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WOMEN AS VICTIMS OF WORKPLACE ABUSE – AN ANALYSIS
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WOMEN AS
VICTIMS OF WORKPLACE ABUSE – AN ANALYSIS
AUTHORED BY -
DR. D. KANNAN
& MIS.
RIDDHIMA KRISHNAN
Assistant
Professor of Law Tamil Nadu,
Dr Ambedkar Law
University Chennai – 113
Abstract
Sexual harassment at workplace is a serious issue
around the globe, irrespective of whether it
is a developed, developing or an under-developed nation. Where the women
workers are travelling in a crowded
local transport for the purpose of reaching the work place or to
sitting in a cubic room at workplace they face sexual assault either knowingly
or unknowingly in one or other way.
Though multiple legislations,
rules, regulations and policies have been enacted it served to be insufficient
to deal with such sexual exploitations due to situational cause. This research
paper focuses on exposing
the existence of such workplace
abuse for women for almost
a millennium, until now. It also throws
light on the kinds of workplace harassment faced by women, the
various legislations enacted in that regard and its level of effectiveness in curtailing this issue. In present scenario
the impact of the sexual assault is much prone that it’s no longer just harassment or sexual exploitations but
what it is called as today is “Sexual Terrorism”. This paper, thus highlights the probable preventive and prohibitive
measures to curtail such workplace sexual so called terrorism and thus protect
women workers’ rights.
Key Words:
Fundamental Rights, Workplace abuse, Sexual harassment, unpleasant behavior
I
– Introduction
In recent times the world talks much
about women empowerment and women being on equal footing with men. Even
in the Indian Constitution, Article 15 provides for power to make special laws
for women[1]
nothing has been changed socially, economically and politically, in which their
status has not been changed on par with their male counterparts and their security
and peaceful working
environment still remains
in doldrums. One needs to date
back to 1860 to understand the fact that women have been engaged in laborious tasks since then, contradictory
to the general misconception that women, from time immemorial have been working for their families
in farms, as house-help or as baby sitters in recent times women have set their foot at work alongside
their male counterparts. The Factories Act 1881, an outcome of labour
agitation and the first labour commission in India is probably the best
example to cite the same. The Act created disappointment and lost its charm
only because it had no provisions to regulate the working conditions of women and children[2] and thereupon another
Factories Commission was constituted in 1884 to rectify the
same. On an international perspective, the close of Industrial revolution phase II dating from 1860 till
1914, came in line with
the First World War which forced the
industrial workers to fight for their nation and it thus claimed the lives of
many men who were sole bread-winners of the family,
forcing their wives/women in the families
and their children to come out and work in factories. From then on women have been exposed
to various kinds of abuses at workplace
and have also been overlooked by legislations which
were meant to protect their rights. From 1860 to 2013 there was no statutory
remedy that directly addressed sexual harassment
at workplace except the Indian Penal Code, which punishes an act caused to outrage
the modesty of women[3].
Despite various barricades women have left no field untouched, starting from police,
army, politics, MNC’s,
to sports. The Indian Parliament woke up from its
slumber only in 2013 when the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act and rules thereof was enacted and it is followed by the Criminal law (Amendment) Act of 2013
wherein the term ‘Rape’ under IPC and
Cr.P.C., was broadened and it was laid down that ‘sexual harassment’ was not
just a compliance issue
but it widespread than ‘just
compliance’, non-adherence or inappropriate handling of which may lead to disrepute of an
organization[4]. Moreover,
many cases, prior and post such enactments have taken place,
yet there lingers some ambiguity or lacuna
in the law.
II – Workplace,
Workplace Sexual Abuse and its forms
Workplace
- is defined
as “any place visited by the employee,
arising out of or during
the course of employment, including transportation provided by the employer
for undertaking such a journey[5].
The definition extends cover to both organized and unorganized sector, whether having
place of work in India or abroad.
Moreover the phrase ‘arising
out of and in the course of employment’[6] is
used in the Workmen’s compensation Act, 1923 to refer to the employers’ liability to compensate the employee and it implies that
workplace is not merely restricted to offices or companies but its ambit extends wider to include
all forms of work atmosphere from including
industries, government organizations, govt. companies, corporations,
cooperative societies, hospitals,
private sector enterprises, trust, NGO, and other services etc, within its purview and with regard to unorganized
sector it covers individual enterprise owners or any enterprise with less than 10 workers, so as to ensure that the cover of legislations extends to all category of work enclosures.
Workplace abuse-
can be defined as the belittling or threatening behaviour directed at an individual/ group of workers which may
cause emotional or physical harm. It can be broadly classified into various
categories viz.,
i)
Discriminatory Harassment – wherein the employee/ worker get abused on the basis
of race, sex, caste, religion, gender or even
standard of life.
ii)
Personal Harassment – includes inappropriate/
harsh comments or offensive jokes leading to personal humiliation is one kind of intimidating tactics.
iii)
Power Harassment–is where the workers/
employees are burdened
with unachievable targets,
forcing them to do something
outside the scope of the job etc.
iv)
Psychological harassment – A hostile
working environment which includes isolating or trivializing the victims’
ideologies, spreading rumours and gas lighting
victims.
v)
Physical or Sexual Harassment–The most
common kind of harassment meted out to women, includes direct threats to inflict harms, inappropriate behaviour
or handling and causing physical attack,
thereby outraging the modesty of women.
Despite being the most prominent form of workplace
abuse, it has always been hard to interpret as it involves a wide range of
behaviours where at times even the victim finds it difficult to explain
or share their
experiences. International instruments define sexual harassment as “violence against
women and discriminatory treatment”[7]. It is
pertinent to note that this violence need not necessarily be by men alone but
can also be by someone of the same gender or a
neutral gender.
Reddresses sexual harassment as a serious
manifestation of sex discrimination and a violation of Human Rights and
includes two key elements –quid pro
quo (physical, verbal or non-verbal conduct of sexual nature affecting the dignity of women and a person’s rejection
of or submission to such conduct being used as a basis to affect his job)and hostile working environment (conduct
that creates a humiliating work environment for the recipient)[8]
Moreover
court held that any International Convention which is not inconsistent with the Fundamental Rights and in harmony with its
spirit must be read into the provision of Part III of the Constitution so as to promote constitutional guarantee
and since there is no law relating to Sexual Harassment at workplace, court
relied on the Convention on Elimination of All Forms of
Discrimination against Women (CEDAW - signed by India in 1980 and ratified in
1993) in interpreting Art. 14, 19 and 21 of the Constitution.[10]
Although
the Vishaka case came in 1997, a proper definition for sexual harassment was
laid down only by the Criminal Law (Amendment) Act, 2013, wherein
s.354A of IPC was inserted to
define sexual harassment in a fashion
very similar to that of Vishaka case including physical
contact and unwelcome sexual overtures, demand of sexual favour, showing
pornography against the will of a woman and
making sexually coloured
remarks. The international definition is
broader when compared to the national laws as national laws focuses more on illegal conduct rather than an unwelcome
sexual conduct which creates a hostile
or offensive work
environment. However, the following
do not fall under the category of sexual harassment viz., Performance counselling, social interaction, personal encouragement, mark of concern,
polite/ friendly remarks/
conversations/ compliments.
III -
Vishaka Case an outlook
The
term Sexual Harassment got a definite form only after this case where it was
proved that the Independence of
Judiciary is the crown jewel of our Constitution. The instant case is a milestone
under the banner
of judicial activism
wherein the Hon’ble
Supreme Court laid down guidelines to combat sexual harassment
against women at workplace. It is also the first case where international covenants were applied to municipal
and district level courts
directly.
The case revolves around
Banwari Devi, a social worker,
who was raped
by an influential man named Ramakant Gujjar along with 5 of his men in front of her husband, in revenge for having stopped a child marriage in the Gujjar
Family. The Trial Court and High Court went on to acquit the accused for lack of evidence but the Supreme Court
rose to the occasion and came up with elaborate guidelines to deal with the
issues.
The
Hon’ble Court held that sexual harassment leads to gross violation of
fundamental rights as provided under
Art. 14, 19 and 21 of the Indian Constitution and for the first time gave a solid definition
for sexual harassment.14 The Court then laid down that it shall
be the duty of the employer or other responsible person at workplace to inform, produce
and deal with the matter
in the appropriate manner which shall include
criminal proceedings under any appropriate law and disciplinary action.
Timely
and effective redressal of complaints by an effective mechanism like complaints committee, headed by a woman and to necessitate third party intervention like NGO to prevent pressure
from higher officials. Where creating of awareness in this regard and ensuring
that irrespective of private
or public employer, all the aforementioned rules and prohibitions shall be
included in the respective Industrial Employments (Standing Orders) Act, 1946.
Policy on Prevention of Sexual Harassment and its Objectives-
Based on the Vishaka
Case guidelines, every company shall formulate a policy to prohibit, prevent
and redress sexual harassment issues at
workplace so as to
-
Ensure compliance of Supreme Courts’ judgement and the Act
-
For providing a grievance redressal
mechanism to attend to complaints in that regard
-
To prevent unwanted
conduct, both physical, verbal or non-verbal contact, jokes, comments, mannerisms etc.
IV - Post
Vishaka scenario
Almost 90% of the workplace abuse remains undisclosed due to varied
factors like retention of employment
as the job is the sole financial support, loss of self-esteem when such abuses are exposed in public, fear of further
victimization etc. However,
some cases being
too prominent just cannot
be hidden from outside world.
Few such cases are-A gruesome
rape and murder case that shook the entire nation
was Nirbhaya case[11]
(December 2012) where a 23 year old medical
student was brutally
gang raped by 6 men in a bus and was thrown
naked in the streets of Delhi, who subsequently succumbed to injuries,
caused the parliament and Judiciary
to rouse from rest bring into force Criminal Law (Amendment) Act, 2013, so as to cover women from such demonic perpetrators. The term Sexual
harassment itself got a
structure only after insertion of Sec. 354A of IPC and in the same year the
Sexual Harassment of Women At
Workplace Act, 2013 was enacted, standing as the first of its kind legislation
in India.
In Apparel Export
Promotion Council v. A.K. Chopra[12] a complaint was filed by a women employee who was abused by her superior
but no physical contact was involved. Invoking the Vishaka case guidelines, the court held the superior guilty,
stating that physical contact was not necessary for sexual harassment. Similarly,
the Vishaka case guidelines was implemented in Saudi Arabian Airlines,
Mumbai v. Shehnaz
Mudbhalkal [13] wherein the manager of the airlines
harassed an employee Shehnaz Mudbhalkal, requesting
from her, sexual favours and threatened to fire her on denial of the same.
The Court held that she has to be reinstated with payment of back wages.
In
Ruchika Singh Chhabra vs. Air France
India and another[14] Asurvey
by the National Bar Association, was
put to the notice of Delhi High court, which revealed that most of the companies
weren’t following the guidelines putdown
under Vishaka case, including the respondent
company. The court held that “An employer's unwillingness or incapacity
to provide such safety and equality at the workplace
is implied by a permissiveness or infringement in
execution in one instance”, and also made it clear that the Vishaka guidelines are to be strictly adhered to and not as a
mere ritual, so as to maintain justice and ensure that no one is subjected
to unwanted or inappropriate behaviour.
Malabika Bhattacharjee v.
Internal Complaints Committee, Vivekananda College and others[15] Court held that
considerations are given to the complaint made against the ‘respondent’ who shared the same gender as that of
the complainant, both being women. [16] Court further held that reads “any person”
whereby even a same gender
respondent/ accused can be bought within its purview[17]. Similarly,
with regard to filing a complaint of sexual harassment
under Sec.9 of the Act, there is nothing that precludes complaint against the same gender.
V - Legal
Frame Work on Sexual Harassment of
Women at
workplace
The
Object of the Act – the revamp of
criminal laws in 2013 also resulted in the separate enactment of this act to curb the rising statistics of workplace abuse against women, to provide
protection, and for the prevention and redressal of complaints of sexual
harassment and for other matters
connected therewith.
The
Act also recognizes and defines the victim as “Aggrieved Woman”of workplace abuse and that every woman has a right to safe and secure work environment irrespective of her age, work status, whether
domestic worker, ad hoc, regular/
temporary, for remuneration/ voluntary basis,
daily wage, employed directly or through agent, contract worker, trainee,
probationer, apprentice and such others shall be protected under the Act.
“Employer” under the act includes
–
-
Head of Departments/ organizations/ establishments or branch/ unit of the Appropriate Government (Central/ State Government owned or established workplaces), local authority or such other
officers specified thus;
-
Persons responsible for management, whether
contractual or otherwise, or those in charge of supervision and control of a designated workplace;
-
A household who employs domestic
worker;
As per the POSH Act, 2013 and by the Guidelines of Vishaka case, the
above mentioned authorities, without
creating a hostile
work environment, are required to maintain a workplace free
of any kind of harassment,
especially sexual harassment, for
which
i)
They shall effectuate detailed
policies
ii)
Conduct awareness orientations
iii)
Constitute various committees to for redressal
of complaints and ensure such
complaints are heard of and
dealt with by trained/
skilled persons
iv)
Prepare and submit reports on the same to the local authorities and appropriate governments.
Preventive and Prohibitive Measures under the
POSH Act, 2013
The
Act provides for the constitution of two committees, each of which must be
represented by a minimum of 50% women
and the members of which shall hold office for a period not exceeding
3 years from the date of appointment. These are the Internal Complaints Committee and the Local Complaints Committee so as to
enable women of organized and even unorganized or small scale business establishments, having complaints against
an employer or co-worker, be
it at an establishment/ domestic level, to work in a harassment free environment.
The complaint procedures provided under the act however, are complex and consists of 15 burdensome steps, exhibited in the image below[18], after the completion of which alone, adequate action shall be taken on the wrongdoer.
Source: Handbook on Sexual Harassment of Women at Workplace (Prevention,
Prohibition
and
Redressal) Act, 2013 – Government of India (2014).
The Act, despite having
noble aims couldn’t achieve
it as planned for varied reasons.
1.
The Act came into force
with noble objectives yet has been struggling to reach its goal
due to the existence of loop holes in the law. The law talks about
creating redressal committees like ICC at institutions or offices but makes no mention
of it being mandatory, neither does it acknowledge its expensiveness.
2.
The Cumbersome procedures involved in registering a
complaint with one of the two committees,
subsequent planning, interview for hearing the complaint, reasoning and preparing reports on findings and making
recommendations after which alone action will
be taken, is nothing but delayed or rather denied justice, since by that time
the abuser may have found his way out of the issue.
3.
Moreover, it talks about the members of ICC being from
the same organization, which paves way to employer
supportive employees which shall make the decision
unfavourable to the victim.
4. The Act
holds employer in-charge of addressing employee grievances, but doesn’t make a mention of situations when employer is the wrongdoer himself. And with regard to co-workers being witness to a particular
issue, will refuse to testify the same in fear
of losing the job/ victimization.
VI -
International Instruments governing
sexual harassment of women at workplace and gender discrimination
Sexual
Harassment is a major Human Right violation and thus stands covered under
varied conventions like
1. Universal Declaration of Human Rights,
1948 under Articles
1, 2 and The Convention on Elimination of All forms of Discrimination against Women (CEDAW)
as mentioned above was ratified
by India in 1993 and excerpts from it were also used to help interpret Art. 14, 19 and 21 of the Indian
Constitution with regard to sexual harassment and related violence.
2. Meanwhile
the International Labour Organization, in its Centenary Conference held in June 2019 adopted
the Violence and Harassment Convention (No. 190) and its accompanying Recommendation (No.206)
so as to ensure that violence and harassment in the world of work will no longer be tolerated, to put to an end to all forms of gender-
based
violences and it was developed by the Tripartite consultation of Employer, employee
and government representatives. This remains unratified by India.
3. International
Covenant on Economic, Social and Cultural Rights, 1966, aims at enjoins member states to guarantee rights
without any discrimination, so as to ensure equality between men and women as enshrined in Article 7.
4.
ILO Discrimination (Employment and Occupation)
Convention, 1958 and United Nations Convention on the Elimination of All Forms
of Discrimination against
Women (CEDAW), 1979
prescribes states to eliminate all forms of discrimination against women in employment so as to uphold their equality. Recommendation No.19 in 1992
talks about gender
specific violences and the measures
states are bound to take.
5.
The Beijing Platform of Action, drawn at the UN
Women’s Conference in 1995, advances
women’s rights and eliminates violence
against women, including
harassment at work.
VII - Conclusion and Suggestions
A look back at the past certainly shows our progress
from having no mechanism or legislations for redressal of workplace abuse to a
woman to having a fullfledged and robust mechanism at present. However, an in-depth view of the issues has brought
to light that a law cannot be unidimensional, that too a law as revolutionary as Sexual Harassment of Women in Workplace with huge social implications definitely
has to make its way to perfection only with much struggle. I personally feel that there’s a certain limit which
alone government/ judiciary can help, beyond which, public awareness, sensitivity, and being rightful to ones’ conscience, with regard to the abusers
is what matters
most. Propelling towards
a fear free and safe work environment for women along with positive
hope shall be the end goal and outcome of this research.
The following are suggestions of this paper
1. Addressing the shortfalls of the POSH Act will itself open up a wide way against sexual
harassment of women at workplace.
2. Further, creating
a committee/ organization specially to look into such workplace abuse
issues, free from the concerned
workplaces and its members’ control.
3.
Reducing the number
of steps to deal with a complaint so as
to render timely justice.
4. Following
the UN Guiding Principles on Business and Human Rights30 ‘Protect’, ‘Respect’
and ‘Remedy’ should be the main moto,
also ensuring that mere existence of right will not suffice,
but “access to that right”
should also accompany. And this “access
to justice” shall be coupled
with “access to effective remedy”
and it’s the responsibility of state, government, companies/
organizations and other civil organizations to ensure its effective implementation.
5. Many
conventions with regard to women’s rights and safety are effected but left unratified, ratification or adoption of
its crux into national legislations, may help serve the purpose.
6.
Only when the state stands by women, will they have
the confidence to go against the wrongdoer,
failing which the fear of further victimization or torture may never allow them to take a step forward.
[1]
Indian Constitution Article 15(3)
provides that the state may not prevent itself from making laws that provide
special provisions for women and children
[3]
Indian Penal Code, 1860, Sec.354; Act No.45 of 1860 (India)
[4] Rajesh Arora,
“Prevention of Sexual
Harassment of Women at workplace: Need for changes
in policy”, page 554,
Chartered Secretary(ICSI), (2014)
[5]
Handbook on Sexual Harassment of women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013, Government
of India (Ministry of Women and Child Development) 8, (2014)
[7]
Nikunj Keyal, Sexual Harassment of women at workplace, LEGAL SERVICES INDIA
(Feb. 14, 2023, 21:19 pm), https://www.legalservicesindia.com/article/2114/Sexual-Harassment-of-Women-at-Workplace.html
[8]
International Labour Organization Discrimination (Employment and Occupation)
Convention 1958 (No.111),
ratified by India in 1960
[10]
Ibid., Note.9
[18]
Handbook on Sexual Harassment of women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013, Government
of India (Ministry of Women and Child Development) 8, (2014)
Article Information
WOMEN AS VICTIMS OF WORKPLACE ABUSE – AN ANALYSIS
Authors: DR. D. KANNAN, MIS. RIDDHIMA KRISHNAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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