Evaluating the Efficiency of Workplace Sexual Harassment: A Case Study of India and the UK
This Blog is written by Vibhuti Rao from Symbiosis Law School, Noida. Edited by Karan Dutt.
We have come a long way and the society has seen a massive shift in the employment cultures at workplaces. Conventional gender stereotypes are being overridden those limited men of the house to go outside the house and earn for the family. Women have increasingly come to the forefront and have been accepted as bread winners for their families. The problem of sexual harassment has existed since time immemorial in numerous ways and continues ways in several novel ways. It is a form of discriminatory conduct that belittles the worth and value of an individual and disturbs the sanctity and balance a workplace must have.
It still is an ordeal for some to believe and accept that sexual harassment is a prevalent ill in workplaces today but the reality stands that it exists and must be put an end to. It specifically refers to the acts and behaviour that stand a symbol of inappropriate sexual remarks, gestures or physical advances in the workplace. It could further include requests for sexual favours and unwelcome behaviour that an individual has not consented to and does not want to indulge in. The concept of ‘Consent’ is a recurring phenomenon and must be taken at every step of the way, an activity or conduct one act has not consented to and takes place against their will is objectionable and amounts to an offence and misdemeanor.
There is no social or geographical limitation to the fatal practice of sexual harassment, it is carried out in different countries and territories in different ways. Workplaces of all levels and seniority witness this ghastly conduct. Such an offence is beyond the boundaries of caste, creed, race or nationality, it has only and only one foundation, that is, ill intentions of the human mind. A case study involving the presence of sexual harassment in India and the UK has been included in this paper in order to give credible and holistic insights on the subject using contemporary case laws.
SIGNIFICANCE OF THIS DEVELOPMENT
Sexual harassment at workplace has become an undeniable and illegitimate part of the working culture. It has become so prevalent in both the private and government sectors that in order to eliminate this peril, we ought to call a spade a spade and put an end to this vicious cycle. It is considered a violation of women’s right to quality, liberty and life. It leads to the creation of an insecure and hostile environment at the workplace which is fatal and encourages the participation on women in work places. Furthermore, it goes on to negatively impact their economic and social empowerment and the goal of ‘inclusive growth.’ With more effective mechanisms and schemes of redressal of sexual harassment at workplaces, communication, conversation and awareness will begin which is the first essential stop to prevention of the same.
In a working culture and system that is primarily biased and does not have a gender-neutral and balanced foundation, it becomes even more imperative to have operative preventive laws against sexual harassment at workplace. This is not only a collective and systemised method of acceptance of inequality and presence of conducts of sexual misdemeanour, but a systematic methodology of bringing a visible and effective change and revolution of how women are perceived at work.
There has always been an absence of a ‘safe space’ for sufferers to express them freely against sexual harassment. Prevention laws against sexual harassment at workplace have helped to evolve a mentality and raise awareness that this internalised sexual misconduct stems from our internal gender stereotyped beliefs and notions and hence must cease to exist.
With the coming up of such streamlined and organised legislations and guidelines that clearly lay down the state of affairs and consequences, an environment that recognises such conduct has begun to form. There is growing awareness and consciousness about one’s sexual misconduct that is outright questionable. The mentality that sexual harassment is ‘trivial’ and can be easily brushed under the carpet and must not be spoken about until it is ‘too much’ is seeming to vanish in a more informed workplace where such practices are looked down upon.
Numerous changes both small and huge have taken place in mentality and institutions at large but there is still a long way to go and perpetrators to hold accountable. Acceptability of sexual harassment in any form must be frowned upon and not as a practice that has to be dealt with due to one’s gender or to maintain job security.
PROVISIONS IN THE LEGISLATURE
In the 1990s, the background of the Vishaka case took shape in which Bhanwari Lal Devi, a Rajasthan state government employee, tried to put an end to child marriages as a part of her job. On being angry at this behaviour, the landlords raped her on multiple occasions. On the failure of Rajasthan High Court’s judgments to impart adequate justice, a mass movement started which led to a PIL being filed in the Supreme Court.
The Indian Apex Court in 1997 introduced the ‘Vishaka Guidelines’ which expressly state that gender equality included protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. Due to quite the failure of these, the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) came into practice and completely expanded the meaning of the workplace and covered the informal sector in its ambit, including domestic workers. Workplace sexual harassment is a form of gender discrimination which snatches the rights of women to work, equality to life given in the Indian Constitution under Articles 14,15 and 21.
The Act made it compulsory for every employer to form a committee which would handle the complaints of an aggrieved woman. The members of the ‘Internal Complaints Committee: ICC’ should consist of: i) a Presiding Officer, ii) not less than two members from amongst the employees preferably committed to the cause of women or who have had experience in social work or have legal knowledge and iii) one member from amongst non-governmental organizations or associations committed to the cause of women employees.
The landmark Vishaka judgment was an eye opener for the people but in 1999 a case “Apparel Export Promotion Council v. A.K Chopra” increased the ambit of sexual harassment mentioning that physical contact is not just essential for it, maximising the possibility of contact that takes place.
Relevant laws under the Indian Penal Code (IPC):
IPC Section 294 –
It includes obscene acts in any public place, singing obscene songs to the annoyance of others Punishment will be imprisonment for a term of up to 3 months or fine, or both.
IPC Section 354(A) –
Demanding sexual favours, showing pornography, physical contact despite indication of disinterest is a crime and accused can be subjected to either jail, ranging from 1 – 3 years or fine or both.
IPC Section 354 (B) –
It deals with forcing a woman to undress and punishment of jail ranges from 3 – 7 years in prison and a fine.
IPC Section 354 (C) –
Watching, capturing or sharing images of a women engaging in a private act without her consent is voyeurism and punishable under this section. The man can face jail ranging from 1- 3 years. But if that man is convicted for the second time, then he will face jail between 3 – 7 years along with fine.
IPC Section 354 (D) –
Following someone with or without their knowledge is known as stalking and considered as an act of sexual harassment. The punishment will be jail term ranging from 3 – 5 years coupled with fine.
IPC Section 375 –
It includes Acts like penetration of penis in to the vagina, urethra, anus or mouth, or any object into any body part, to apply mouth or touching private parts. Penetration means ‘penetration to any extent’. The punishment will be imprisonment which will not be less than 7 years and it can also be extended to life time. In aggravated situations, punishment may be rigorous, not less than a jail of 10 years, and maybe imprisonment for life.
IPC Section 376A –
If a person committing the offence of sexual assault inflicts an injury which causes the death of the person or persistent vegetative state, then he shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, and it shall be extended to life imprisonment. In Gang rapes, persons involved will be punished with rigorous imprisonment of 20 years and not less than that. They shall also have to pay compensation to the victim. The age of consent is 18 years which means any rape below 18 years will be a statutory rape.
IPC Section 67 of IT Act –
Posting any obscene or defamatory material on a public online platform with an intention to harm the reputation or harass that woman is punishable with jail time of 2 years with a fine.
IPC Section 499 –
Morphing Pictures of lady and sharing them with an intention to harass and defame them is punishable by implying jail up to 2 years or fine or both.
IPC Section 503 –
If a woman refuses to someone’s sexual favours and is met by threats for physical or reputational harm, shall be punished with imprisonment for 2 years or fine, or both.
IPC Section 13 509 –
Insulting the modesty of a woman by making sexually coloured remarks about her in a public space which intrudes her privacy is punishable by jail of 3 years and fine.
In the United Kingdom, which is primarily considered to be more educated and sophisticated the condition with respect to sexual harassment at workplaces is not too different or evolved. There has been a massive and rapid increase in the familiarity with the existence and prevalence of sexual harassment. The Discrimination Act of 1975 had been changed to set sexual harassment as a form of discrimination in 1986. It explained that in a case where there is conduct which has not been consented to on the ground of person’s sex or unwanted behaviour of a sexual nature, it violates the person’s honour and dignity and leads to the creation of a hostile, degrading and humiliating environment for them. This legal definition is further elaborated upon in the Equality Act 2010.
The UK regards and defines sexual harassment in a broader manner now which includes behaviour that leads one to feel intimidated or offended, related to their sex. It is both a criminal and civil offence and actions can be taken against it accordingly. The claim for the same needs to be made within 6 years of the harassment for it to hold in court. An injunction can be made to stop a person from harassing another and if not contained even then, criminal proceeding may be initiated against them.
In addition to these legislations, there is a specific provision in the Equality Act. Section 26 of the same that lays down prohibition on the following types of harassment:
1. Sex-related harassment
2. Harassment of a sexual nature
3. Less favourable treatment based on a person’s rejection or submission to sex-related harassment.
Furthermore, an individual in the UK has the power to bring an Employment Tribunal Complaint of harassment against the employer and against the individual employee who violated their dignity and harassed them. Due compensation after the evaluation of all facts and legislation has to be provided and is not capped and varies from case to case.
There are several essential Indian Judgments that have shaped the Prevention laws against sexual harassment at workplace. The most important one being Vishaka & Ors v. State of Rajasthan & Ors. which laid down the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and gave guidelines to ensure the same.
In the case of U.S Verma v. National Commission of Women & Ors, it was established that it shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
In the United Kingdom, in the employment tribunal case of Craddock v. Fontoura t/a Countyclean in 2010, the manager said multiple times to a male employee that he must form a relation with a new female employee and promising to send them away together under the pretext of getting to know each other. Mr. Craddock became very uncomfortable around the female colleague due to these remarks by his boss. This accounts as sexual harassment as Mr. Craddock did not give his consent to be romantically framed in such a fashion but in turn it led to his embarrassment and intimidation.
The excuse of banter or making a friendly joke is not a defence in a sexual harassment case as established in the case of Driskel v. Peninsula Business Services. A female employee’s complaint amounted to sexual harassment in spite of the head regarding it as an acceptable form of ‘banter.’ Inappropriate remarks and comments on one’s style of clothing in claim of a promotion to sway employees is outright unacceptable and harassment.
In my sincere opinion, the offence of sexual harassment is one that has evolved through time and taken the form of numerous forms. However, that does not change the fact irrespective of gender, which sector of workplace, hierarchy or country, it is a gross happening which is unacceptable in order to maintain the highest of degree of professionalism that must be practiced. A place of work is sacred and a free space to learn, grow and perform. It should have merit and high skilled performance as its basis for recognitions and promotion. Gender is simply beyond a person’s choice and one must not be in a position to be rewarded or discarded due to the same.
The concept of consent has gained momentum in the past few years but there is still a long way to go. The mentality to seek or give sexual favours is based on one’s mentality and what they deem acceptable in a workplace. It also stems from what one has observed their elders doing and that subconsciously seems the right thing to do. In addition, the grave act of misconduct largely has a bottom down effect, that is, it is carried out by higher authorities on workers or employees below them. This makes me ponder that sexual harassment is typically an aggravated form of abuse of power in the obscenest sense possible. It is an outright violation of modesty and dignity of a worker and an individual. All persons at a workplace whether in India or the UK deserve to work peacefully in an environment free from sexual misconduct or any act they did not consent to. A simple no means no and the greater number of people understand that, the safer and more effective a workplace will be!
On analysing the legislations and cases of sexual harassment in India and the UK, it can be clearly concluded that nationality or sector or level of education or sophistication is no sense of barrier for treating workers properly. This misconduct arises solely from the mentality of such sexual misdemeanours and can exist anywhere. However, in India Prevention laws are directed to protect women proactively due to the age long contentions that they are not supposed to work and can be taken advantage of. In the UK equivalent wrong is observed against the male fraternity, gender is not so much a barrier as it is in India where there is excessive prevalence and influence of gender stereotypes and norms. The question is not about which country has better or more effective prevention laws as there is very different level of awareness in both. Furthermore, the effectiveness of laws also depends on how it is taken and accepted by the people and hence practiced. Both the countries have their unique issues to deal with and enhance laws accordingly to prevent sexual harassment.
It is quite an ordeal to link the right balance between ‘inalienable right to work’ and ‘right to work with dignity’ which makes sexual harassment as a recognisable offense. It is not one specific act that is objectionable but several disperse acts that build a questionable conduct which are often not possible to define or confine. The power of harassment lies in its diffused nature and the fact that it is not always overt but also subtle or hidden which widens its implications. However, due to the presence of this grey area of interpreters, perpetrators must not be let free on account of benefit of doubt. There is an extremely thin line between ‘normal’, ‘natural’ and ‘acceptable’ and how offenders of sexual harassment are punished is determined by the violation and intertwined nature of these.
Laws provide road maps and beacons right direction to move on. The high magnitude in which sexual harassment is prevalent today requires reorientation of laws which should be simple and effective. Delay in justice is not acceptable and this must change along with the mentality that makes harassment acceptable! Whether it is India or UK, no law can prevent any form of harassment so far there is intent in the human mind to perform such gross misconduct thus reform in mentality and level of awareness is the first step to prevention of sexual harassment prevention.