EMPOWERMENT OF WOMEN: A SPECIAL STUDY ON SEXUAL HARASSMENT OF WOMEN AT WORK-PLACE AND LAWS RELATING TO SUCH OFFENCE

By: Dipannita Ganguly

“There is no tool for development more effective than Empowerment of Women”

Kofi Annan

 What is ‘Empowerment’?

Empowerment can be referred to as the capacity of the individuals or groups or communities to have control or to have certain degree of autonomy of their circumstances, to exercise their power in order to achieve the goals they wish for and the process by which individually and collectively they are in a position to help themselves and others to synergize their quality of living. Empowerment refers both to the process of self-empowerment and to professional support of people, which enables them to overcome their sense of powerlessness and lack of influence, and to recognise and eventually use their resources and chances. The term empowerment is also used for an accomplished state of self-responsibility and self-determination.

Gender empowerment conventionally refers to the empowerment of women, and has become a significant topic of discussion in regard to development and economics. It can also point to approaches regarding other marginalized genders in a particular political or social context. This approach to empowerment is partly informed by feminism and employed legal empowerment by building on international human rights. Empowerment is one of the main procedural concerns when addressing human rights and development. The Millennium Development Goals and other credible approaches/goals point to empowerment and participation as a necessary step if a country is to overcome the obstacles associated with poverty and development.

The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles. The Constitution not only grants equality to women, but also empowers the State to adopt measures of positive discrimination in favour of women.

Sexual Harassment-Concept

In legal terms, sexual harassment is any unwelcome sexual conduct on the job that creates an intimidating, hostile, or offensive working environment. Sexual harassment is any offensive conduct related to an employee’s gender that a reasonable woman or man should not have to endure while at work. The laws prohibiting sexual harassment are gender blind; they prevent women from harassing men, men from harassing other men, and women from harassing other women. Sexual harassment is behavior with a sexual connotation that is abusive, injurious and unwelcome. For the victim, sexual harassment has direct consequences for the maintenance or improvement of her living condition and or places her in an atmosphere of intimidation, humiliation or hostility. Sexual harassment is both sexual and unwelcome. It may be constituted by many or single act and broadly speaking the intention of the harasser is not relevant.

 However, the vast majority of cases involve women workers who have been harassed by male co-workers or supervisors.

The term “sexual harassment” first came into use in the late 1970s in the United States. The term’s origins are generally traced to a course on Women and Work taught by Lin Farley at Cornell University. In 1979, Catherine MacKinnon, a legal scholar from the United States, made the first argument that sexual harassment is a form of sex discrimination prohibited by the constitution and civil rights laws of the United States. Since then many international bodies, national legislatures and courts have prohibited sexual harassment but have not agreed on a universal definition of the term.

There are a few common elements in definitions of sexual harassment worldwide. Generally speaking, behaviour constituting sexual harassment in the workplace must:

(1) Occur in the place of work or in a work related environment;

(2) Occur because of the person’s sex and/or it is related to or about sex;

(3) Be unwelcome, unwanted, uninvited, not returned, not mutual; and

(4) Affect the terms or conditions of employment (quid pro quo sexual harassment) or the work environment itself (hostile work environment sexual harassment).

Kinds of Sexual Harassments

1) Sexual coercion-

  • It is known as quid pro quo sexual harassment in the United States.
  • Sexual Coercion is a type of harassment which has direct results in some consequence to the victim’s employment. It is employment discrimination.
  • Sexual coercion is under a condition of employment, where an openly or implicitly offer in keeping a job or getting a promotion is made by a supervisor to an employee in exchange for sexual favours. Such person normally has the power over promotion or raise of the employee.
  • In sexual coercion, promotion and favourable job benefits will follow if an employee takes the advantage and consented to sex. On the contrary, if the employee rejects, the job benefits are denied.

Quid pro quo sexual harassment occurs when an employee gets on the promotion track or even gets to keep his/her job is based on if the employee submitted to or rejected sexual advances or other types of inappropriate sexual comments. For example, if a supervisor were to tell an employee she would be more likely to be promoted if she dressed sexier, that would be considered quid pro quo sexual harassment. Remember, if an employee submits to the sexual advance or comment, it does not necessarily mean that the employee is then barred from ever making a complaint. If the employee should change her mind, she can still complain against the supervisor who made the comment.

2) Sexual annoyance

  • It is also known as hostile environment sexual harassment.
  • Sexual annoyance is a demeaning and unwelcome sexually related behaviour that is offensive, hostile or intimidating to the victim, but has no direct connection to any job benefits. However, the annoying behaviour creates an offensive working environment which affects the victim’s ability to continue working.
  • Sexual annoyance includes sexual harassment by an employee against a co-employee. Similarly, sexual harassment by a company’s customer against an employee also falls into this category.

This type of sexual harassment occurs when a co-worker or supervisor in the workplace makes sexual advances or comments to an employee that, while not affecting promotions or the future of the employee’s job makes the working environment of the employee offensive and hostile. In general, the comments tend to affect the employee’s ability to do her job. Some instances of hostile environment sexual harassment can be:

  • Personal questions of a sexual nature
  • Vulgarities and other offensive language
  • Physical conduct that is sexual or degrading to any reasonable person
  • Any sexually explicit or offensive pictures or literature that is in plain sight of other employees
  • If the employer was aware, or should have been aware, of the sexual harassment and did not take action to discipline the offender and correct the situation, the employer can be liable as well as the offender.

 International and National Law Relating To Sexual Harassment

  1. The UN Convention of the Elimination of All Forms of Discrimination against Women, 1979:

The UN Convention of the Elimination of all forms of Discrimination against women (CEDAW) adopted in 1979 at Beijing to which India is also a signatory recognizes and also acknowledged that Sexual Harassment is a serious offence and has categorized it as gender discrimination and a form of gender based violence.

  1. The Protection of Human Right Act, 1993:

According to the Protection of Human Right Act, 1993 “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. Women rights are also Human rights and have to be protected allow them to live with dignity without fear of their safety and security.

  1. The Constitution of India, 1950:

Sexual Harassment of a woman employee at workplace, tantamount to violation of the ‘right to gender equality’ and also the ‘right to life and liberty’– the two most precious fundamental rights guaranteed in the Constitution of India under Articles 14, 19 and 21.

  1. The Indian Penal Code, 1860:

The rape laws in India is wider in comparison to the existing laws on sexual harassment and is to be found under Section 375 and Section 376 of the IPC. The laws on sexual harassment are enlisted under Sections 294, 354 and 509 of the IPC.

 Rules, Regulations and Laws in India in relation to Women Empowerment

A. Role of Legislation

Part III of the Constitution of India “give a constitutional mandate for certain Human Rights-called Fundamental Rights in the Constitution adapted to the needs and requirement of a country……..it also provides a constitutional mode of enforcing them”(Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly). Part IV on the other hand prescribes the Directive Principles of State Policies. The difference between Part III and Part IV is that while Part III prohibits the State from doing certain things, namely from infringing any Fundamental Rights, Part IV enjoins the State to do certain things. This duty is however not enforceable in Law but the court cannot ignore what has been enjoined upon the State by Part IV.

The relevant Articles of Constitution which provides for women empowerment are mentioned as below:

  1. Article 14: Equality before Law
  2. Article 15 clause (3): Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; clause (3)—Nothing in this article shall prevent the state from making any special provision for Women and children.
  3. Article 16: Equality of opportunity in matters of public employment.
  4. Article 21: Protection of life and personal liberty.
  5. Article 38: State to secure a social order for the promotion of welfare of the people.
  6. Article 39 clause (a): ……….that the citizens, men and women equally, have the right to an adequate means of livelihood. 
 B. An Assessment of the Practical Scenario

The causes of sexual harassment at work can be complex, and steeped in socialization, politics, and psychology.   Work relationships can be quite intimate and intense, and those involves sharing common interests.  Employees are dependent on each other for teamwork and support, and are dependent on their supervisor’s approval for opportunities and career success. Closeness and intensity can blur the professional boundaries and lead people to step over the line.

Despite laws, government’s plan of action, the international conventions and the claims made by authorities the real picture of legal and social protection is far from theory. The data shows that in every three minutes, one crime was committed against women in India in 2002 and it is expected that the growth rate of crimes against women would be higher than the population growth rate by 2015.

In recent years, there has been an alarming rise in atrocities against women in India, every 26 minutes a woman is molested, every 34 minutes a rape takes place, every 42 minutes a sexual harassment incident occurs, every 43 minutes a woman is kidnapped, and every 93 minutes a woman is burnt to death for dowry. One quarter of the reported, rapes involve girls under the age of 16 but the vast majority is never reported. Although the penalty is severe, convictions are rare.

Despite Supreme Court directives women are still harassed at working place. Social compulsion and legal complexities compel a woman to suffer indignities and torture until she has no other option but to put an end to her life. In most of the cases accused get acquitted because of lack of proper proof.

Thus, in spite of a plethora of progressive and protective legislations favouring women, we have failed in our aims to uplift the social status of Indian women. Proper implementation of these laws will go a long way in curbing crimes against women and improving socio-economic status of women. In view of the atrocities against women – the legislature amended the Indian Penal Code, 1860 (s. 304-B: Dowry Death and s. 498-A: Cruelty) In spite of the amendments and new laws (Domestic Violence Act, 2005) the violence is seen everywhere, even at workplaces.

Theoretically, the victims must complain to competent authority about the harassment, but we have to find out the reason why they fail to file immediately a formal complaint about harassing conduct. Women who reported sexual harassment were perceived as higher in qualities of assertiveness, they too were perceived as less trustworthy and less feminine. Additional result suggests that both men and women thought that members of the opposite gender would derogate the woman if she labelled and/or reported the incident .One of the major obstacles in delivering justice in sexual harassment cases is the poor quality of investigations. The reason behind this is gender bias and inefficiency of the police. Police corruption undermined efforts to combat the offences. In a study conducted by Transparency International it was found that in India the judiciaries are constitutionally independent but this independence is often not reflected in practical terms. So there is a need to make corruption free to all our machinery related to law.

C. Role of Judiciary in Women Empowerment in India

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3rdSeptember, 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26th February, 2013.The Bill got the assent of the President on 23rdApril, 2013. The Act came into force from 9th December, 2013. This statute superseded the Vishakha Guidelines for prevention of sexual harassment introduced by the Supreme Court of India.

Guidelines as stated by Honourable Supreme Court of India in Vishaka v. State of Rajasthan, AIR 1997, SC 3011:

 >  All employers persons imcharge of work place whether in public or private sector, should take appropriate steps to prevent sexual harassment without prejudice to the generality of his obligations, he should take the following steps:

(i)     Express prohibition of sexual harassment which includes physical contact and advances; demand or request for sexual favours; sexually coloured remarks; showing pornographic or any other unwelcome physical, verbal or nonverbal conduct of sexual nature should be noticed and circulated in appropriate ways.

(ii)    The rule or regulation of Government and public sector bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(iii)    As regards to private employers, steps should be taken to include the aforesaid prohibitions in Standing Orders under the Industrial Employment( Standing Orders) Act, 1946

(iv)    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 work place and no women should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

Where such conduct amounts to specific offence under IPC or under any other law, the employer shall intimate appropriate action in accordance with law by making a complaint with the appropriate authority.

The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

 Some Landmark Judgments of the Supreme Court in Matters of Sexual Harassment at the Workplace                                                  

A. Miss RadhaBai v. The Union Territory Of Pondicherry, AIR 1995, 4 SCC 141

In 1973, when Radhabai, secretary to D. Ramachandran, the then State Social Welfare Minister protested against his abuse of girls in welfare institutions, he attempted to molest her; and followed by dismissing her. In 1995, the Supreme Court passed a judgement in her favour, with back pay and perks from the date of dismissal

B. Vishaka v. State of Rajasthan and Others, AIR 1997,SC 3014

 A leading sexual harassment case concerning a social worker (Sathin) in the State Women’s Development Program in Rajasthan who was gang-raped as an act of revenge for her work campaigning against child marriage. Prior to the rape, the women employees had complained of sexual harassment to the State, but no action was taken. The State had no functional policy on sexual harassment and there was a failure of the part of authorities to pursue the case. A public interest litigation was filed by the Lawyer Collective and supported by a number of women’s organisations following which the Vishaka Guidelines emerged in 1997.

C. Apparel Export Promotion Council v. A.K. Chopra, AIR 1999, SC 625

In this case, the accused-respondent tried to molest a woman employee (Secretary to the chairman of a Delhi based Apparel Export Promotion Council) Miss X, a clerk cum typist on 12th august, 1988 at Taj Hotel, Delhi. The respondent persuaded Miss ‘X’ to accompany him while taking dictation from the chairman, so that her typing was not found fault with. While Miss ‘X’ was waiting in the room, the respondent taking advantage of the isolated place tried to sit too close to her and touch her despite her objections; and tried to molest her physically in the lift while coming to the basement, but she saved herself by pressing emergency button, which made the door lift open. On a complaint made by Miss ‘X’ a departmental inquiry committee was set up to investigate into alleged allegations. The Bench said:

“In a case involving charge of sexual harassment or attempt to sexually molest, the courts are required to examine the broader probabilities of case and not swayed away by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression ‘molestation’ or ‘physical assault’… The sexual harassment of a female employee at the place of the 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.”

 Impact of Sexual Harassment (On Victim, Society and Accused)

Sexual harassment at work can have very serious consequences both for the harassed individual as well as for other working women who experience it second hand. The consequences to the individual employee can be many and serious.  In some situations, a harassed woman risks losing her job or the chance for a promotion, if she refuses to give in to the sexual demands of someone in authority.  In other situations, the unwelcome sexual conduct of co-workers makes the working conditions hostile and unpleasant- putting indirect pressure on her to leave the job.  Sometimes, the employee is so traumatized by the harassment that she suffers serious emotional and physical consequences- and very often, becomes unable to perform her job properly. The consequences to working women as a group are no less serious.  Sexual harassment has a cumulative, demoralizing effect that discourages women from asserting themselves within the workplace, while among men it reinforces stereotypes of women employees as sex objects.  Severe or pervasive sexual harassment in certain types of businesses creates a hostile or intimidating environment that causes women to leave their jobs and look elsewhere for work or discourages them from seeking those jobs in the first place.

The effect on the morale of all employees can also be serious.  Both men and women in a workplace can find their work disrupted by sexual harassment even if they are not directly involved.  Sexual harassment can have a demoralizing effect on everyone within range of it, and it often negatively impacts company productivity on the whole.

The effects of sexual harassment vary from person to person and are dependent on the duration and severity of the harassing behaviour. Thus, individuals can suffer through a number of psychological effects ranging from irritation and frustration to anxiety, stress, and terror. Individuals may fear retaliation and victim blaming. As we are a small community, there can be concern for coming forward and making a complaint for implications to one’s career and academic pursuits. There can be a tremendous fear of retaliation and backlash, not only institutionally, but also to the community of one’s specific discipline or career path.

Some of the potential effects a victim may experience:

  • Anxiety, frustration, depression, sleeplessness and/or nightmares, difficulty concentrating, headaches, fatigue, shame and or guilt, feeling powerless, helpless or out of control, feeling angry towards the harasser, loss of confidence and self-esteem, withdrawal and isolation, suicidal thoughts or attempts
  • Having to drop courses, or change academic plans; it may impact grade performance
  • Increased absenteeism to avoid harassment, or because of illness from the stress
  • Having one’s personal life held up for public scrutiny – the victim becomes the “accused,” and their dress, lifestyle, and private life will often come under attack.
  • Being objectified and humiliated by scrutiny and gossip
  • Becoming publicly sexualized
  • Defamation of character and reputation
  • Stress impacting relationships with significant others, sometimes resulting in the demise of the relationship; equally, stress on peer relationships and relationships with colleagues
  • Impact on references/recommendations
  • Loss of career

Recommendations of the National Commission for Women (NCW) on safety of women in and around College and University Campuses

In response to barbaric sexual violence against three women students in three different places within a week in Delhi University campuses, in 2002, the NCW called an emergency meeting to discuss the safety of women at educational institutions.

Recommendations that emerged out of the meeting, convened by the National Commission for Women with the Principal Secretary (Home), Delhi Police Commission and heads of educational institutions regarding strategies to prevent the occurrence of rape and sexual harassment in and around campuses, are as follows:

Police

  • More PCR vans should be deployed to patrol educational institutions.
  • Along the lines of women’s helplines, college helplines should also be provided and its number should be prominently displayed.
  • There should be police patrols around educational institutions at least for two hours before and after college gets over.
  • There is a need to improve relationships between the police and educational institutions.
  • Every case of rape must be handled by a woman police officer.
  • The attitude of the police needs to be made more positive towards the victim.

Educational institutions

  • Educational institutions must ensure proper lighting in an around their premises, as darkness is conducive to crime. The height of hedges must be reduced in campuses for proper visibility.
  • An internal security committee should be constituted by all educational institutions, headed by the head of the institution, police officer and student representatives who must be invited for meetings to review the security arrangements. If the need arises, other government departments like the PWD, MCD etc. may be invited to review the security arrangements.
  • The internal security committee should have monthly or bi-monthly meetings and must maintain the minutes of the meeting.
  • Experts should be invited to inspect the college area to assess the security needs and arrangements on campus.
  • Educational institutions must perform their administrative role for the security of the students.
  • Students must be given proper training in self-defence.
  • The telephone numbers of women’s helplines must be provided.
  • Entry into educational institutions must be restricted. Entry should be through identity cards.
  • Construction workers should not be allowed to stay on the premises of the institute overnight.
  • Safety gadgets should be provided in hostels.
  • Educational institutions could engage retired police officers on their security committees/boards.
  • Awareness programmes on the safety and security of students must be conducted on a regular basis.

 Media

  • There is a need to sensitise the media regarding the repeated relay of incidents relating to violence against women. This has negative repercussions on society, especially on children.
  • The National Commission for Women directs the media not to intrude on the privacy of the victim.

Conclusion

Sexual harassment at the workplace is a universal problem. Even though the occurrence of sexual harassment at the workplace is widespread in India and elsewhere, this is the first time it has been recognised as an infringement of the fundamental rights of a woman, under Article 19(1) (g) of the Constitution of India “to practice any profession or to carry out any occupation, trade or business”.

Of late, the problem of sexual harassment at the workplace has assumed serious proportions, with a meteoric rise in the number of cases. Surprisingly, however, in most cases women do not report the matter to the concerned authorities.

In India, Articles 14, 15 and 21 of the Indian Constitution provide safeguards against all forms of discrimination. In recent times, the Supreme Court has given two landmark judgments — Vishakha vs State of Rajasthan, 1997, and Apparel Export Promotion Council vs A K Chopra, 1999 — in which it laid down certain guidelines and measures to ensure the prevention of such incidents. Despite these developments, the problem of sexual harassment is assuming alarming proportions and there is a pressing need for domestic laws on the issue.

India is rapidly advancing in its developmental goals and more and more women are joining the workforce. It is the duty of the state to provide for the wellbeing and respect of its citizens to prevent frustration, low self-esteem, insecurity and emotional disturbance, which, in turn, could affect business efficacy, leading to loss of production and loss of reputation for the organisation or the employer. In fact, the recognition of the right to protection against sexual harassment is an intrinsic component of the protection of women’s human rights. It is also a step towards providing women independence, equality of opportunity and the right to work with dignity.

For any sexual harassment law to be successful in India, it is important to be aware of the difficulties confronting our society and ways to overcome them. In India most cases of sexual harassment remains unreported. Women are reluctant to complain and prefer silence due to lack of sensitivity on the part of Indian society. There is a need to gender-sensitise our society so that the victim does not feel guilty and is encouraged to report any form of harassment. The victim’s privacy must be protected. The police and the judiciary, in particular, also need to be gender-sensitised. There should be speedy redressal and an increase in the conviction rate. Women themselves should be made aware of their right to a safe and harassment-free work environment. The concept and definition of sexual harassment should be clearly laid down, and the redressal mechanism made known to women in each and every sector of the economy.

 References

  1. The Constitutional Law of India-Dr. J.N. Pandey
  2. Law Relating to Sexual Harassment at Work- Alok Bhasin
  3. National Crime Records Bureau.
About Author:
Author Miss Dipannita Ganguly is a qualified company Secretary and pursuing a bachelors degree in Law in the Burdwan University.
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One thought on “EMPOWERMENT OF WOMEN: A SPECIAL STUDY ON SEXUAL HARASSMENT OF WOMEN AT WORK-PLACE AND LAWS RELATING TO SUCH OFFENCE

  1. This article throws light on sexual harassment at work place. We need to spread awareness in order to curb this social and legal disease. I expect this article to catalyze that.

    Like

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