Introduction to sexual harassment

Sexual harassment is the behaviour of making a person uncomfortable with explicit or implicit sexual overtones, including unwelcome or inappropriate advances and promise of rewards/using of threats to obtain sexual favors. Sexual harassment includes a range of actions from verbal harassment to sexual abuse or assault. It is often dismissed as a harmless or benign act and has the effect of denying a persons’ fundamental right to safely occupy a public space. 

Sexual harassment against women is such a common prevalence that women across the globe face inappropriate/scarring situations on a daily basis. The definition of sexual harassment relies on the victim’s interpretation of the behavior (wanted or unwanted) and the reasonable boundaries of decency that have been breached.

Sexual harassment carries with itself grave consequences for the victim such as physical and mental stress and even a single act of harrassment can cause chronic mental disorders and illnesses thereby severely impacting the persons’ chance in life. The short term and the long term effects of such encounters are deleterious and often lead to a victim spiralling down into chronic depression and even suicide. 

Steps are constantly taken to address this vice prevalent in society which has the dangerous effect of normalizing sexual assault and other heinous crimes against women in particular. A lot of effort is put in providing a safe space for victims to speak up about their encounters and banish the mentality of casting doubt on such allegations/trivializing them as mere flirtatious back and forths or blaming the victim for supposedly facilitating such behaviour.

At the same time, sexual harassment constitutes a perpretuation of sexism or attempted gender subjugation. This is in no other place more apparent than in the workplace. Sexual harassment in the workplace is generally found to be inflicted upon female workers and carries undertones of sexism and thereby attempting to affect the women’s fairing in such places. Although it includes serious instances of harassment, it is often presented in a subtle manner which has equally dangerous effects of alienating female employees. 

In India, this problem is widespread and various governmental efforts have been taken to curb this evil prevalent in workspaces. 

The Vishaka guidelines dealt with sexual harassment at the workplace and explicitly defined sexual harassment as including “such unwelcome sexually determined behavior (whether directly or by implication) as:

1.  Physical contact and advances;
2. A demand or request for sexual favours;
3. Sexually coloured remarks;
4. Showing pornography;
5. Any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Indian Constitution on Sexual harassment

Sexual harassment clearly violates the fundamental rights of a women to equality under Article 14 and Article 15, her right to life under Article 21, and her right to practice any profession and carry on any occupation, trade or business, which includes a Right to safe environment free from sexual harassment.

IPC on Sexual Harassment

In 2013, ample changes were made in the way sexual harassment was viewed within the criminal justice system in India. The India Penal Code, 1860 has also defined the term sexual harassment and related offences and put forth punishments for the same: ·

1. Section 354A- Sexual harassment is: unwelcome physical contact and advances, including unwanted and explicit sexual overtures, a demand or request for sexual favors, showing someone sexual images (pornography) without their consent, and making unwelcome sexual remarks Punishment: Up to three years in prison, and a fine.
2. Section 354B- Forcing a woman to undress. Punishment: From three to seven years in prison, and a fine.
3. Section 354C- Watching or capturing images of a woman without her consent. Punishment: First conviction – one to three years in prison and a fine. More conviction–three to seven years in prison and a fine.
4. Section 354D- Following a woman and contacting her or trying to contact her despite her saying she does not want contact. Monitoring a woman using the internet or any other form of electronic communication (stalking). Punishment: First conviction – up to three years in prison and a fine. More than one conviction–up to five years in prison and a fine.

Sexual harassment at the workplace

The Supreme Court of India has taken a broad interpretation of what constitutes “the workplace”. It does not limit the workplace to a geographical location such as the organization offices or premises. For the purpose of defining sexual harassment at the workplace, “workplace” means either in the context of workplace relationship or whilst fulfilling professional duties.This means that even if the harassment takes place outside working hours and outside the premises of the organization, it is considered to be sexual harassment at the workplace.

Sexual harassment can take place in many forms and in any circumstances. At the workplace, this can be broadly categorized under two heading:- 

1. “quid pro quo” and 
2. the creation of a hostile work environment.

Quid pro quo means “this for that”. It indicates a mutual exchange of something (money, goods, or any type of favour) between two parties. This form of sexual harassment is often used by superiors to exploit women in the workplace for personal gratification. And it can cause job loss or demotion, if the said demand is not fulfilled. Examples of quid pro quo harassment situations include a manager promising an employee a job, a raise, a promotion in exchange for a sexual favor, attempts to influence a co- worker or subordinate to submit to unwelcome sexual advances, etc

The creation of a hostile work environment is more ambiguous. It is created by a boss or co-worker whose actions, communication or behavior make doing your job very difficult. This means that the behavior alters the terms, conditions, or reasonable expectations of a comfortable work environment for employees. Threatening gestures or any unwelcome touching or gesturing can create a hostile work environment. The most obvious examples are someone groping an employee or getting into a physical altercation with an employee. 

Steps to be taken by the Victim of Workplace Sexual Harassment

Sexual harassment, especially when allowed to continue over long period of time, can take a serious physical and emotional trauma on the victim. Therefore, it is very important to stop sexual harassment, as quick as possible. So, it becomes very important for a victim of sexual harassment to stay strong and she is the only one, who have to play the role to bring harassment to an end.

At the very first, every woman must know certain things about sexual harassment:

1. One should never ever ignore sexual harassment in the hope that it will go away as the time passes. It won’t. You must know that sexual harassment is a violence against you and this must be stop by you.

2. One must clearly say ‘NO’. One must make it very clear about what you don’t want and that the behavior is totally unwelcome and you also have to make the person realize that the behavior is harassing you and is offensive. It can be possible that the harasser never realized his behavior was offensive one.

3. The victim should endeavour to keep evidence of acts done by the harasser to harass the victim. If the harassment is violent, verbally or physically, the victim must seek help from the company, the police or any other non- governmental body working on women’s issues. If the harassment includes physical assault, she must get a medical examination done and keep the reports safe. Evidence is a must to pursue a legal case. And if the harassment is less- violent, one must document the incident precisely and record every event, along with the place and time of the same. One must remember to make such documentation or notes in their personal computer or notepad and not in the office computer.

4. And then, one can opt some of the informal ways to stop the harassment against you. Such as:

4.1.    By sending a copy of the institution sexual harassment policy (if anti- sexual harassment policy is already formulated at your workplace) to the person who is making you uncomfortable, with appropriate sections underlined.

4.2.    By writing a letter to the perpetrator about all his offensive behavior, incidents, saying that you want this behavior to stop immediately. This letter should be sent by the registered post and a copy of the same must be kept for future reference. It can also be used as evidence of any official complaint or legal proceedings.

5. If the above informal ways do not stop the harassment, filing a formal complaint will be the next step.

6. At first, the victim of the sexual harassment needs to find out, if her workplace already has a complaints committee to deal with sexual harassment. And if it already exists, she must find out the name of the appropriate person who deals with these complaints and report the behavior of the harasser to the appropriate person. And in case, the workplace do not have any policy to deal with the complaints regarding sexual harassment, a demand to formulate such policy in the workplace must be made, so that the future victims of sexual harassment in the workplace have the mechanism to address their situation. The victim may also demand employer’s help in filing a legal case. It may happen that the employer or the concerned higher authorities of the company do not solve the problem, in that case, the victim should not rely exclusively on them. If the victim is a member of the labour union, then she must discuss the problem with the union representatives. Or lastly, one may seek help from any non- governmental organization, who deals with the issues related to sexual harassment of women in the workplace and pursue legal action against the harasser.

It may happen that the other members of the company may have very close contact with the harasser and end up being hostile, when a victim files a complaint for sexual harassment and even try to scare her, so that the victim ends up withdrawing the complaint. The company may launch an investigation and try to find an excuse to fire the alleger from the company so that the company does not suffer public scrutiny due to the complaint. The company may also select a complaint committee that may act hostile to the victim. And at last, the harasser may attempt to hit back against the victim through further harassment.

As a victim, the very first step is to prepare for such hindrances and obstacles and be aware of all her rights. And then, of course, it is not enough to just know their rights but at the same time, it is equally important to empower yourself with the ability to force the employer to behave appropriately. And for this reason, one should seek help from an activist or any organization that deals with the issues relating to the sexual harassment, before begining with a formal complaint procedure. So that, if at any point of time, the victim feels or thinks of withdrawing the case due to any undue influence or force or any mental pressure, that may have been created by the company or her co-worker or any superior, she can get support of the NGO or any other individual activist.

An organization working on this issue can give a victim a channel to exert pressure on the employer, if the setup of the complaint committee and investigation against the harasser is not proper enough. A NGO is well equipped to get the public pressure and publicity campaign against a misbehaving employer.

An organization can also bring legal pressure, if required, and can help with the best resources to connect with a lawyer or give any legal guidance. It is sometimes very important to get emotional and physiological support, as the victim may face various challenges in every step of the way.

According to the law on sexual harassment at the workplace, women can file a complaint for sexual harassment.  This law leaves the scope of the term “sexual harassment” quite wide, thus, guaranteeing protection to women employed in varying workplaces i.e. governmental, private, educational institutes and households. 

Complaining to the ICC or the police

Every workplace must constitute an Internal Complaints Committee (ICC), which looks into sexual harassment complaints. One must report a complaint within three months of the last instance of sexual harassment, faced. Or a victim can file a FIR at the local police station, or file a private complaint to the Magistrate.

Compensation

If the complaint is proven, a victim is entitled to receive compensation from the perpetrator. The amount of compensation is decided based on the emotional stress and trauma faced by the victim, loss in professional opportunities due to the harassment, financial status of the victim, etc. 

Alterations in the work environment/protections in the work environment

After the complaint has been initiated, one may send a written request to the ICC to:

1. Restrain the harasser from reporting on the her workplace;

2. Restrain the harasser from supervising her;

3. Transfer her or the harasser so that she can work in a safe space;

4. Grant her a paid leave for 3 months, in addition to the leaves she already has.

Privacy during proceedings

The law provides a framework where your privacy is protected during and after the ICC proceedings by punishing the persons who reveal the contents of the complaint, identity or address of the victim, information about any inquiry made by the ICC, etc.

Appeal

One has a right to appeal to the authority given in the service rules of your workplace or the Local Complaints Committee (LCC), within 90 days.

Punishment for the harasser

The ICC can decide to punish your harasser in innumerable ways, such as transfer to another office, withhold raise/promotion, deduct salary, pay monetary compensation or terminate the perpetrator’s job.

Conclusion

Sexual harassment is a serious problem in the workplace and it has become one that receives a lot of negative attention. The harsh reality of sexual harassment cases at workplace is that there is more to worry about under-reporting than people misusing the law but there are many women, on the other hand who do face sexual harassment on a daily basis. However, sexual harassment can take place, both with male and female in the workplace. Many women face the issues regarding sexual harassment in India, and keep their mouth shut because of many reasons. Women keep on tolerating the harassments, some in the hope that it will shop and go away, some in a fear that they will lose their job, some also think that if they report a complaint, their whole family may have to suffer the consequence and  many more.

Therefore, I would like to conclude by saying that the laws are made for the protection of victims, and every human must support a victim so that this kind of violence does not take place in the society. And nobody should misuse these laws, as they are sometimes the reason behind injustice of actual victims, those who really suffer.