By Harshpreet Kaur
Published On: November 08, 2021 at 18:10 IST
Introduction
We are very well versed with the term harassment, the first thing which comes in our mind hearing this word is mental suffering and that’s right but not limited to it, harassment is an unwelcoming behavior or conduct that annoys someone repeatedly or constantly, it can be based on many factors like- race, color, religion, sex, disability etc.
Harassment in Workplace includes bullying, insults, offensive jokes or pictures, slurs, physical assaults etc., we can be broadly divided it into 5 categories namely:
- Verbal Harassment
- Psychological Harassment
- Physical Harassment
- Sexual Harassment
- Cyberbullying
Verbal harassment consists of body shaming, hurtful comments, slurs, threats to destroy career or health, unwanted criticism etc.
Psychological harassment consists of forcing to work outside of their scope, asking for impossible favors, taking away credit of the person’s work etc. victims in this case genrally faces mental breakdown, low self-esteem.
Physical harassment consists of inappropriate touching, physical assaults, and damaging property, etc. Generally people belonging to LGBT communities face this type of harassment
Sexual harassment consists of sending sexual videos, unwanted touching on purpose, asking sexual favors, showing vulgar gestures etc., It is not gender specific and can happen to both males and females.
Cyberbullying is a new form of harassment, which gain its existence due to advancement of technology, it happens online through use of social media, and has a vast impact on the person because in this case the person is defamed in front of public especially in front of their family. Although the victim can document and report it, but somewhere when source could not be found it’s more difficult to control it.
What is Sexual Harassment?
Sexual harassment is one of the worst harassment that an employee has to go through among others, it not only hampers an employee emotional or mental state but can go on to disturb one’s whole life. Although it is not gender specific but surveys has brought out that women are most affected by this harassment. India’s largest survey on sexual harassment was conducted by Indian National Bar Association during April 2016 to October 2016 shows that:
- Around 78% Female employees were victims of sexual harassment
- And around 22% Male employees were victims of sexual harassment.[i]
Sexual Harassment is not only illegal but it is a heinous crime; it includes unwelcoming or inappropriate gestures, asking sexual favors for promotions, inappropriate touching etc. it can be further broadly divided into 3 categories namely,
- Verbal/Written
- Physical
- Visual
Verbal/Written harassment are very common in offices, and it is increasing ever since due to technology some instances could be- sending unwanted emails repeatedly, texting for dates or sexual favors, making derogatory comments, talking ill about the person behind their back etc.
Physical harassment is something which is more devastating and it sometimes become difficult to recognize as it is very devious. Some instances could be- lewd hand gestures, unwanted touching the person or their clothing, unnecessary going to the person again and again on purpose, making sexually suggestive facial expressions, etc.
Visual harassment is very difficult to stop as it is the hardest among all to spot, the person plays with the victim indirectly and one has to be in the shoe of the victim to understand his position. Some instances could be- displaying posters of sexual nature, wearing clothes of vulgar language, watching pornographic videos etc.
Sexual harassment at Virtual Workplace: During Covid-19
A pandemic can change a person’s life upside down, researches have shown that during pandemics like SARS, Ebola etc. gender based violence increases and that’s what exactly happened during Covid-19 pandemic. Loss of job, insecurity, loss of power, uncertainty in life are few of reasons which can cause increase in harassments.
Covid-19 brought in new ways of working environment, Work from home is something which was called for by most companies due to social distancing and lockdowns. During such time meetings and conferences started taking place online through platforms like- Zoom Meeting, Goggle Meet etc., and people found new forms of harassments in Virtual Workplace, for instances:
- Inappropriate behavior by boss/colleagues: A woman told that her boss forced her to show her body instead of face in Zoom call meeting
- Showing genitals: “Jeffrey Toobin, a writer for the New Yorker and a political analyst for CNN was suspended for “unintentionally” exposing his genitals to his co-workers during a Zoom call. His co-workers reported that he was masturbating, and in Toobin’s apology, he said he thought he was off-camera.”[ii]
- Social media: Social media harassment has widely increased during this pandemic, people were more active on social media then before and people started harassing people in social media
- Video calls/meetings at odd hours: Now this is something which was not so common in professional companies but they do take place in more of unorganized sectors, or where there is a not a formal meeting but a meeting between a boss and their sub-ordinates.
- Inappropriate attire: Work from home also brought an opportunity to go out of uniform and wear casuals but that also brought in disadvantages for many, women’s screenshots were taken whose attire was not so proper during the meeting unknowing of the fact that their video was on. This does not come to end here, many women were judged for their attire, unwanted comments were passed on their appearance and attire. It ranges from women been told to wear more make-up and “sexier” clothes to wearing pajamas were judged as invitation to have sex.
Vicki Schultz, professor of law and social sciences at Yale Law School, said that, a colleague is wearing pajamas during a meeting is “not necessarily an invitation to sex,” she further said, “This is a mischaracterization of what sexual harassment actually is and misses its meaning as behaviour that undermines equality,”[iii]
A woman named Anita, an employee of software firm, said that, in an official business meeting her middle-aged boss had decided to show up in just a vest and boxers, she alleges that her boss remained fidgety and kept touching and rubbing himself in odd places. She said that, “It was traumatising. I have been working in this company for just under a year. I didn’t know how to bring it up but that is not the appropriate attire for a meeting,” [iv]
- Muting/Not inviting for meetings: As simple as this problem looks like it is not so, worldwide women faced such problem, where either they were muted on the video calls or not invited at all, this can be actually lead to psychological harassment.
Mimma Caligaris, president of the National Federation of the Italian Press’s equal opportunity committee, said that, “Muting women on video calls or not inviting them to meetings happens “because women are not in positions of power.”
She further said, more home-working could have reduced cases of physical abuse, “but transformed them into more psychological incidents”.[v]
International Conventions to combat sexual harassment at workplace
- Discrimination (Employment and Occupation) Convention, 1958
This convention was convened at Geneva by International Labour Organization, with regard to discrimination that happens in employment and bring an environment which is free from any discrimination on basis of race, sex, and treat everyone equal, have spiritual development in conditions of freedom and dignity, of economic security and opportunity.
- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979
This convention was adopted in 1979 by UN General Assembly, with intention to bring equality between men and women. It has 30 Articles. The convention established Tribunals and other public institution for effective protection of women against any discrimination. This convention aimed at elimination of all acts that discriminate a women by any person, organisation or institutions.
- Indigenous and Tribal Peoples Convention, 1989
This convention was convened at Geneva by International Labour Organisation, with an aim to provide special protection to indigenous and tribal people in all regions of the world to provide them with equal rights and dignity. This convention was brought in eliminate all kind of discrimination these people face and at the same time protect their distinctive culture diversity, languages and identity.
- Violence and Harassment Convention, 2019
This convention was convened at Geneva by International Labour Organisation, it is an important convention which aimed at recognizing a Right of work – free from violence and harassment that is guaranteed to everyone around the world, this convention also recognises that such harassment is a violation of human rights and such violation is a threat to equal opportunities which is not acceptable in a decent work. It also recognise that it is important in a working environment to have mutual respect and dignity of humans to prevent such harassments. It also casts upon its members a responsibility to promote “ZERO TOLERANCE” to violence and harassment to prevent such behaviours.
India’s Legal Provisions to combat sexual harassment at workplace
- Constitution of India
Article 14: Our Constitution gives us a right to be equally treated, it ensures nobody is discriminated on grounds of religion, race, caste, sex or place of birth.
Article 15(3): Article 15 prohibit any person to discriminate on ground of religion, race, caste, sex or place of birth but clause 3 of Article 15 allows State to make special provision for women and children in order to make them stand equal in the society and it is not treated as discriminatory rather it stand on the pedestal of equal protection before law.
Article 19(1)(g): Article 19(1)(g) gives every citizen of India to practice any profession or occupation and thus any women cannot be stopped or discriminated to do any business or job.
Article 21: Article 21 is the heart of the constitution which ensures that no person is deprived of his life and personal dignity and thus anything done against women which hampers her dignity will be infringing her right and will be liable to punishment.
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH), 2013
This act came after 16 years on ineffectiveness of Vishaka Guidelines on Protection of women from sexual harassment at workplace given by Supreme Court. This act was enacted with an object to provide protection to women against sexual harassment at workplace at the same time prevent such things from happening in the first place and even if it happens ways to redress the complaints of sexual harassment.
Some Important provisions of POSH Act, 2013 may include:
Section 2(n): Section 2(n) defines sexual harassment as
“Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
- physical contact and advances; or
- a demand or request for sexual favours; or
- making sexually coloured remarks; or
- showing pornography; or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature
The court through this definition cast a vide meaning of sexual harassment including physical contact to any verbal conduct and showing vulgar contents.
Section 4: Mandates every employer of a workplace to set up an Internal Complaints Committee to redress the complaints of sexual harassment.
Section 19: Mandates some duties to employer which include, providing safe working environment at workplace, organizing workshops and awareness programmes on sexual harassment and POSH Act, providing assistance to women who chooses to file a complaint under Indian Penal Code, 1860 or under any other law, etc.
Section 26: If an employer fails to comply with the provisions of the act, he shall be punishable with fine which may extend to Rs. 50,000.
Landmark Judgement
- Vishaka & Ors Vs State of Rajasthan & Ors, 1997[vi] – “Guidelines on Protection of women from sexual harassment at workplace. Also known as Vishaka Guidelines”
In this case Supreme Court observed:
That Bhanwari Devi, who was a lower caste woman, was employed with the rural development programme of the Government of Rajasthan and was brutally gang-raped by 5 men of upper caste, but did not get justice due to lack of medical evidence, and thus a PIL was filed in name of vishaka by women activist.
That the case has also thrown light on how the women employees were exposed in workplaces and also highlighted the need to implement safeguards to protect women against such harassments. The court said that such harassment leads to violation of Article 14, 15, 19, and 21 of Constitution of India and thus laid down the guidelines to prevent sexual harassment at workplace and made guidelines applicable to all employers.
The court also held that sexual harassment includes unwelcome sexually determined behaviour & demands from males employees at workplace, such as:
Any physical contacts and advances
Sexually colored remarks
Showing pornography
Passing lewd comments or gestures
Sexual demands by any means
Any rumours/talk at workplace with sexually colored remarks about a working woman
Spreading rumours about a woman’s sexual relationship with anybody
- Apparel Export Promotion Council Vs A.K Chopra, 1999[vii] – “Physical contact not essential for an act to amount for sexual harassment”
In this case, Supreme Court observed:
That a superior officer was sexually harassing a female employee at workplace although there was no as such physical contact between the two but investigating authorities found that he has molested the female employee.
The court by expanding the definition of sexual harassment given under Vishaka Guideline case, said 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 conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”
- Medha Kotwal Lele & Ors. Vs Union of India & Ors, 2012[viii] – “Ineffectiveness or non-adherence of Vishaka Guidelines”
In this case Supreme Court observed:
That there was non-compliance or non- adherence to the Vishaka guidelines by majority of the states.
The court said that, “the implementation of the Vishaka Guidelines has to be not only in form but also in substance and spirit so as to make available safe and secure environment for women at workplace in every aspect and thereby enabling working women to work with dignity, decency and due respect.”
And directed the States to put in place effective mechanism for implementation of Vishaka Guidelines.
Recent Development on sexual harassment in workplace
- #ME TOO Movement
Metoo is a social movement which started in United States by Tarana Burke, an activist who was sexually assaulted, she started using metoo to help other women who were also sexually harassed or raped. It became a viral hashtag and a big movement against sexual abuse or harassment.
Women from all over the world got inspired and motivated to share their stories, which gave them strength and courage to fight against the wrong done and raise their voice against sexual harassment.
Accusations were also made by and against some of the prominent personalities, one of the most high profile case was against former junior external affair minister, M.J. Akbar by a journalist Priya Ramani, who had accused that she was called in a hotel room for a job interview and that the former minister had behaved inappropriately, later she found herself at the receiving a defamation suit. But in a very much appraised and a landmark case by Delhi High Court acquitted her charges looking into the fact how women faces difficulties in filing of a harassment case and said that, “the right of reputation cannot be protected at the cost of dignity.”[ix]
Another case came up by a Filmmaker Vinta Nanda who accused a veteran Bollywood actor Alok Nath, of rape. She said that, “Before the movement, I was afraid to move because I felt isolated and ostracized,” she further added but now, “I know I am not alone.”[x]
There were ample number of voices raised in #Metoo movement. However it cannot be denied that there were many Fake Cases that came up in the campaign.
- Delhi High Court: Reinstates Female Editor Who Got Terminated After Alleging Sexual Harassment At Workplace.
Delhi High Court has reinstated a woman, who was working as an Editor in an Akadami, she was terminated from her job because she accused her Organisation’s Secreatary of sexually harassing her. She alleged that “the Secretary used to make inappropriate sexual advances towards her and made racist and sexist comments.”[xi]
- Supreme Court: Sexual harassment at workplace is affront to rights of woman.
Supreme Court uphelding the verdict of Madras High Court, which quashed a transfer of women employee, who got transferred, because she alleged a sexual harassment against her senior officer. A bench of Justices DY Chandrachud and Ajay Rastogisaid that, “Sexual harassment at the workplace is an affront to the fundamental rights of a woman to equality under Articles 14 and 15 and her right to live with dignity under Article 21 of the Constitution as well as her right to practice any profession or to carry on any occupation, trade or business,”[xii]
- Bombay High Court: “Working Protocol” for Reporting Sexual Harassment at workplace.
Bombay High Court has passed a very important verdict on POSH Act, 2013 by issuing a set of guidelines giving a protocol according to which all the cases under POSH Act, 2013 will “only be heard in-camera or in the judge’s chambers and no media reporting on judgments will be allowed without prior approval.”[xiii]
Conclusion
Sexual harassment is not only a heinous crime but itself a grave violation of Human Rights, although many efforts have been put in place by courts and legislation but the crime still has a huge number of cases every year and couldn’t be stopped even in a virtual place also rather shaped itself in new forms of harassments.
MeToo Movements has showed many stories of women are unheard who either couldn’t gather the courage to raise their voice or felt powerless and alone against people at power, which shows that there are still many cases which are not reported at all, in fear of insecurity or losing of jobs.
Unfortunately, many fake cases has also been filed and fake stories has been told in Metoo movement either in form of getting revenge or getting famous etc., which weakened the movement and harmed the genuine cases.
Sexual harassment is not gender specific, men also faces sexual harassment in workplace but it is seen that comparatively women suffer more from such cases however we should not forget not only men are suffering from sexual harassment but also from fake cases against them. Both Men and Women should change their mind set and work toward a better violence and harassment free society.
ABOUT THE AUTHOR
Harshpreet Kaur is a final year student of LL.B. at Lloyd Law College. She has completed CS Executive and has won 1st Prize in Tax Quiz as well as Company Law Quiz. She is a very creative, responsible, self-motivated and practical person. She chose law as a career because she believes law is very interesting and she is working in this field to make the law interesting for others as well using platforms like YouTube on hp tales and Instagram on hp.tales.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
[i] Indian National Bar Association & Netrika Consulting, “ Report Garmia Sexual Harassment on Workplace”(2017)
[ii] Kim Elsesser, “Covid’s Impact on Sexual Harassment” (Last Visited on October 29, 2021)
[iii] New York Times, “Workplace harassment in the age of remote work” (Last Visited on October 29, 2021)
[iv] Rakhi Bose, “‘He Wasn’t Wearing Pants’: Cyberbullying, Sexual Harassment in the Age of Zoom Calls Covid-19” (Last Visited on October 29, 2021)
[v] Sian Norris, Claudia Torrisi, “COVID-19 hasn’t killed sexual harassment at work – it’s just moved online”, (Last Visited on October 29, 2021)
[vi] Vishaka & Ors Vs State of Rajasthan & Ors, AIR 1997 SC 3011
[vii] Apparel Export Promotion Council Vs A.K. Chopra, AIR 1999 SC 625
[viii] Medha Kotwal Lele & Ors. Vs Union of India & Ors, 2013 1 SCC 297
[ix] “What is the future of India’s #MeToo movement?” (Last Visited on October 29, 2021)
[x] Supra note ix
[xi] Nupur Thapiyal, “Delhi High Court Reinstates Female Editor Terminated After Alleging Racism, Sexual Harassment At Workplace” (Last Visited on October 29. 20201)
[xii] Press Trust of India, “Sexual Harassment At Workplace Is Affront To Rights Of Woman: Top Court” (Last Visited on October 29, 2021)
[xiii] Press Trust of India, “Court’s “Working Protocol” For Reporting Sexual Harassment At Workplaces” (Last Visited on October 29, 2021)