Sexual harassment in work placeSexual harassment

Sexual harassment at the place of work: an Indian context

Sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones

There is no restricted definition or specific limited of meaning the expression “sexual harassment”. Harassment of a lady by using a particular language or certain gestures or by stating a particular fact, without even specifically calling these actions as sexual harassment, yet the same can still be sexual harassment.

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For this purpose, sexual harassment 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 nonverbal conduct of sexual nature.

An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her. [Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625 (1999) 1 SCALE 57 : (1999) 1 SCC 759]

Where any of these acts is committed in circumstances whereunder 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.

Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, 1999 SCC (L and S) 405 wherein it has been held as under:-

“26. There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty – the two most precious fundamental rights guaranteed by the Constitution of India. As early as in 1993, at the ILO Seminar held at Manila, it was recognised that sexual harassment of women at the workplace was a form of “gender discrimination against women”. In our opinion, the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of 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, admits of no debate. The message of international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (“CEDAW”) and the Beijing Declaration which directs all State parties to take appropriate measures to prevent discrimination of all forms against women besides taking steps to protect the honour and dignity of women is loud and clear. The International Covenant on Economic, Social and Cultural Rights contains several provisions particularly important for women. Article 7 recognises her right to fair conditions of work and reflects that women shall not be subjected to sexual harassment at the place of work which may vitiate the working environment. These international instruments cast an obligation on the Indian State to gender-sensitise its laws and the courts are under an obligation to see that the message of the international instruments is not allowed to be drowned. This Court has in numerous cases emphasised that while discussing constitutional requirements, court and counsel must never forget the core principle embodied in the international conventions and instruments and as far as possible, give effect to the principles contained in those international instruments. The courts are under an obligation to give due regard to international conventions and norms for construing domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. (See with advantage – Prem Shankar Shukla v. Delhi Admn. [(1980) 3 SCC 526] ; Mackinnon Mackenzie and Co. Ltd. v. Audrey D’ Costa [(1987) 2 SCC 469] ; Sheela Barse v. Secy., Children’s Aid Society [(1987) 3 SCC 50, 54] SCC at p. 54; Vishaka v. State of Rajasthan [(1997) 6 SCC 241] ; People’s Union for Civil Liberties v. Union of India [(1997) 3 SCC 433] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416, 438] SCC at p. 438.).

In Vishaka and others Vs. State of Rajasthan and Others, , this Court issued certain directions as to how to deal with the problem. All the States were parties to that proceedings. Now, it appears that the directions issued in Vishaka case were not properly implemented by the various States/Departments/Institutions. In a rejoinder affidavit filed on behalf of the Petitioners, the details have been furnished. The counsel appearing for the States submit that they would do the needful at the earliest. It is not known whether the Committees as suggested in Vishaka case have been constituted in all the Departments/Institutions having members of the staff 50 and above and in most of the District level offices in all the States members of the staff working in some offices would be more than 50. It is not known whether the Committees as envisaged in the Vishaka case have been constituted in all these offices. The number of complaints received and the steps taken in these complaints are also not available. We find it necessary to give some more directions in this regard. We find that in order to co-ordinate the steps taken in this regard, there should be a State level officer, i.e., either the Secretary of the Woman and Child Welfare Department or any other suitable officer who is in charge and concerned with the welfare of women and children in each State. The Chief Secretaries of each State shall see that an officer is appointed as a nodal agent to collect the details and to give suitable directions whenever necessary.

As regards factories, shops and commercial establishments are concerned, the directions are not fully complied with. The Labour Commissioner of each State shall take steps in that direction. They shall work as nodal agency as regards shops, factories, shops and commercial establishments are concerned. They shall also collect the details regarding the complaints and also see that the required Committee is established in such institutions.

In Seema Lepcha Vs. State of Sikkim and Others, Petition for Special Leave to Appeal (Civil) No. 34153/2010 decided on 3.2.2012 Apex Court gave the following directions:

(i) The State Government shall give comprehensive publicity to the notifications and orders issued by it in compliance of the guidelines framed by this Court in Vishaka’s case and the directions given in Medha Kotwal’s case by getting the same published in the newspapers having maximum circulation in the State after every two months.

(ii) Wide publicity be given every month on Doordarshan Station, Sikkim about various steps taken by the State Government for implementation of the guidelines framed in Vishaka’s case and the directions given in Medha Kotwal’s case.

(iii) Social Welfare Department and the Legal Service Authority of the State of Sikkim shall also give wide publicity to the notifications and orders issued by the State Government not only for the Government departments of the State and its agencies/instrumentalities but also for the private companies.

As a largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency, indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence – domestic violence, sexual assault, sexual harassment at the workplace, etc; — and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population – the women.

After Visakha Guidelines supreme court issued further directions in MEDHA KOTWAL LELE AND OTHERS Vs. UNION OF INDIA (UOI) AND OTHERS [(2013) AIR(SC) 93 ]

(i) The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules (By whatever name these Rules are called) shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings etc. of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to a disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent.

(ii) The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in Clause (i) within two months.

(iii) The States and Union Territories shall form adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and state level. Those States and/or Union Territories which have formed only one Committee for the entire State shall now form adequate number of Complaints Committees within two months from today. Each of such Complaints Committees shall be headed by a woman and as far as possible in such Committees an independent member shall be associated.

(iv) The State functionaries and private and public sector undertakings/organisations/bodies/institutions etc. shall put in place sufficient mechanism to ensure full implementation of the Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant – victim is not forced to work with/under such harasser and where appropriate and possible the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action.

(v) The Bar Council of India shall ensure that all bar associations in the country and persons registered with the State Bar Councils follow the Vishaka guidelines. Similarly, Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory Institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with the Vishaka guidelines and the guidelines in the present order.

Human Rights Concern

Having regard to the definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act, 1993.

Taking note of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time.

It is necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

Duty of the Employer or other responsible persons in workplaces and other institutions:

It shall be the duty of the employer or other responsible persons in workplaces 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.

Criminal Proceedings:

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

In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

Disciplinary Action:

Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such a complaint mechanism should ensure time-bound treatment of complaints.

Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counselor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other bodies who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the Government department concerned of the complaints and action taken by them.

The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

Certain other relevant provisions may also be noticed at this stage. Rule 3-C of the CCS (Conduct) Rules, 1964 was inserted in 1998 and reads thus:

3-C Prohibition of sexual harassment of working women

(1) No Government servant shall indulge in any act of sexual harassment of any woman at her workplace.

(2) Every Government servant who is in-charge of a workplace shall take steps to prevent sexual harassment to any woman at such workplace.

Explanation – For the purpose of this rule, “sexual harassment” includes such unwelcome sexually determined behavior, whether directly or otherwise, as –

(a) Physical contact or advances;

(b) Demand or request for sexual favours;

(c) Sexually coloured remarks;

(d) Showing any pornography; or

(e) Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.

Experience in United States

In the United States of America, the Code of Federal Regulations distinctly recognizes three kinds of acts of sexual harassment.

29 C.F.R. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of Section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Further, the Equal Employment Opportunity Commission in the U.S.A is to look into the facts of each case as a whole and in proper context to determine whether the act/s complained of amount to sexual harassment.

29 C.F.R. 1604.11 Sexual harassment.

(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

In Janzen v. Platy Enterpirses Ltd. [1989] 1 S.C.R. 1252, two waitresses at a restaurant had complained of sexual harassment and the Human Rights Commission as well as the Court of Queen’s Bench in Manitoba, Canada had ruled in favour of the complainants. The Court of Appeal held that there was no discrimination on the basis of sex and that the employer could not be liable for the sexual harassment by its employee. The Supreme Court of Canada reversed the Court of Appeal. It noted that Section 19 of the Human Rights Code expressly prohibited sexual discrimination in the workplace. Section 19 of the Human Rights Code in Canada reads:

19 (1) No person who is responsible for an activity or undertaking to which this Code applies shall

(a) harass any person who is participating in the activity or undertaking; or

(b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.

19 (2) In this section “harassment” means

(a) a course of abusive or unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in Sub-section 9(2); or

(b) a series of objectionable and unwelcome sexual solicitations or advances; or

(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.

Discussing discrimination in the context of sexual harassment, the Supreme Court of Canada observed in Janzen:

In keeping with this general definition of employment discrimination, discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

After undertaking a detailed discussion of the concept of sexual harassment, the Court observed as under:

Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

Dickson, C.J. defined ‘sexual harassment’ in the following terms:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

(emphasis supplied)

In Ellison v. Brady U.S. Court of Appeals, Ninth Circuit 924 F. 2d 872 (1991), the Court of Appeals formulated the ‘reasonable woman’ standard and observed:

We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.

We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a great figure' ornice legs.’ The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”. The characteristically male view depicts sexual harassment as comparatively harmless amusement.

We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser’s conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.

Case Reference :

  1. Vishaka and others Vs. State of Rajasthan and Others, AIR 1997 SC 3011 : (1997) 3 Crimes 188
  2. Seema Lepcha Vs. State of Sikkim and Others, (2012) 2 SCALE 635
  3. Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625 (1999) 1 SCALE 57 : (1999) 1 SCC 759
  4. D.S. Grewal Vs. Vimmi Joshi and Others, (2009) 120 FLR 773 : (2009) 1 JT 400 : (2009) 1 SCALE 54 : (2009) 2 SCC 210 : (2009) 1 SCC(L&S) 377 : (2009) 2 SLJ 351
  5. U.S. Verma, Principal and Delhi Public School Society Vs. National Commission for Women and Others, (2009) 163 DLT 557
  6. The Supreme Court, in D.S. Grewal Vs. Vimmi Joshi and Others, also noted the phenomenon of retaliatory allegations and inadequacy in following the Vishaka Guidelines while enquiring into a complaint of sexual harassment. A school teacher complained of sexual harassment against the Vice Chairman of the school management. Her services were terminated while she was still on probation. “In the meanwhile a purported enquiry was conducted” where “it was found to be not a case of sexual harassment.” However, the Vice Chairman was directed to be counseled. Retaliatory allegations of financial irregularities were made against the teacher by the school management. The teacher filed a writ petition questioning the legality of her termination and alleging sexual harassment. A Division Bench of the Uttarakhand High Court directed disciplinary action against the alleged harasser without getting the matter enquired. The Supreme Court relying on its decisions in Vishaka and AEPC, partially modified the order directing institution of a three member sexual harassment enquiry committee and imposed costs of Rs. 50,000/- on the alleged harasser.
  7. Additional District and Sessions Judge ‘X’ vs Registrar General High Court of Madhya Pradesh

Connected Rules :

  1. HandBook on ‘The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
  2. Gender Sensitization and Sexual Harassment of Women at Supreme Court (Prevention, Prohibition and Redressal) Guidelines, 2015
  3. Report dt. 8/9/2014 reg. – Gender Sensitization Internal Complaints Committee (GSICC)
  4. Circular14022014 reg. on 9.12.2013 the first meeting of Supreme Court Gender Sensitization and internal Complaints Committee (GSICC) headed by Hori’ble Mrs. Justice Ranjana Prakash Desai was held in the Supreme Court’s premises to workout the modalities for the effective implementation of the “The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013” and to take decision on related issues.
    Gazette_No38 – New Delhi, the 6th August 2013, No. F.26/2007-SCA~In exercise ofthe powers conferred by sub-clause (2) of Clause 1 of “The Gender Sensitisation & Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013”, the Chief Justice of India hereby appoints, the date of publication of the Regulations in the Official Gazette, as the date on which provisions of the said Regulations shall come in to force. By Order. RAJ PAL ARORA, Registrar.
  5. The Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal), Regulations, 2013

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