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A Comparative Analysis : Sexual Harassment At Workplace

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Gone are the days when only men used to run the houses solely. In today’s world, where globalisation has changed the definition of the method of work, it has surely reconsidered the role of women in all sectors of life. The position and status of women has immensely changed since ages. Women across the world have tasted all flavours of challenges. But if on one side of the coin we see the high rise of women the other side shows the struggle and wrong act suffered by them. This struggle could easily be identified with a word ‘Consent. With this simple word she precisely gives her answer to the person. And to understand the meaning of it is not that difficult, we believe. But with the larger influx of women in the mainstream workforce of India, sexual harassment at workplace has assumed greater dimensions. Women has to face a lot of violence, neglect, physical abuse, verbal abuse which looks heinous and shameful.

Workplace sexual harassment is a form of gender discrimination which snatches the rights of women to work, equality to life coded under the Constitution of India under Articles 14, 15 & 21. Sexual harassment in the workplace not only is an unacceptable behaviour, it is also detrimental for the economy. It also reduces the opportunity for the women. Moreover, such situations create an insecure and an apprehensive environment for them. Apart from interfering their performance at workplace, they got affected socially, personally and suffer the most emotionally. In the society, there are a kind of people who think that by harassing a woman, makes them feel ‘Macho’. In the offices or any kind of workplace, people ask for sexual favours in exchange of the benefits they can dispense; secondly, few persons are there who could be known as opportunist- who tries to be an attention seeker in the eyes of the women staff and thirdly, the game of power – where a senior or a superior officer would force her junior officer or colleague to do as he say.

No matter how advance the situations are in today’s life, these topics are still a taboo to discuss on.  Although India has been tackling such problems and is been under the view of the courts and the government recognizing it as a grave violation of women’s rights ever since the Vishakha case in 1997 was viewed. It became a landmark judgement issuing directions to the Union of India to enact an appropriate law for combating workplace sexual harassment. Although, it took 16 long years to frame an Act called POSH Act, 2013. The POSH Act defines ‘sexual harassment’ in line with the Supreme Court’s definition of ‘sexual harassment’ in the Vishaka Judgment.

The judgment of Vishaka opened the eyes of the people with a view to demand an Act for the issue but in year 1999 a case Apparel Export Promotion Council v. A.K Chopra enlarged the definition of Sexual Harassment by stating that physical contact is not just essential to act for sexual harassment. It widened the definition covering the maximum possibility of contact. The work place harassment to the employees even resulted in suicides by the employees and the immediate stimulus for the study of this aspect is the judgment of the High court of Uttarakhand in Praveen Pradhan v. State of Uttaranchal, 2012 and others dealing with the case of suicide of an engineer allegedly committed due to harassment by his superior and colleagues, in which Servesh Kumar Gupta, J., observed that “under the pretext of administrative control and discipline, a superior officer cannot be left to enjoy an extreme liberty to make the intense humiliation and scolding inhumanly….He may be free to take any administrative disciplinary action ,as per the rules ,but cannot be permitted to enjoy the liberty, full of ego, to humiliate a subordinate in a horrified manner ”. By viewing the judgements of different State Courts, we realise the situations of the working women and problem faced by them.

Another case related to employer misusing their power on the employee is of G. Pushkala v. High Court Of Judicature, 2007 where the essence of the protest made against the delinquent officer is that by utilizing his official position, he requested sexual favors from the complainant by passing slips and disturbing her at midnights by making phone calls to her habitation and in this manner shocked her humility and brought about mental torment and misery to her. One case naming D.S. Grewal v. Vimmi Joshi, reflected the importance of the committee prepared on the directions of the Supreme Court. The Court held that there should be a proper mechanism like complaint committee, where a woman can file her complain. This committee will work where there are more than 10 employees. The committee will constitute a women presiding officer at senior level, not less than 2 members from amongst employees (preferably having a legal knowledge) and an external member from an NGO or any association committed to cause of women. A penalty of Rs 50,000 in case a provision is not followed. Later in this case, Vimmi Joshi paid the penalty.

However, the Act, in no way inclined towards one gender. The Indian courts have time and again maintained the balance. The Courts in India have also started taking stern actions on false complaints filed under the POSH Act, which is a welcome move and will pave the way for the balanced approach to be taken towards the incidents of sexual harassment at the workplace. Recently, the Delhi High Court in the matter of Anita Suresh vs Union of India & Others, dismissed the petition for its ‘lack of merit’ and ordered the costs of Rs. 50,000/- on the petitioner for filing a false complaint and misusing the provisions of the POSH Act. The single judge bench comprising of Justice J.R Midha also granted liberty to the respondent-ESI Corporation to initiate appropriate action against the petitioner for the same. Anita Suresh’s judgement has the potential to what can possibly be a watershed moment in rethinking the provisions of the POSH Act from a different perspective. This decision also gives us a revelation as to how provisions of the POSH Act can also be misused for settling personal vendetta. The Court has rightly come to the aid of the Respondent who otherwise would have fallen victim to shaming and the surrounding social stigma that could have been fatal to both his personal and professional life. 

Need of the hour is that though we should be sensitive towards the cause but at the same time should not get blinded by pre-conceived notions like ‘men are always wrong; women can never lie.’ The wronged woman must get justice but at the same time a man should not be wronged as well. The principles of socialism and social justice should not be pushed to extremities so as to become a weapon in the hands of few to be misused for ulterior motives. The right balance must be struck. The workplace environment should be such that the harassment matters do not go unreported and at the same time men should not be made to undergo torture and humiliation on account of false complaint.

Let’s not crush the principle of “innocent until proven guilty” in our quest for “Justice”.

Sexual Harassment at workplace is been faced not just in India but by all the women over the world. It has nothing to do with been a developed nation or a developing one. The Status is just the same everywhere. And as every country has its own story they have their own laws to deal with such situation. United States though a leader in many fields, has never been a leader in women’s right. The legal Status and treatment of women raise difficult issues. The 1948 Universal Declaration of Human Rights included women when it guaranteed rights to “everyone. Sex is specifically mentioned in Article 2:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

In USA, Equal Employment Opportunity Commission (EEOC) is a federal agency that administers and enforces civil rights laws against workplace discrimination. An employee who faces sexual harassment can file a complaint at the Equal Employment Opportunity Commission, if dissatisfied with the organisational enquiry of the case. The agency works both for women and men. Sexual Harassment was first recognized in cases where the women lost their jobs because they rejected their employer’s sexual overtures. This happened in case Barnes v. Costle, 1977. Soon such behaviour was recognised in employment law, and could create an odious condition. Later, the two types of basic forms of harassment was quid pro quo and hostile environment harassment, were summarized in guidelines issued by the Equal Employment Opportunity Commission in 1980. A survey conducted by United Nations Girls’ Education Initiative In the 2017,  National Youth Risk Behaviour survey reported nearly more than 9 per cent of high school girls who dated or went out with someone during the 12 months preceding the survey reported being physically hurt on purpose by someone they were dating or going out with during that period compared to nearly 7 per cent of high school boys; and almost 11 per cent reported having been forced to do sexual things they did not want to by someone they were dating or going out with compared to almost 3 per cent of high school boys. In 2018, 101,151 cases of rape were reported in the U.S. making it the country with the highest rape statistics that year.

UNITED KINGDOM

A Country famous for its British elegancy and sophisticated behaviour is no way far from the situation we see of women in other country. Rather over the period of time Sexual Harassment become too common here. The problem of the people of this country is that harassing a woman, in the street, has become very normal. Sexual Harassment is a topic, which in last few years has rapidly increased and with that increases the number of legislations.

The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986. It states that harassment occurs where there is unwanted conduct on the ground of a person’s sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If an employer treats someone less favourably because they have rejected, or submitted to, either form of harassment described above, this is also harassment. Another Act, the Protection from Harassment Act, 1997 explains as, an offence for a person to pursue a course of action which amounts to harassment of another individual, and that they know or ought to know amounts to harassment. This Act provides for jail sentence upto 6 months or a fine. Moreover, this Act was primarily created to provide protection against the Stalkers. The UK Government has a rag bag of Statutes like Administration of Justice Act 1970, Public Order Act 1986.  

A survey published by the EU Fundamental Rights Agency in 2014 found that sexual harassment was the most common form of violence against women across the EU, with 68 per cent of women respondents in the UK saying they had experienced sexual harassment since the age of 15 and 25 per cent having been sexually harassed in the past 12 months. 85% of women aged 18-24 years have experienced unwanted sexual attention in public places.

Recent data of 2019, shows that 40% managers who are men are uncomfortable participating in common workplace activities with women. This reflects the widespread reports of Sexual Harassment are increasing and men are also afraid of such things. We realise the common growing position in UK when polling was conducted of 1553 women and 52% of them experienced unwanted behaviour at work including groping, sexual advances and inappropriate jokes. 

According to a survey conducted by in 2019, 13 percent of women in the United Kingdom have been exposed to visual and verbal harassment at work such as to whistling, rude gestures or comments. In this year, another common type of sexual harassment at work in the United Kingdom was reported by women who were exposed to obscene proposals or messages with a sexual connotation at work.

After seeing the position of working women in the above countries, we realise that the status of women on one hand is growing but on the other hand it is getting worst. It is a high time for all of us to understand that to approach a working women should no longer be an excuse for the pleasure of her senior or colleague or anyone else. Atleast ‘Consent’ word matters a lot in the life of a woman. An unwanted touch and groping that too against her will are harassment and would always be carried by her throughout her life. If she ignores or shows her dissent towards a man, that should be respected.

For a healthy working environment in the offices we all need to contribute in giving a space of freedom and a sense of security and safety to all the women colleagues. All of this is somewhere connected by an individual and for that an initiate from each house should be made. Make your children and male members learn about the life a woman deserves when she steps out of her home. Of course, the society has a wide role to play along with the government and the authorities and media to sensitize women about their rights and remedies. Thus, a lot is yet to be done to make the society a safe place for working women.

Authored By: Mr. Rohit Sharma, Head-Corporate Legal Affairs, Member-Legal, Internal complaints committee, BSES Yamuna Power Limited, New Delhi and Mr. Katha MathurAssociate-Corporate Legal team.

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Supreme Court to hear advocates’ plea against Justice Karnan’s video on social media

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