AbstractSexual 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 his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.The purpose of the paper is to provide a holistic and comprehensive picture in regard to the sexual harassment at workplace.[PowertoWomen.in] [Post] The paper attempts to discuss all kinds of conduct that can come within the purview of the word "sexual harassment". The paper also brings to light the various tests which can be applied to determine as to whether certain conduct at the workplace can be treated as sexual harassment or not. The paper also focuses on the international instruments and conventions which came into existence to prohibit this evil of sexual harassment in the society. The paper stresses on the preventive and procedural actions that need to be taken by the employers to combat sexual harassment at the workplace. The paper shall also provide for the liabilities and the remedies that are available to the victims of sexual harassment. The paper shall conclude by suggesting the various resorts that are open to the victims to get their grievances redressed.need of providing the women with the opportunity to plan and make choices for themselves and further, to transform those choices into desired outcomes. The paper will also focus on the various measures which are being taken, both at the national and international fronts, to improve the condition of women and empower them. The paper shall conclude by suggesting measures to sow the seeds of entrepreneurial culture so deep in the society of India that plants of success, prosperity and empowerment of women is bound to reap.INTRODUCTION:Sexual harassment is any sexually oriented conduct that may endanger the victim's job, negatively affect the victim's job performance or undermine the victim's personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses "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". Sexual harassment involves "the unwanted imposition of sexual requirements in the context of a relationship of unequal power".It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place' or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator's desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer's customers) may be actuated by sheer lust or sexual stereotyping.The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:"While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex."DEFINITION:In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No.19 (January 1992) of the Committee on the Elimination of Discrimination Against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajasthan . The definition is almost parimateria with the one proposed by the CEDAW, United Nations and reads:"Sexual harassment includes such unwelcome sexually-determined behavior (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 non-verbal conduct of sexual nature.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 women 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".THE LEGAL TEST FOR SEXUAL HARASSMENT:
- Unwelcome:To fit in the concept of ‘sexual harassment' the relevant conduct must be ‘unwelcome', that is unwelcome to the recipient of that conduct. In this context ‘unwelcome' means that the advance, request or conduct was not solicited or invited by the recipient, and the recipient regarded the conduct as undesirable or offensive. While definitions of ‘sexual harassment' abound in various international instruments, declarations and conventions, as also in court decisions, and are largely similar, "the one common element in all these definitions is the unwanted and unwelcome nature of sexual harassment'. The first feature of sexual harassment is the non-consensual practice at or connected with the workplace of the proscribed sexual behavior.
- Sexual in Nature: The second element of the definition requires the conduct to be ‘sexual' in nature. Courts, including Human Rights Tribunal, worldwide have recognized a broad scope of conduct that may fall under the definition of sexual harassment, depending on the circumstances. Such conduct may be physical, verbal or non-verbal. The ILO has identified the following "most common forms of sexual harassment" at the workplace:
- Physical harassment (kissing, patting, pinching or touching in a sexual manner);
- Verbal harassment (unwelcome comments about a person's sex orprivate life, jokes and insinuations, sexually explicit conversation, suggestive comments about a person's appearance or body);
- Gestural harassment (sending suggestive gestures, such as nods, winks, gestures with the hands, fingers, legs or arms);
- Written or graphic harassment(sending pornographic pictures through e-mail, putting up pin-ups or addressing unwanted love letters to an employee);
- Emotional harassment (behavior which isolates, is discriminatory towards, or excludes a person on the grounds of his or her sex).
- Persistence and/or Gravity of the Conduct: To constitute ‘sexual harassment' it is not enough that the impugned conduct be merely unwelcome sexual conduct. The word ‘harass' implies the installation of fear or the infliction of damage; is indicated by the definition of the term in the Macquarie Dictionary: "1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.2. to disturb persistently; torment, as with troubles, cares, etc." There must be either unwanted sexual behavior whose main effect is to subordinate the maintenance of conditions and benefits to submission to unwelcome sexual demands, or behavior that creates an "intimidating, hostile or humiliating working environment". In the context of ‘sexual harassment' there is unanimity of judicial opinion that the behavior complained of need not be repeated to constitute sexual harassment and in a given case even a single act may be sufficient. While it is important to consider the nature and intensity of the unwelcome act itself, its impact on the victim must also be considered.
- Express prohibition of sexual harassment as defined (in this decision) at the workplace should be notified, published and circulated in appropriate ways.
- The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
- As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
- 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 workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
- Make it clear what is considered inappropriate behavior at work. It should also explain that such behavior, in certain circumstances might be unlawful.
- Place a positive duty on managers and supervisors implement the policy and to take corrective action to ensure compliance with it.
- Place a positive duty on all employees to comply with the policy and to ensure that their colleagues are treated with respect and dignity.
- Explain the procedure that employees subjected to sexual harassment at work should follow so as to obtain assistance. It should also specify the persons to whom they should complain.
- Contain an undertaking that allegations of sexual harassment will be dealt with seriously, expeditiously and confidentially, and that employees will be protected against victimization or retaliation for bringing a complaint of sexual harassment.
- And last but not the least, specify that appropriate disciplinary measures would be taken against employees found guilty of sexual harassment.
Excerpt from Mr. Franklin JosephFranklin Joseph is a Social Entrepreneur and Speaker on Power to Women Self Defense Workshop on Safety Awareness and Psychological Empowerment / Preparation against Crime, Violence, Sexual Abuse and Sexual Harassment for school, college and corporate:
Inside or around a workplace sexual harassment cannot to dealt without the company policies changed to help the women in need. The change will not come unless the female employees puts the foot down and demand these policies to be enforced. This would happen either now or in few years from now. We at PowertoWomen.in help in building up the awareness against sexual harassment in general. Ask for our PowertoWomen.in workshops— Franklin JosephPhoto’s Design: Franklin Joseph
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