SEXUAL HARASSMENT OF WOMEN IN THE WORK PLACE

CAESAR ROY, LL.M

ADVOCATE

For centuries, the women have been subjected to various forms of exploitation, harassment and torture both in physical and sexual capacities. Women in the workplace experience a wide range of sexual conducts, ranging from sexist comments to non-violent sexual contracts to violent sexual impositions. Sexual harassment, which was an invisible problem until quite recently, has now become a major social problem with the widespread entry of women in to the labour force. Today, almost all workingwomen are vulnerable to sexual harassment irrespective of their status, personal characteristics and the types of their employment. In the recent past, the social scientists, various guidelines, resolutions and courts have defined sexual harassment broadly, both in physical and legal perspectives.

The courts in India specifically depend on two sections of the Indian Penal Code, namely, Sec. 354 (outraging the modesty of a woman) and Sec. 509 (insulting the modesty of a woman). Although the Secs. 354 and 509, IPC protect women in general from certain categories of sexual misconducts that seem offensive or disgustive in nature, the protective measures are not enough to safeguard the interests of working women. These sections are attracted only where the intention of the harasser was to outrage or insult the modesty of a woman. In the workplace, the idea of employer or supervisor has not been to outrage or insult the modesty of a woman employee, but to gain sexual access through the promise or reward of job-related benefits or to gain sexual favours through the threat of job-related punishment. There are many instances of sexual misconducts that many workingwomen feel offensive or disgustive, but not covered either under Sec. 354 or Sec. 509 of IPC.

A woman who is economically worse off and in dire need of job may choose not to pursue criminal charges for promise of retaining her job. In our society, most cases of sexual abuse go unreported because of the traumatic trial procedure and the social stigma involved with sexual matters. Although the Indian constitution guarantees every citizen the equality of opportunity in the economic field, the true equality has not been achieved even after fifty-six years of independence. Most of the women who had paid work tend to be concentrated in the poor service jobs, such as personal secretaries, nurses, receptionists, telephone operators, typists, clerical posts etc. where men are typically in an immediate supervisory and physically proximate position that provides them an opportunity to exploit their subordinate women. This shows how women at work are vulnerable to the whim and fancy of male employers or supervisors, who have the power to reward or punish their subordinate women employees economically.

The Supreme Court in Vishaka v. State of Rajasthan [(1997) 6 SCC 241] held that each incident of sexual harassment of woman at workplace results in violation of the fundamental rights of “Gender Equality” and the “Right to Life and Liberty”.  It is a clear violation of the rights under Articles 14,15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g). The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.

Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognized basic human right. To check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and safeguards against sexual harassment implicit therein and for the formulation of guidelines to achieve this purpose. In the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, guidelines and norms are hereby laid down for strict observance at all workplaces or other institution, until a legislation is enacted for the purpose.

The court held that sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:

(a)    Physical contact and advances;

(b)   A demand or request for sexual favours;

(c)    Sexually-coloured remarks;

(d)   Showing pornography;

(e)    Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a)    Express prohibition or sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways.

(b)   The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c)    As regards private employers steps should be taken to include the aforesaid prohibition in the standing orders under the Employment (Standing Orders) Act, 1946.

(d)   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 at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Where such conduct amounts to specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by

making complaint with the appropriate authority and such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate action should be initiated by the employer in accordance with those rules. The court direct that the above guidelines and norms would be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the workingwomen. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.

Each incident of sexual harassment, at the place of work, results in violation of the Fundamental Right to Gender Equality and Right to Life and Equality – the two precious Fundamental Rights guaranteed by the Constitution of India. The courts are under a constitution obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations, admits of no debate.