Sexual Harassment at Workplace – #MeToo movement

Context

• Accusations of sexual assault have spread across India’s social media as the #MeToo movement took aim at prominent journalists, writers, editors and a comedian.
• Scores of women, many journalists, came out this week with accounts of sexual harassment from colleagues and editors, accusing them of indecent remarks, unwanted touches, demands for sex, and the dissemination of pornography.
• The last couple of years have seen a tidal wave of sexual allegations and accusations against men in professionally powerful positions across the globe, and it seems that finally, this wave has now reached Indian shores.

INTRODUCTION

Sexual harassment constitutes a gross violation of women’s right to equality and dignity. It has its roots in patriarchy and its attendant perception that men are superior to women and that some forms of violence against women are acceptable. Half of the total number of crimes against women is related to the molestation and harassment at the workplace.

The increasing work participation rate of women made it imperative for enacting a comprehensive legislation focusing on prevention of sexual harassment as well as providing a redressal mechanism, starting with Vishakha Guidelines to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.

Vishakha Judgement

• The Supreme Court in 1997 in the case of Vishakha vs. state of Rajasthan provided the first authoritative decision of ‘sexual harassment’ in India; and confronted with a statutory vacuum, it went creative and proposed the route of ‘judicial legislation’.
• It laid down the requirements for employers dealing with complaints of sexual assault and stipulated the formation of committees to dispose of complaints from victims of harassment. These guidelines came to be known as Vishakha Guidelines.
• This is part of what the Supreme Court had stated in 1997 that gender equality under Article 14, 19 and Right to Life under Article 21, the dignity of women has to be maintained.

Definition of Sexual Harassment as defined by the Supreme court

• Anything at work that can place the working woman at disadvantage compared to other male employees in her official career just because she is a woman – can be termed as sexual harassment.
• Unwelcome sexually determined behaviour & demands from males employees at the workplace, such as:
  • any physical contacts and advances,
  • sexually coloured remarks,
  • showing pornography,
  • passing lewd comments or gestures,
  • sexual demands by any means,
  • any rumours/talk at the workplace with sexually coloured remarks about a working woman, or
  • Spreading rumours about a woman’s sexual relationship with anybody.

The Vishaka Guidelines

1. All employers whether in the public or the private sector should take appropriate steps to prevent sexual harassment.
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 and no woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
3. Where such conduct amounts to specific offences under the Indian Penal Code or any other law, the employer shall initiate appropriate action in accordance with the law, by making a complaint with the appropriate authority.
4. Victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

The Preventive Steps as suggested by SC in Vishaka Case

1. Guidelines should be prominently notified to create awareness about the rights of women employees.
2. Sexual harassment should be discussed at workers’ meetings, employer-employee meetings and at other appropriate forums.
3. Employers should assist the persons affected in cases of sexual harassment by outsiders or third parties.
4. Both Central and State governments are required to adopt measures including legislation to ensure that private employers also observe these guidelines.
5. Employers must form a Complaints Committee which is to be headed by a woman. Half the members of the committee should be women.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was passed in 2013. It broadens the Vishaka guidelines, which were already in place.

Definition -An aggrieved victim is a woman “of any age whether employed or not”, who “alleges to have been subjected to any act of sexual harassment”.

• The Act thus covers the rights of all women working or visiting any workplace, in any capacity.
• Sexual harassment is any one or more of “unwelcome acts or behaviour”, committed directly or by implication.
• They include:

1. Physical contact & advances
2. A demand or request for sexual favours
3. Sexually coloured remarks
4. Showing pornography
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Additionally, the Act mentions five circumstances that amount to sexual harassment:

1. implied or explicit promise of preferential treatment in her employment
2. implied or explicit threat of detrimental treatment
3. implied or explicit threat about her present or future employment status
4. interference with her work or creating an offensive or hostile work environment
5. humiliating treatment likely to affect her health or safety

• ICC – Every employer must constitute an Internal Complaints Committee (ICC) at each office or branch with 10 or more employees.
• For the ICC to act, it is not compulsory that the victim must write a complaint.
• If the woman is unable to make a complaint on account of her “physical or mental incapacity or death or otherwise”, her legal heir may do so.
• The identity of the woman, respondent, witness, any information on the inquiry, recommendation and action taken should not be made public.
• Time-frame – The complaint has to be made “within 3 months from the date of the incident”.
• For a series of incidents, it has to be made within three months from the date of the last incident.
• However, this time-frame is not rigid as the ICC can “extend the time limit”, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint in that period.
• IPC – The ICC may forward the complaint to the police under Indian Penal Code Section 509.
• The Section relates to word, gesture or act intended to insult the modesty of a woman, which would lead to the maximum punishment of 1 year in jail with fine.
• ICC Inquiry – Otherwise, the ICC can start an inquiry that has to be completed within 90 days.
• The ICC has similar powers to those of a civil court in respect of the following matters:

1. summoning and examining any person on oath
2. requiring the discovery and production of documents

• When the inquiry is completed, the ICC is to provide a report of its findings to the employer within 10 days.
• While the inquiry is on, the woman can make a written request to the ICC regarding work.
• The ICC, “may”, then recommend her transfer, leave for 3 months, or any other relief as may be prescribed.
• Actions – If the allegations are proved, the ICC recommends that the employer take action for sexual harassment.
• This would be in accordance with the provisions of the service rules, which vary from company to company.
• It also recommends that the company deduct from the salary of the person found guilty, “as it may consider appropriate”.
• Compensation is determined based on five aspects:

1. suffering and emotional distress caused to the woman
2. loss in career opportunity
3. her medical expenses
4. income and financial status of the respondent
5. the feasibility of such payment

• Appeal – After the recommendations, the aggrieved woman or the respondent can appeal in court within 90 days.
• False complaint – In a case of false/malicious complaint and false evidence, ICC “may recommend” the employer to take action against the woman who has made the complaint.
• However, it cannot be taken for “mere inability” to “substantiate the complaint or provide adequate proof”.
• Conciliation – The ICC “may”, before the inquiry, take steps to settle the matter between the victim and respondent through conciliation.
• This is only “at the request of the aggrieved woman,” and provided that no monetary settlement is made as a basis of conciliation.

Criticism of the Act

Firstly, it fails to cover those women working in the agricultural workers and armed forces, which are largely men – dominated sectors.

Secondly, the act appears to be gender biased since it only protects women.

Thirdly, the act has a wide scope for false allegations. There are high chances of these laws getting misused at the hands of women for their personal benefits.

Fourthly, the provision regarding the fixing of the monetary compensation according to the economic potential of the person makes it discriminatory since the person with high rank and status will be made to pay more than the person with low status, which from nowhere seems to serve any purpose other than being discriminatory in nature.

The Effects of Sexual Harassment in the Workplace

The impact of sexual harassment at the workplace is far-reaching and is an injury to the equal right of women. Not only does it impact her, but it also has a direct bearing on workplace productivity as well as the development of society.

1. Emotional Well-Being 
Sexual harassment can jeopardize the victim’s emotional and mental health. It can lead to the loss of self-esteem and it may even compromise personal relationships. Sexual harassment in the workplace can cause significant stress and anxiety.

2. Physical Health 
Physical health and emotional health are closely linked. It often leads to physical health issues, such as loss of appetite, headaches, weight fluctuations, and sleep disturbances. Sleep disturbances can, in turn, lead to other serious health problems, such as hormonal imbalance, an increased risk of high blood pressure, and a weakened immune system.

3. Financial Challenges 
In addition to causing health problems, sexual harassment frequently leads to financial challenges. Some victims of sexual harassment may even face broader career repercussions, such as the loss of job references. They may decide to leave their current position or employer to avoid a hostile work environment.

4. Global Consequences

• Sexual harassment has a direct effect on employers and the global economy. Each year, millions are lost due to absenteeism , low productivity, employee turnover, low morale, and legal costs stemming from sexual harassment. The economy also suffers due to premature retirement and higher insurance costs.
• National Sample Survey (NSS) data for India show that labour force participation rates of women aged 25-54 (including primary and subsidiary status) have stagnated at about 26-28% in urban areas, and fallen substantially from 57% to 44% in rural areas, between 1987 and 2011.

Concerns / Challenges

• Despite these advances, a 2015 study by the Federation of Indian Chambers of Commerce and Industry and EY suggested that 36% of Indian companies and 25% of multinational corporations in India were not compliant with this Act.
• The problem is of mindset particularly those educated and well trained.
• Much of it depends on the implementation which is worrisome. Some people who are in very influential position are accused and they have got away with it. In India wherever the accused has been influential they have got a free hand. It creates a sense of alienation, disbelief about the law.
• Women are exploited by the superior in the matter of promotion, emoluments and better prospects in job etc.

The need of the Hour

• There has to be a sense of fear in the mind of the offenders which has to be ensured.
• Elaborate suggestion, punishment and disciplinary action have to be taken. The Department of Personnel and Training,  Ministry of Women and Child Development should see to it that no matter who is accused should be severely dealt with which would instil a gender sensitive society.
• More than this is the attitudinal change, how we raise the sons in the families, how we make men respect women within the family and within the private spaces will matter. The socialisation process and education all go towards making the man much more sensitive while dealing with women.
• There must also be equal punishment to women who make false charges.
• The law makers must think it over that any complaint of rape should have a time bar and complaints cannot be entertained beyond certain time limit. There are instances where the women approach the police or court with the charges of rape happened three years ago and there can be some motive behind the complaint. So there has to be a time bar within which the compliant should be registered say within 6 months or 1 year.
• There are 100s of private companies where they don’t have any committee to look into the complaints of sexual harassment of women. The government have to look upon these companies and have proper investigation.

What does the MWCD Handbook specify?

• The Ministry of Women & Child Development (MWCD) has published a Handbook in this regard.
• It gives more detailed instances of behaviour that constitutes sexual harassment at the workplace:

1. Sexually suggestive remarks, offensive remarks, inappropriate questions or remarks about a person’s sex life
2. Display of sexist/offensive pictures, posters, MMS, SMS etc
3. Intimidation, threats, blackmail around sexual favours; also, any kind of threats against an employee who speaks up
4. Unwelcome social invitations with sexual overtones, commonly seen as flirting/Unwelcome sexual advances

• It says “unwelcome behaviour” is experienced when the victim feels bad or powerless, causing anger/sadness or negative self-esteem.
• It adds that unwelcome behaviour is one which is “illegal, demeaning, invading, one-sided and power based”.

Conclusion

Not just a healthy balance sheet but a healthy and free work environment is most is the hallmark of a successful work culture, but also India’s GDP. The economic impact of achieving gender equality in India is estimated to be US$700 billion of added GDP by 2025. The IMF estimates that equal participation of women in the workforce will increase India’s GDP by 27 percent. Sexual harassment in the workplace cannot be tackled by legislation alone. It needs cultural change.