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The Sexual Harassment of Women at Workplace: An Unmanned territory
A holistic view needs to be taken so as to get to the root of the problem of sexual harassment and understand the sociological dimension associated with it write Gibran Naushad and Susanah Naushad. |
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Introduction
Sexual harassment is one of the most venomous problems that the society is facing today. The term had not been coined till the 1970’s, however since it’s docking in the public forum, the concept has rapidly expanded. It has taken different connotations and inspired varied viewpoints over the period of time. Sexual harassment can be broadly defined as ‘an unwelcomed sexual advance that leads to the creation of a hostile and offensive work environment for a person’. The laws of different countries have attempted to define it in different ways. However analyzing the phenomenon of sexual harassment through the narrow prism of ‘unwanted sexual behavior’ would highly limit our understanding of the concept.
The Indian judicial experience with sexual harassment started with the case of Vishaka v. State of Rajasthan. The case dealt with the brutal gangrape of Bhanwari Devi, a social worker who was working to spread awareness to end child marriage. The court decided to use this opportunity to create a protective framework for the female workforce of this country, an area where there had been huge lacunae in Indian Law. Thus comprehensive guidelines were issued by the Supreme Court to ensure that the female workforce of this country is protected from sexual violence and sexually charged gender-discrimination in the workplace.
1. Heather McLaughlin et al., Sexual Harassment, Workplace Authority, and the Paradox of Power, 77 American Sociological Review 620, 626 (2012).
2. Ibid.
3. AIR 1997 SC 3011.
4. Ibid.
5. Ayesha Kidwai, Sexual Harassment in the Workplace, The Verma Committee and After, 48 Economic and Political Weekly 1, 5 (2013).
There were several judgments after the Vishaka Judgment that emphasized on the need for a comprehensive law on sexual harassment. The case of Apparel Export Promotion Council v. Chopra is one of them, which emphasized that sexual harassment is gender based discrimination and quoted the International Labour Organization for the same. The Sexual Harassment at Workplace Bill was tabled in the Parliament in 2007. This in turn prompted cases such as Grewal v Vimmi Joshi that emphasized on the stipulations of the bill while delivering judgments related to sexual harassment. However none of them vigorously asked for a bill to be passed, thereby turning a blind eye to the issue. It was finally after 16 years that a bill was passed relating to sexual harassment in India. One would thus naturally expect the bill to be highly comprehensive and free from faults. However that was not the case to be. The bill not only faulted on certain essential provisions, but also failed to take account of certain inviolable theories relating to the aspect of sexual violence.
When one looks at the current workplace scenario, an analysis of the Indian Act for the said problem becomes increasingly necessary. Recent high profile cases such as the TarunTejpal case, and the allegations against the Supreme Court Judges have brought considerable attention to the problem of sexual harassment in India. This article focuses on the complexities that grip the problem, and carries out a specific legal analysis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, so as to bring across the fault lines that pervade the Act, which need to be looked into.
Sociological Perspective: Feminist Strands and Complexity of the Issue
Sexual harassment as a phenomenon entails the workplace as its focal point. Thus the very nature of working environment brings into picture the aspect of ‘power’, which has pervaded accounts of sexual harassment in all literatures. Power, in turn, is again symbolic of a highly exclusionary concept, particularly with respect to the position of women in the society. Therefore feminist scholarship has characterized sexual
6. (1999) 1 SCC 759.
7. (2009) 2 SCC 210.
8. Catharine A. Mackinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination, 19 Columbia Law Review 116, 128(1979).
harassment within broader patterns of discrimination and privilege, thereby relating the phenomenon to sex-based inequality.
Feminist theory is replete with concepts that tend to explain the origin and continued manifestation of sexual harassment in the workplace. The most dominant amongst those is the concept of ‘hegemonic masculinity’. Hegemonic masculinity as a concept is symbolic of the society privileging a single normative idea of male behavior, one that is dominating, especially with respect to the opposite sex. Thus it entails mobilizing masculinity in ways that often exclude and cause harm to women as a group.
The said concept again relates back to the aspect of power, and women are targeted if they challenge their subordinate position in the gender system. Sexual harassment becomes a tool to police appropriate ways of gender positioning in the workplace, and to penalize non-conformity with their specific roles. Thus sex-based social standing is to be respected and going against the norms is punished through the tool of harassment.
This takes us to another highly degrading concept of ‘attributional bias’, a concept that is extremely pervasive in the workplace. The appropriateness of behavior is paid huge importance in this, however being highly reflective of the stereotypical notion regarding females, particularly regarding their conduct in the workplace. Thus the dominant notion then becomes that the subjective feelings of the harasser have been aroused through the conduct of the women who has been harassed, mainly due to non-conformity of the female to the attributes that have been assigned to her. Thus this ‘person-caused behavior’ could be as result of ‘revealing clothes’, ‘openness of the
9. Michele Antoinette Paludi, Feminism and Women’s Rights Worldwide, 30 Personality and Individual Differences 350, 364 (2010).
10. Supra 1.
11. Supra 1.
12. Supra 5.
13. Supra 5.
14. Philip J. Corr and Chris J. Jackson, Dimensions of Perceived Sexual Harassment: Effects of Gender and Status, 30 Personality and Individual Differences 521, 527 (2001).
15. Ibid.
female colleague’ etc. The onus of regulating sexual tensions is put on the women, thereby giving a freeway to the males in case of any sexual misconduct on their part.
The refection of such discriminatory attitude can be aptly showcased through two models. One of the models is the ‘vulnerable victim’ model that is representative of a situation where the perpetrator is organizationally superior to the victim. The workplace authority of the victims in these situations is highly limited and therefore it becomes easier for the perpetrator to subject them to harassment. However another model, one that has surprisingly high pervasiveness in today’s world is the ‘power-threat’ model. This model is representative of those situations where the perpetrator is in a superior position to the victim. When women are able to crack the glass ceiling and attain leadership positions, stereotypical gender beliefs about their “natural” abilities continue to shape perceptions of their job performance. Thus women are many a time seen as undeserving of the position that they have attained in the society. These ‘assertive’ women tend to destabilize the gender-hierarchy that exists in the society and thus are posing a humongous threat to the men. The reports of harassment indicate that such a model is actually on the rise in the current scenario. Many argue that this is mostly as a result of increased awareness amongst the more affluent females, i.e. those who are at the top of the ladder. However one really needs to analyze and take into perspective the sociological connotation of such power threat perception, wherein a stereotypical masculine attitude would historically be more intolerant to dominance rather than vulnerability.
Interaction with Labour Law: The Need for the Act
The essential problem with sexual harassment is that it emphasizes the sexuality of victims over their role as workers and thereby imposes less favourable working
16. L. Brooks and A.Perot, Reporting sexual harassment: Exploring a predictive model, 15 Psychology of Women Quarterly 27, 35 (1991).
17. Supra 1.
18. Martha Farrell, Engendering the Workplace: Gender Discrimination and Prevention of Sexual Harassment in Organizations, 19 (1st ed., 2014).
19. Ibid.
20. Ibid.
21. Supra 9.
conditions upon such workers on the basis of their gender. The essence and aim of Vishaka judgment was to address this problem. Dealing with the gangrape of Bhanwari Devi, the Supreme Court in Vishaka emphasized on the fact that the sexual violence inflicted against the victim showed a serious lapse on part of the state government to provide ‘safe working environment to the Saathins’, i.e. their employees. Hence apart from the traditional criminal law remedies in terms of sections 354 and 509 of the Indian Penal Code, there was a requirement of a comprehensive legislation that prevents and confronts the issue of sexual harassment at workplace, through a duty on the employer and the employees.
It is in light of these stipulations that The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013gets intrinsically linked with Labour Law. Labour law relates to the relationship between the employers and the workers, thereby emphasizing on the conditions of work. Sexual harassment degrades the working conditions of women workers, and thus the Act addresses this problem through the labour law paradigm. It becomes necessary to clarify at the outset that the Act specifically relates to employment relationships and does not cover acts arising out of the conduct of a party that does not fall within the said purview. Thus the Act contains stipulations through which the employers can take actions only against their employee(s). For a third party, however, all suitable assistance needs to be provided for helping the victim file the complaint in the appropriate forum.
While the criminal law framework provides for specific penal punishments , the Act provides redressal of a ‘misconduct’ through the service rules applicable to the employee or the procedure of redressal stipulated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules of 2013, both
22. Ritu Gupta, Sexual Harassment at Workplace: A Detailed Analysis of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, 19 (1st ed., 2014).
23. Supra 3.
24. Supra 22, at 34.
25. Indira Jaising, Sexual Harassment at Workplace, 157 (2nd ed., 2014).
26. S. 11, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
27. Supra 22, at 30.
28. Section 354A (added as per Criminal Law Amendment Act 2013) of the Indian Penal Code, 1860 provides for punishment ranging from imprisonment one to three years, along with fine.
29. S. 11(1), the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
of which relate to workplace oriented punishments entailing disciplinary actions such as warning, censure, termination from service etc. Therefore the Act seeks to eliminate specific deficiencies in the workplace environment though the labour law regime, which was not addressed earlier through the criminal law framework.
The orientation of the Act seems to encourage this understanding. If one looks at the conciliation procedure, the aim is to do away with unnecessary litigation arising out of situations that can be solved by a warning or accommodative discussions. Although entailing certain drawbacks, the said provision seeks to assuage certain workplace altercations, which otherwise could result in a death blow for the workplace relationship of the complainant, if the said altercation goes to a court. Further one can also notice that a clear distinction is drawn between findings of Internal Complaint Committee / Local Complaint Committee, and the decision and action taken by the employer. This is in consonance with the principles of employment law, where the findings of the disciplinary committee are recommendatory in nature, and it is the decision of the employer or the appointing authority or the disciplinary authority to take or not take such action.
Prevention lies at the core of this Act, whereby there are specific duties that have been put on the employer to ensure that there is increased awareness about the problem of sexual harassment, and the consequences that can ensue owing to the presence of this Act, something that one finds missing in the criminal law framework. Further, the Act addresses the inadequacy of a rigid framework relating to redressal of sexual harassment in certain sectors, such as the unorganized sector, or places where the service rules are not present, by covering adequately each and every domain of the labour paradigm through provision of a thorough procedure in The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, the non compliance of which would lead to imposition of penalty on the employer.
30. Supra 22, at 153.
31. Ibid.
32. Supra 25, at 146.
33. Ibid.
34. S. 19, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
35. Rule 9 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013 read with Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
The Act: Complications and Lacunae
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 was aimed at protecting women against sexual harassment at the workplace and redressal of complaints for matters related to sexual harassment. The Vishaka judgment went a long way is dealing with the issue of sexual harassment and hence one would expect an Act without any lacunae, especially if the Act tends to come after 16 years of a highly elaborate decision. However on a critical analysis of the Act, there are certain areas where more clarity is required and it becomes important to understand the problematic connotations associated with them.
Definitional Ambiguity
The definitions that have been given in the Act go to a large extent in stating the scope and ambit of the Act. If one looks at the definition of ‘aggrieved women’, it becomes clear that any woman, whether employed by the workplace or not, could file a complaint. However the said definition leaves ambiguity to the extent as to whether it is necessary for the said women to be ‘working’, in terms of employment at some other place. Thus these kinds of ambiguities can arise in cases of freelance researchers, who can said to be working, however their employment may not be defined in terms of a specific employer. Moreover, this further creates the problem of the extent to which this definition can increase the scope of the Act. If one includes ‘any women’ within the purview of the definition, then the same can also extent to include students, clients, visitors etc., which clearly would not relate to the essential purpose for the formation of the Act, i.e. for establishing a safe working environment for the workers. Further, the geographical dimensions of ‘workplace’ are restrictive, thereby rendering many situations out of the ambit of the Act. Thus if one gets a case of sexual harassment between co-workers in a Roopan Deol Bajaj type scenario, the
36. The Preamble,the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
37. Ibid, S. 2(a).
38. RupanDeol Bajaj v. Kanwar Pal Singh Gill, AIR 1996 SC 309 (The incident in the said case took place at a private party, where Mr. Gill misbehaved with RupanDeol Bajaj).
Act would not be able to provide any recourse, owing to the incident happening outside the purview of ‘workplace’, although arising out of the workplace relationship between the parties.
The case of contract workers also seems ambiguous. If one looks at the definition of ‘employee’, a person employed through a agent (including contractors), along with contract workers are covered. However there is no clarity given in the Act as to how the disciplinary enquiry of such an employee is to take place. Whether the principle employer would take disciplinary action or the contractor would be a matter of confusion. Looking at the design of the act which gives the employer the mandate to take action as per the service rules or impose disciplinary punishment in the form of suspension, wage-cut etc. through the rules, it could be construed that the disciplinary enquiry would be carried out by that employer which has more control over such work related stipulations of the employee, such as payment of salary, power of appointment, dismissal etc.
The definition of sexual harassment, which forms the core of the act, also needs to be looked into. If one looks at the definition of sexual harassment, it becomes aptly clear that there is no specific mention of electronic means in the said definition. Taking into account the present day scenario, where technology occupies a major portion of a person’s professional and personal life, an omission of the said nature cannot but be a master blunder. Further the definition runs into the problem of subjectivity by using the word ‘unwelcomed’. The perspective of ‘reasonable man’ comes into picture with this, a perspective that is very difficult to measure or quantify. Therefore there might be different perspectives of unwelcomed that might exist in the society, and it becomes difficult to stipulate a standard by taking into account one of those perspectives. Thus the definition needs to be more evolved, so as to arrive at a more determinate standard for assessing cases of sexual harassment.
Ignoring the Power Dimension
39. S. 2(f), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
40. Ibid, S. 11.
41. Ibid, S. 2(n).
42. Ibid.
43. Supra 9.
An aspect that needs consideration at the outset is the limitation of time period, within which the complaint has to be filed. A time period of 3 months is given and if the complaint if filed after 3 months, then it would not be accepted, unless the committee feels that it should be. Setting up of such a time frame is extremely harmful for curbing the act of sexual violence, as a woman might be under tremendous pressure to not file the complaint as a result of the stigma attached to the act of sexual harassment. Moreover the women might also want to wait till the brooding power of the perpetrator has been removed through transfer, posting etc. Further the Act should have also taken into account the trauma that is associated with sexual violence, such as depression, anxiety etc., which might render the filing of the complaint impossible till the victim has recouped her strength. Recent cases of harassment against certain Indian Supreme Court judges exemplify the fact that in many cases, the victim might not be willing to complain immediately, owing to the power and position of the perpetrator.
Societal stigma related to the act might also lead to violence perpetuated against the complainant. . However if one looks at the Act, there is no protection against victimization that has been provided in the definition. This leads to a highly problematic situation, wherein the workers would be in a constant conundrum, in terms of whether they should file the complaint or not.
The conciliation procedure adds to the problem. As per the Act, the Internal or Local Committee can take steps for conciliation between the perpetrator and the victim, if the victim wants so. Moreover it has been stated that after conciliation is arrived at,
44. S. 9(1), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
45. Indira Jaising, Eliminating Sexual Harassment at the Workplace: Broadening the Discourse on Gender Equality, 2 Commonwealth Law Bulletin 375, 384 (2014).
46. Ibid.
47. A law intern had alleged that Justice A.K. Ganguly had sexually harassed her while he was a sitting Supreme Court Judge, during her internship in 2012. A few weeks later, another law intern made a similar allegation against Justice Swatanter Kumar i.e. he had sexually harassed while he was a sitting Supreme Court Judge during her internship period.
48. NainaKapur, Workplace Sexual Harassment, The way things are, 48 Economic and Political Weekly27, 28 (2013).
49. S. 2(a), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
50. Ibid, S. 10(1).
no further inquiry would take place. Although meant to ensure that cases that can be solved through an accommodative approach do not get entangled in litigation, many believe that this provision is highly insensitive, as providing a mechanism of compromise for an act of sexual violence undermines the dignity of women. Moreover this provision also undermines the fact that many women, particularly in the unorganized sector, aren’t adequately aware about the remedies that are available to them and hence would be easily coerced into entering in a settlement with the perpetrator. Thus this clause in a sense negates the entire purpose of the act.
Another unconcerned provision comes in the form of ‘false and malicious complaint’ in the Act. As per this provision, a woman would have to face action if there is a false or malicious complaint that has been filed by her. This provision defeats the very purpose of a gender-specific legislation such as this one. It places a presumptive notion in the minds of the people that the complaint could be filed for ulterior motives also, thereby perpetuating the hatred against women and diminishing the cause of woman, rather than promoting it. Already faced with the burden of power politics in the workplace, this provision adds to the woes of a victim who plans to file a complaint.
Procedural Inconsistencies
The constitution of the committees poses a big problem. It is difficult to miss the broad ambit of qualification that has been prescribed for the members. Of particular importance is the one emphasizing on a ‘commitment to the cause of women’. No adequate specifications have been given as to the extent to which there needs to be commitment to the cause and what work they should have done in that particular field. Moreover no requirement for an ‘expert in the field of law’ has been provided as
51. Ibid, S. 10(4).s
52. Supra 25, at 149.
54. S. 14(2), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
55. Supra 34.
56. Supra 34.
57. Chapter II and III, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
a qualification for the members. The only requirement is that they need to have legal knowledge, which is a highly broad standard for an Act like sexual harassment.
Another self-negating factor is that the employer is supposed to nominate members to the committee, i.e. the Internal Committee. This provision completely ignores the power dynamics that is generally prevalent in the workplace. The power-threat dimension that has been talked about earlier in this article does not get taken care of when such a provision is there. Hence such a provision gives an upper hand to the employer who might be the perpetrator himself, or to an employer who is in direct competition with the victim. A possible solution could be the creation of an external committee consisting of eminent members from the fields of law, social science etc., who could nominate the members for the internal committee based on their track record, performance in the company, reputation etc. Such a process would be more transparent and would help to a great extent in dealing with the power dynamics of the workplace. Another process of nomination could be through voting amongst the employees, which to a certain extent would ensure a fair committee to the woman employees.
Monetary Loopholes
A major fault in the Act is that there is no responsibility that has been put on the employer with respect to maintaining a safe environment in the workplace. Although Chapter VI of the Act stipulates certain duties for the employer, there is no provision to ensure mandatory compliance of such duties, i.e. no penalty in case of non-compliance. No stipulation exists for compensation from the employer, which could highly contribute in the reluctance of the employer in taking the duties seriously. A meager sum of Rs 50,000 is stipulated as penalty if the employer fails to constitute an ICC, take action under sections 13, 14 etc. The interesting part is that while there is no penalty for not adhering to the duties, a criminal offence is stipulated on part of the employer if he does not take action against false and malicious
58. Ibid.
59. S. 4(2), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
60. Supra 44.
61. S. 26(1), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
complains. Thus these provisions need overhauling and modification in relation to the object and purpose of the act.
Confidentiality also holds high importance in matters such as sexual harassment. The Act addresses this aspect by stating that confidentiality needs to be maintained in terms of non-revelation of the identity of the aggrieved woman, respondent etc. However the penalty that has been imposed is a meager sum of Rs 5000, which would surely not have any deterrent effect, thereby making the provision otiose.
Conclusion
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013leaves a lot to be asked for. The Act has certainly not stood up to the expectations that would necessarily await an act that has been in limbo for about 16 years. Certain critical aspects have not been paid attention to and many provisions are self-defeating and nullifying. A general overhauling of the Sexual Harassment Acts, as they are, all around the world, has not been done and this becomes clearly evident when essential mechanism procedures such as clinical counseling facilities, medical insurances related to the violence, provision of legal expertise, compensation from the employer etc. have not been made available.
The Act, which should have been highly victim friendly, poses problems for the victim at each and every step. Law should be representative of the societal changes, especially in areas such as sexual violence and exploitation. The failure to link legal development with societal development in these cases says a lot about how much ignorance is there towards highly degrading activities like sexual harassment. The legislature needs to really revisit the Act and deal with the glitches that pervade the Act. A resolute and concerned effort is required on part of the legislature to deal with this problem and eliminate it in a highly afflicted society like India.
62. S. 14 read with S. 26(1)(b), The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.
63. Ibid, S. 16.
64. Ibid, Rule 12.
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| GIBRAN NAUSHAD is a 4th year law student pursuing B.A.LL.B (Hons.) from National Law University, Delhi and SUSANAH NAUSHAD is a practicing lawyer.
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