As more and more women are going out to work, they face an increasing risk of being harassed or rather being subjected to some sort of sexual harassment. Sexual harassment at workplace is not a new thing. Sixty percent of working women have faced sexual harassment at some point of their working lives. For every woman who raises an outcry, there are hundreds who suffer in silence, quit their jobs or get transfers. For years, sexual harassment was considered as inescapable part of a working woman’s life.
Now, awareness is slowly raising that no woman should meekly accept sexual harassment as part of her life. Women should be able to feel comfortable in their place of work. If somebody is being sexually harassed, it can be reported to the authorities at their place of work or with local law enforcement agencies. In order to know what constitutes sexual harassment at workplace, we should understand what a workplace is.
There are two distinct types of sexual harassment:
- Quid pro quo, meaning seeking sexual favours or advances in exchange for work benefits and it occurs when consent to sexually explicit behaviour or speech is made a condition for employment or refusal to comply with a ‘request’ is met with retaliatory action such as dismissal, demotion, difficult work conditions.
- ‘Hostile working environment’ is more pervasive form of sexual harassment involving work conditions or behaviour that makes the work environment ‘hostile’ for the woman to be in. Certain sexist remarks, display of pornography or sexist/obscene graffiti, physical contact/brushing against female employees are some examples of hostile work environment, which are not made conditions for employment.
The Hon’ble Supreme Court of India has proactively taken up the issue of sexual harassment at workplace in the public domain via the judgment in Vishaka and others v. State Of Rajasthan and anothers (JT 1997 (7) SC 384). The supreme court recognised sexual harassment as a violation of human rights and a gender based systematic discrimination that affects women’s right to life and livelihood. The court defined sexual harassment very clearly as well as provided guidelines for employers to redress and prevent sexual harassment at workplace. It was observed by various courts from time to time in the past that the guidelines and the norms framed by the Hon’ble Supreme Court in this judgment have not been followed in workplaces strictly. The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on preventing sexual harassment as well as providing a redressal mechanism.
The government of India in consonance with provisions under Article 11 of the Convention On The Elimination Of All Forms Of Discrimination Against Women (CEDAW), enacted The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 w.e.f. 9th Dec. 2013.This statute superseded the Vishaka guidelines issued by the Supreme Court in the year 1997. The act uses the definition of sexual harassment, which was laid down by the Vishaka judgment by the Supreme Court in 1997. The act is based on the idea that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.
The Supreme Court directive of 1997 clearly and unambiguously provides an answer to the question ‘What is sexual harassment?’ As defined in the Supreme Court guidelines (Vishaka vs. State of Rajasthan, August 1997), sexual harassment includes such unwelcome sexually determined behaviour as:
- Physical contact
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for example, leering, telling dirty jokes, making sexual remarks about a person’s body, etc.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines what constitutes an act of sexual harassment in workplace. Section 3 (2) states that:
“Sec. 3 (2) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:—
(i) Implied or explicit promise of preferential treatment in her employment: or
(ii) Implied or explicit threat of detrimental treatment in her employment; or
(iii) Implied or explicit threat about her present or future employment status: or
(iv) Interference with her work, creating an intimidating, offensive, or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety.”
While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces, which involve tele commuting, will be covered under this law.
The term ‘employee’ (Sec. 2f) includes regular, temporary, ad hoc, daily wage employees and persons who are working on a voluntary basis i.e. without remuneration. The term also includes contract workers, probationers, and trainees. The Act defines “aggrieved woman” (Sec. 2a) to mean:
- In relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
- In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
The issue of sexual harassment needs understanding, assessment, sensitivity and commitment from all quarters but mostly from the senior managerial authority as their commitment and action can achieve the aim of prevention and effective resolution of sexual harassment at workplace and a gender friendly, discrimination free workplace. The law will come in handy only when the people are sensitized about the implications of this problem. The victim has to be aware about their right to fight back. In the modern world, gender equality has to be consciously implemented. Harassment of any kind is not to be accepted. Mute acceptance is not the answer,gender sensitisation is.