplace:
- Before 1997, women experiencing sexual harassment at workplace had to lodge a complaint under Section 354 of the Indian Penal Code that deals with the ‘criminal assault of women to outrage women’s modesty’, and Section 509 that punishes an individual(s) for using a ‘word, gesture or act intended to insult the modesty of a woman’.
- In 1997, the Supreme Court passed a landmark judgment in the Vishakha case, for the first time defined sexual harassment and imposed three key obligations on institutions — prohibition, prevention, redress. The Supreme Court directed institutions establish a Complaints Committee, which would look into matters of sexual harassment of women at the workplace.
- In 2013, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed. The main objective of the Act was to implement the Vishakha guidelines and to ensure access to a safe workplace by woman.
Issues and Challenges:
- Lack of Awareness: The efficacy of anti-sexual harassment provisions depends largely on the awareness of the employees in an organization. However, studies conducted on occurrence and dynamics of sexual harassment at workplace noted that most of the employees including members of ICC are not aware of what amounts to sexual harassment.
- Apathy of organizations: Many organizations have not constituted a ICC. Further, women rights activists point out that organizations generally view sexual harassment cases from the perspective of their public image and not as a breach to individual employee’s breach to dignity and safety. This often leads to hushing up of cases.
- Reporting of cases: A survey conducted by Indian National Bar Association revealed that nearly 70% of women did not complain about sexual harassment at workplace due to fear, embarrassment, lack of confidence in complaint mechanism, unawareness, and due to stigma attached to sexual harassment.
- Victimization: Victimization in sexual harassment often occur during retaliation and due to third party hostility. However, the 2013 law is silent on victimisation and has neither any preventive provisions nor any remedies for the same
- Inclusion of action for false and malicious complaints and evidence: Women are penalised and have to bear the threat of punishment in case they are unable to prove their complaint. This further acts as a deterrent in filing complaints. The provision has been largely criticised by activists and legal experts and even the Verma committee had advised its deletion.
- Issues with ICC:Most of the committees lack people who have knowledge about legal technicalities involved in conducting the inquiry, cross-examinations and its importance.
- Unorganized sector:The lawinadequately addresses the plight oflarge numbers of women in the unorganised sector who continue to suffer worse conditions of work and harassment without access to legal measures. Further, the LCCs are not formulated or do not function properly in most of the districts.
- Employers Liability:According to critics,the law is silent on the employer’s liability in cases except to the extent of setting up a committee and facilitating the holding of an inquiry. There are no prosecutions in case of a failure to provide a safe environment at work.Further, the act does not authorize employer to take suomotu cognizance of acts of sexual harassment at workplace. Thus, the law predominantly focuses on redressal and not prevention or prohibition of such acts.
- Not Gender Neutral: The law against sexual harassment at workplace has been criticised for not being gender neutral. It does not take into account sexual harassment faced by men, trans-gender and transsexual individuals.
- Organisations should focus on gender diversity at a workplace not only in terms of increasing numbers of women but also ensuring a safe working environment for them and that their voices are heard.
- It is important for organizations to educate their employees on proper conduct at the workplace, conduct regular training and aware about severe repercussions of any unwelcome behaviour. Women employees should be made aware of their rights and about what constitutes sexual harassment at workplace
- Organizations need to tighten their internal processes to respond to sexual harassment complaints and take the requisite steps to appropriately respond to such cases through ICCs
- Concerned state governments should take urgent steps to examine the establishment and functioning of LCCs and address issues of sexual harassment in unorganized sector.
- The issue of sexual harassment cannot be addressed by mere enactment of laws. Sincere efforts need to be made in overcoming stereotypes, narrow-mindedness and gender biasness. A more gender-neutral approach needs to be taken to address sexual harassment.