SEXUAL HARRASSMENT AT WORKPLACE

SHW: How long will sexualized work places continue?

SHW

India’s GDP would skyrocket by approximately 27%, finds the Booz and Company report, if an equal number of Indian women joined the workforce. India could harness the potential of its women population, sidelined so far due to cultural and social reasons. Working women can add Rs. 4.95 lakh crore ($ 110 Billion) to GDP in a decade if employed (NSSO-’05 indicates 31% of women are working in India) and a rise in income levels above baseline upto 5% by 2016 and 12% by 2025. The female labour force participation and its contribution to economic development has been addressed in many studies (Esteve-Volart, 2004; Klasen & Lamanna, 2009) hence, drawing women into the labour force can be an important source of future growth of the Indian economy. The recent data on employment and unemployment (NSSO, 2009-10) shows a disturbing trend of labour force participation rate which dropped to 40 percent in 2009-10 from 43 percent in 2000-05 and the decline is noticed especially among female. Female labour force participation rate shows a steep fall from 29.4 percent in 2004/05 to 23 percent in 2009/10. Between the period 2004/05 and 2009/10, there has been a decline in female employment annually at the rate of 1.72 percent (Chandrasekhar, C & Ghosh, J, 2011). These results raised many questions.One of the serious concerns is ‘are the women workers given enough protection against sexual harassment’. Social Reasons from the working women perspective are well-known. If Women Workers are considered as growth vehicles for sustainable growth sexual harassment needs to be addressed as a key factor. Effective legal measures are known to supplement and complement other measures in every field. Sexual harassment has been a matter of discussion since the late 1970s. At the international level, it has been addressed as both an aspect of gender discrimination and as a form of violence against women.In India, until 1997, women experiencing sexual harassment had to lodge a complaint under Section 354 & 509 of the Indian Penal Code. In 1997 the Supreme Court passed a landmark judgment in the Vishakha case laying down guidelines to be followed by establishments while dealing with complaints about sexual harassment. Although post Vishakha, there have been some cases that came to the front, latest development with a Senior Counsel, a Senior Journalist and Supreme Court Judge prompts a revisit to the provisions related to prevention of sexual harassment at workplace. Has anything changed since 1997? In 2013, almost 16 years after the Vishakha Judgment, India has formally enacted its law on prevention of sexual harassment against female employees at the workplace. The provisions are not yet notified. While the “workplace” in the Vishaka guidelines is restricted to the traditional office set-up protecting only the employees, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“Act”) goes further to include organisations, department, office, branch, unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. The Act requires,

  • Every      organisation employing 10 or more employees must set up an ‘Internal      Complaints Committee’ (ICC), to investigate complaints of sexual      harassment at every office/branch.
  • In      organisations where there are less than 10 employees, the Government is      required to set up a ‘Local Complaints Committee’ (LCC), to investigate      complaints of sexual harassment.
  • All      complaints must be disposed off within a time frame of 90 days.
  • Employers      who fail to comply will be fined up to Rs. 50,000. Repeated non-compliance      by an organisation can lead to suspension or cancellation of their license      to conduct business.
  • At the behest      of the aggrieved employee the ICC and LCC can recommend certain interim      measures to the organisation/company. These include transfer of the      aggrieved employee to another branch/office, or granting leave of up to      three months in addition to the statutory leave policy.
  • The      Committee shall send the report of its findings to the employer or      district officer within 10 days of completion of inquiry. The report shall      be made available to the concerned parties.
  • The Act      also has made provisions to deal with frivolous and vexatious complaints.

Further, the Employer is bound to provide safe working environment to its women workers; treat sexual harassment as misconduct under service rules; organize awareness programmes for employees and orientation programmes for ICC members; display penal consequences of sexual harassment; provide facilities and assist ICC or LCC for conducting inquiry; secure attendance of respondent and witnesses; assist aggrieved woman to file complaint, if she decides; monitor timely submission of reports by ICC.

The Convention on the Elimination of All Forms of Discrimination against Women, adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. There has been an emerging trend towards enacting specific laws against sexual harassment on both civil and criminal law approaches. Sexual harassment in the workplace was first addressed through law in the mid-1970s at the conclusion of a campaign in the United States to have it recognized as a form of sex discrimination under the federal Civil Rights Act. Almost 50 countries directly prohibit it in legislation. In USA the provisions prohibiting sexual harassment are included in the Title VII of the Civil Rights Act, 1964. Trend is towards awarding extremely heavy damages in sexual harassment cases. In Weeks v Baker & McKenzie, Jury awarded USD 7.1 Million punitive damages against the law firm. Damages depend on the size of enterprise involved. Canada gives the sexual harassment victims options of human rights claim & a civil action. Arbitrations are being effectively used to determine the compensation. In Re: Hughes v City of Etobicoke, the court awarded, Canadian Dollars 180,000 for wrongful dismissal. In Europe France, Ireland, Spain and UK have taken effective measures to combat sexual harassment. France added a new Penal provision in 1992 in respect of sexual harassment crimes. Strict examination of facts is prescribed to deal with complaints related to sexual harassment. The trends show award of damages and punitive damages in extreme cases. Irish Employment Equality Act, 1977 of Ireland ensures to eliminate workplace discrimination and harassment and prescribes progressive labor courts. However in Spain the trend shows that the Appeals Court have been lessening the compensation granted where the Labor courts have been favoring victims. Bracebridge Engineering Limited v Darby (1990) is a breakthrough case at Employment Appeals Tribunal, UK, under the Sex Discrimination Act, 1975 & Employment Protection (Consolidation) Act, 1978. UK follows USA and insists that the impact on victim is important. In Knox case aggravated damages were awarded when 16 year girl was forced to recount the behavior in cross examination. Australia following US & UK practices enacted the Sex Discrimination Act, 1984, Industrial Relations Act, 1988 & Anti Discrimination Act, 1992. Anti- Discrimination Commissioners have been appointed to deal with the complaints. ILO quotes that New Zealand Employment Contracts Act, 1991 as “ Amongst the most extensive of any legislation reviewed” provisions setting out “all relevant matters including the definition, legal protection afforded, employer liabilities, remedies and personal grievance. Further the courts maintain privacy of victims.

The US decisions have strong influence in other jurisdictions. Proving sexual harassment in most cases is complex, subtle and highly subjective. The use of criminal law is problematic as a strict burden of proof is required to fix the liability and the accused is considered as “innocent till proved guilty”. Further litigation is time consuming and the employer’s liability is vicarious. The employer needs to be aware of the legal provisions and risks associated with the non compliance thereof. Global trends are an eye-opener for Indian Corporate Sector to put its act in place. Whether explicit legal measures are available or not, private enterprise can proactively set the agenda. Private enterprise can:

– Set up policies to forbid any form of SHW as unacceptable behavior;

– Enforce the policies effectively so that Courts intervention is minimal;

– Advise and mediate the issues;

– Provide for independent reputed mediators / ombudsmen so that the redressal is effective.

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