Why The Workplace Sexual Harassment Law In India Is Focused On Women?

At outset, I would like to clarify the nowhere the article is in denial of the fact that individuals not assigned female sex at birth and those who do not identify themselves as women are not victims of workplace sexual harassment. Also, it is important to recognise that complaints from them need to be acknowledged and redressed through mechanisms within organisations. However, the article is an attempt to explain reasons for India having a workplace sexual harassment law for women.

The article is divided into four parts. First part describes the conditions that lay foundation for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – hereafter referred to as the 2013 Act. Part two is about the developments after the Supreme Court of India issued the Vishakha guidelines (1997) for employers pertaining to prevention and resolution of sexual harassment of women at workplace. Third part deals with factors in the present which continue to necessitate that law on workplace sexual harassment priortises women. Part four is connected to part three and links sexual violence against women to paid work which again brings us to understand importance of workplace sexual harassment law for women.

Stitched together, I present a picture that explains need for a workplace sexual harassment law focused on women.

Part One – Vishakha (1997) and Need for a law on workplace sexual harassment

A 2006 document said that the Vishakha judgment filled a gap in domestic laws related to violence against women in India. It upheld constitutional rights of women by directly applying the provisions of CEDAW to enact guidelines against sexual harassment in the workplace. Vishakha saw integration of the Indian Constitution and CEDAW. It recognised that sexual harassment violated the constitutional guarantee of gender equality, women’s fundamental rights to life with dignity, to personal liberty, and to carry on any occupation. Along with the fundamental rights, Directive Principles from the Indian Constitution regarding securing just and humane conditions of work and maternity relief, and the fundamental duty imposed on all Indian citizens to renounce practices derogatory to the dignity of women were mentioned by the Court. In the absence of a national legislation on sexual harassment of women at workplace, the problem was effectively expressed and situated in the language and framework of Constitution of India (1950) and international law. In other words, Constitution of India and international obligations became the basis for sexual harassment law in India.

Part Two - Scenario After Vishakha (1997)

Most studies in India done immediately after Vishakha (1997) till recent times confirm that sexual harassment of women at workplace has been prevalent, persistent and rampant (Sakshi, 2000; Sanhita, 2001; Yugantar, 2003; ICHRL-SNDT-JJ Hospital, 2004; ICHRL-SNDT-VJTI, 2004; ICHRL-Sophia College, 2003; Population Council, 2006; IPSOS- Reuters, 2010; Oxfam, 2012; INBA, 2016; HR Helpdesk, 2017; Pink Ladder, 2019; NWMI, 2020). Women spoke about direct and subtle forms of sexual harassment at their workplaces such as touching, looks, comments on body and clothes, personal questions, suggestive remarks, jokes with sexual innuendoes, sexist humour, gossip, telling sexual stories, forcing for friendship, invitation to join at pub, lunch or dinner, pressure to please clients, asking to sit closer, exhibiting porn, abusive language, demand for sexual favours in exchange of promotion and other employment benefits (Saheli, 1998, SARDI, 1999, Sanhita, 2001, LC-ILO, 2002, ICHRL- Sophia college, 2003, Population Council, 2006, CFTI, 2010, and Oxfam, 2012). This resulted in the women feeling humiliation, anger and trauma (Saheli, 1998 and Sanhita, 2001). Both Sakshi survey (2001) and the Yugantar study (2003) showed that sexual harassment of women resulted in loss of their productivity, ill health, depression and suicides.

Articles by Radhika (1999), Pinglay (2012), Deshpande (2012, 2013a, 2013b) provide insights into long drawn struggles of several employed women who protested against sexual harassment, challenged the employer for not complying with Vishakha and in return were terminated from their jobs for doing so. These articles highlight and emphasise repeated defiance of Vishakha and revictimisation of the women by the employers. Poor and faulty implementation of the Vishakha guidelines was discussed in articles by Oversier (2010) and Mujumdar (2003). They confirm that the issue of sexual harassment was largely been swept under the carpet in India. These articles revealed that overall awareness among Indian companies about the need for a well-defined mechanism to tackle sexual harassment at the workplace was nonexistent.

A Joint Parliamentary Committee report (2011) revealed that in the face of poor implementation of the Vishakha guidelines (1997) by employers, a law safeguarding the rights of women at their workplace was needed. The report further said that since there were no studies focused on sexual harassment of men at workplaces, gender based classification of complaints was not possible. The Committee concluded that given the patriarchal nature of Indian society, the number of women needing redress from sexual harassment at workplaces was high. The Committee concluded that so far Supreme Court guidelines remained on paper in majority of workplaces. Further taking cognisance of this situation the Supreme Court of India directed in Medha Kotwal vs. Union of India (2012) directed that since legislation on sexual harassment at workplace was not in place and many women were struggling to have their basic rights protection implementation of the Vishakha guidelines needed serious attention.

Sustained struggle by the women’s movement for over fifteen years resulted in enforcement of the law on 9th December 2013. The 2013 Act acknowledges unequal gender relations at workplaces by recognising specific constraints and needs of women in India. It is an example of an explicit form of affirmative action under Section 15(3) of the Indian Constitution, which allows the State to enact special laws for women. The 2013 Act being a civil law is able to address those kind of sexual transgression faced by women at workplaces i.e. staring / spreading rumours etc. difficult to be addressed by straight jacketed criminal law. The 2013 Act is an employer driven legislation that promotes awareness and envisages a workplace with free from sexual harassment.

Part Three - Gender Equality and Women

It is known that India ranks 135 among a total of 146 countries in the Global Gender Gap Index,2022, released by the World Economic Forum. Global Gender Gap Index is a report is annually published by the World Economic Forum (WEF). It benchmarks gender parity across four key dimensions namely economic participation and opportunity, educational attainment, health and survival, and political empowerment. The report aims to serve “as a compass to track progress on relative gaps between women and men on health, education, economy and politics”. According to the WEF it is the longest-standing index, which tracks progress towards closing these gaps over time since its inception in 2006.

1. Educational Attainment includes indicators such as literacy rate and the enrolment rates in primary, secondary and tertiary education. Here India ranks 107th out of 146, and its score has marginally worsened since last year in 2021, India was ranked 114 out of 156. Health and Survival includes sex ratio at birth (in %) and healthy life expectancy (in years). In this metric, India is ranked last (146) among all the countries. Its score has not changed from 2021 when it was ranked 155th out of 156countries. The country is the worst performer in the world in the “health and survival” sub-index in which it is ranked 146. India ranks poorly among its neighbours and is behind Bangladesh (71), Nepal (96), Sri Lanka (110), Maldives (117) and Bhutan (126). Only the performance of Iran (143), Pakistan (145) and Afghanistan (146) was worse than India in South Asia. In 2021, India ranked 140 out of 156 nations.
2. Economic Participation and Opportunity dimension of the WEF report captures gaps in labour force participation rate, wage equality, earned income, and gaps in women’s accessing formal labour channels such as professional work, technical work and work in senior and managerial roles. It includes percentage of women who are part of the labour force, wage equality for similar work, earned income etc. Here, too, India ranks a lowly 143 out of the 146 countries in contention even though its score has improved over 2021. India’s score is much lower than the global average. According to the World Bank, this poor performance is largely due to a very low participation of Indian women in the work force. From 30.7 per cent in 2006, the proportion of working age women taking part in paid work dropped to 19.2 per cent in 2021. This is further substantiated by a report by NINEby9 which brings forth that It would take over 195 years to close the gender gap in Indian organisations as women are not properly represented in the labour force. Economic participation of women is 22.3% in the Indian corporate world and the pay gap ratio is 19%. It reveals that 65% of women expect serious repercussions for their professional progression.

1. Nature of Employment

It is understood that over 90% of Indian women in paid jobs are concentrated in the informal sector, one that is characterised by a lack of labour protection in the form of social security, job security, health benefits, paid leaves, sick leaves, or any form of income regularity. Women work as domestic help, street vendors, home-based workers, or in textile and manufacturing industries on a daily wage or a piece-rate basis. In the present times, where there are differing statistics on employment in the unorganised sector of India - 93 percent as per the Economic Survey of India 2018-19 and 85 percent as per Niti Aayog Strategy document (Mohanty, 2019) - it is understood that 95 percent of those employed in it are women (Delloite, 2019). Further, it is found that sexual harassment of women in the unorganised sector is rampant and widespread (Oxfam 2012; CWDS, 2010; Haq,2021)

Part Four - Violence against Women and their Participation in Paid Work

A paper brings forth that there is no effect of sexual assaults reported in the media on male labor supply. There is no consistent and strong relationship between interpersonal violence and male labor supply. However, media reports of sexual assaults are likely to generate feelings of anxiety and fear among women. It is possible that fear leads women to magnify the subjective probability that they might become a victim, despite little to no change in the objective probability of this happening. Such fear could then explain why women become less likely to work outside their homes in response to higher media reports of sexual assaults in the previous time period. e labor force participation of urban women in India is reduced following increased media reporting of sexual assaults in one’s local area. The results highlight the importance of addressing safety concerns of women in India. The paper recommends special transport facilities for women, self defence training for women and the strengthening of a policing and legal framework that protects women from sexual assaults. Another paper highlights that perception of crime against women deters women work force participation in India. Social stigma attached to rape plays a crucial role in the deterrence. Findings suggest that women are less likely to work away from home in regions where the perceived threat of sexual harassment against girls is higher.

Summing up the Issue

Overall it can be said that while improvements exist in some indicators women are lagging behind in progress. While the goal of equality between men and women remains distant it is unreasonable to expect neutrality only with respect to laws.

Also, there is a data gap with regards to sexual harassment at workplace faced by men. It is only when reliable and triangulated data becomes available from cross sections of Indian society there can be an argument in favor of amending the 2013 Act to make the 2013 gender neutral.

Currently, it can be conclusively stated that it was required and still needed that a law protecting women from the peril had to be enacted and enforced. Hence, existence of law on workplace sexual harassment of women is justified.

Postscript

The Transgender Persons (Protection of Rights) Act, 2019 was enforced on 10th January 2020. Section 9 of the Act states that no establishment shall discriminate against any transgender person in any matter relating to employment including but not limited to recruitment, promotion and other related issues. Further Section 10 states that every establishment shall ensure compliance with the provisions of this Act and provide such facilities to transgender persons as may be prescribed. Additionally, complaints relating to violation of the provisions of the Act are to be dealt by a complaint officer designated by every establishment. The Act being a Criminal legislation prescribes imprisonment and fine as per Section 18 if a person harms or injures or endangers life, safety, health or wellbeing whether mental or physical of a transgender person or tends to do acts including causing physical abuse, sexual abuse, verbal abuse, emotional abuse and economic abuse. In the presence of separate Act for transgender persons, it can be said that to some extent the issue of sexual abuse faced by transgender persons can be addressed provided the Act is implemented effectively.

Also, most organisations in the private sector have gender neutral anti sexual harassment policies which allow all persons coming in contact with the workplace to complain of sexual harassment. Those organisations who might not be having a gender neutral anti sexual harassment policy do have a code of conduct which enlists sexual harassment as a misconduct which allows complaints irrespective of gender and biological identity of the person.

References

Lawyers Collective. 2002. ‘Sexual Harassment at Workplace – India Study Report.’ International Labour Organisation. New Delhi.

Poonacha Veena and Raymond Neeta. 2002. ‘Prevention of Sexual Harassment in Workplaces / Educational Institutions. An Action Research Project Conducted in Sir J. J. Hospital and Grant Medical College’. Research Centre for Women’s Studies and India Centre for Human Rights and Law. Mumbai.

Poonacha Veena and Raymond Neeta. 2004. ‘Prevention of Sexual Harassment in Workplaces / Educational Institutions. An Action Research Project Conducted in Veermata Jijabai Techinical Institution. Research Centre for Women’s Studies and India Centre for Human Rights and Law’. Mumbai.

Pinglay, Prachi. 2012. ‘Majority of sexual harassment cases at workplaces go unreported’. Hindustan Times. Mumbai. 13thMarch. (http://www.hindustantimes.com/India-news/Mumbai/Majority-of-sexual-harassment-cases-at-workplaces-go-unreported/Article1-824476.aspx) (Accessed on 14th March 2012).

Saheli. 1998. ‘Another Occupational Hazard: Sexual Harassment and the Working Woman’. Delhi.

Sakshi. 2000. ‘Study on Sexual Harassment at Workplace’. Delhi.

Sanhita.2001. ‘Politics of Silence’. Kolkata.

Sophia College (Department of Sociology) and India Centre for Human Rights and Law. 2003. ‘Sexual Harassment of Women at Workplace: A Study, Women and Health’, Research Paper Series, 1. Mumbai: Sophia College.

Author has a Doctorate Degree in Social Sciences