What is Sexual Harassment at Workplace:
In Visakha Judgment, the Supreme Court defines sexual harassment at workplace. The Vishaka judgement provides the basic definition of sexual harassment at the workplace. According to the Supreme Court, such behaviour "includes such unwelcome sexually determined behaviour (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. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto."
Thus the “act simplicitor” like demand or request of sexual favour, sexually coloured remarks, or any other conduct of sexual nature is not a sexual harassment at work place. Such acts may be an immoral act or illegal act and punishable under various other laws, these are not sexual harassment at work place. Such acts becomes sexual harassment, only when due to womens employment it becomes difficult to object, for the women may have reasonable apprehension that such objection may interfere with her employment. It needs to emphasise here that the concept of “sexual harassment at workplace” has nothing to sexual act per se, it comes into operation only when such acts interfere with the right to employment by creating a hostile work environment.
A plain reading of Visakha Judgment shows that the ruling has been made based on right to equality, right to life and right to livelihood. Although the judgment has been delivered in case of a women petitioner, the court throughout judgment emphasized gender neutral nature of the right.
The Protection against Sexual Harassment of Women Bill, 2005 (hereinafter referred to draft bill) is a dangerous piece of legislation, which will create more problem than it solves. I oppose the bill on the following grounds:
Firstly it is a gender biased laws. The act of sexual harassment at workplace can happen both against men and against women employee. It can be argued that more women are victim of sexual harassment, however that fact cannot disentitle the smaller number of male victims from legal protection. Thus I demand that the proposed legislation be made gender neutral.
Secondly, it is to be noted that in Visakha Judgment, the court was examining petition of a women, and hence the definition given by the court is women centric. There are situation where males face specific type of sexual harassment. Thus while allotment of duties in an organisation, risky and tough work is given to males employee which is a blatant gender discrimination and sexual harassment at workplace. In granting leave etc., discrimination is made against men, which is another form of sexual harassment. Another subtle form of gender discrimination at work place is prevalent. Many a times it is felt that women employee gain advantage over men employee by extending sexual favours to seniors. This is a blatant form of sexual discrimination against men. Thus the definition must include male specific form of sexual harassment at workplace. In equal opportunity laws of US, sexual harassment has been defined Sexual Harassment as - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. This is a gender neutral definition, which takes into consideration various forms of subtle harassment of sexual nature at workplace.
Thirdly, it is seen from the definition of sexual harassment that the act has been defined as “unwelcome sexual conduct”. It is irrelevant as to whether such conduct is related to work or employment or not. Such wide and inclusive definition of offence will merely results in wild and false allegations which will hamper not only the accused individual and individual sense of justice, it will destroy the work environment in general and will result in closure of various businesses. When such false allegations will become more widespread, it will result in general distrust of women due to acts of some unscrupulous women and will affect women’s future employability. In this connection, I would like to point out that blatant misuse of dowry acts are resulting in same situation, where every complainant is being looked with a sense of suspicion.
Fourthly, the act can be a tool of extortion. The provision of dispute resolution prior to enquiry (Section 40) is creating a situation where it will become very easy for a women employee to make false allegations and then seek dispute resolution. As the person charged with allegations, even when innocent, is likely to loose his job, reputation etc., he will become a very soft target of extortion. An act which promotes such type of extortion needs to be opposed. It cannot be denied that a victim must be compensated, even monetarily if by the alleged act she has lost some material gains. But such power should be there at the hand of enquiry authority or disciplinary authority, who can award appropriate compensation if the situation so requires.
Fifthly, it is to be seen that the definition of the act solely depends upon a mental element, i.e. “unwelcome”. Thus if the sexual conduct is not unwelcome, it is not an offence. There is no definition of “unwelcome” or “communication of unwelcomeness” to the accused. It should be provided that when a reasonable person is expected to understand that the act is “unwelcome”. The alleged act should be made offence, only after communication of unwelcomeness by the victim. As welcomeness or unwelcomeness depends upon the mental state of the victim/accused, it is suggested that polygraph test may be applied in these allegations so that real perpetrators of crime can be punished and innocent persons are not harassed by false and motivated allegations.
Sixthly, it needs to be legislatively recognized that abuse of law exists and false allegations are leveled. Such false allegations are eating into the very faith of our judicial system. As the legislation does not make effort to discourage false allegations, every accused claim false charges and break the very faithfulness in legal procedure. Section 64 of the proposed Act is making same mistake. It gives immunity to false complainants. Further, it is giving real perpetrators of crime and excuse to level false allegation of false allegations. What should be provided that if the complaint is not found to be true, there must be inquiry into the genesis of the complaint itself and the complainant if found guilty, appropriate action should be taken against the complainant. I propose that the definition of sexual harassment must include “false charges of sexual harassment”.
In view of these, it is submitted that such changes in the proposed laws to be made to achieve the objective of safe and secure work environment. A work environment cannot be made secure for women by making it unsecure for men. Further, gender biasedness is such laws will result in division of society on the based of gender, a far more dangerous thing than division of society based on caste or religion.
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