40 to 50 per cent of women in EU countries
experience unwanted sexual advances,
physical contact or other forms of sexual
harassment at work – Statistics of UN
What is Sexual Harassment:
Sexual harassment is quite subjective. What is normal for one person could be the complete opposite for another. Cultural, educational, regional differences play an important role in the perception of individual acts. However, explaining sexual harassment in short would mean bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors.
It is unlawful to harass a person (an applicant
or employee) because of that person’s sex –EEOC
Types of Sexual Harassment:
Generally speaking, there are two types of sexual harassment: “quid pro quo” and ‘hostile environment’:
Unwelcome behavior is the critical word. Unwelcome doesn’t mean “involuntary.” A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances.
International Legal Framework Against Sexual Harassment
United Nations: General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women defines violence against women as including sexual harassment, which is prohibited at work, in educational institutions, and elsewhere (Art. 2(b)), and encourages the development of penal, civil or other administrative sanctions, as well as preventative approaches to eliminate violence against women (Art. 4(d-f)).
There is one universal truth, applicable to all
countries, cultures and communities: violence
against women is never acceptable, never
excusable, never tolerable – Ban Ki-Moon (UN Secretary-General)
International Labour Organization (ILO): ILO Committee of experts on the application of conventions and recommendations has confirmed that sexual harassment is a form of sex discrimination covered by the Discrimination (Employment and Occupation) Convention (No. 111) of 1958. ILO’s Indigenous and Tribal Peoples Convention (No. 169) also specifically prohibits sexual harassment in the workplace.
African Union: Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa obligates State Parties to take measures to:
- Eliminate all forms of discrimination against women and guarantee equal opportunity and access in the sphere of education and training;
- Protect women from all forms of abuse (including sexual harassment);
- Ensure transparency in recruitment, promotion and dismissal of women, and combat and punish sexual harassment in education and the workplace. (See: Articles 12-13)
Europe: The Charter of Fundamental Rights of the European Union specifically enshrines the right to be free from discrimination on the basis of sex, and Article 23 obligates states to ensure equality between men and women in all areas. This principle has been further elaborated through several directives dealing with sexual harassment, including Directive 2006/54/EC related to equal opportunities in employment and the Directive 2004/113/EC related to equal treatment in access to goods and services.
Organization of American States: The Organization of American States treats sexual harassment as an issue of violence against women, instead of a discrimination issue. Accordingly, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Belem do Para) affirms the right of women to be free from violence, including sexual harassment in employment or any other context, and requires states to impose penalties and enact legal provisions to protect women from harassment and other forms of violence. Article 2 states that sexual harassment in the workplace, educational setting, health facilities, or any other place constitutes violence against women.
United States: As defined by the EEOC, “It is unlawful to harass a person (an applicant or employee) because of that person’s sex.” Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
United Kingdom: The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986. It states that harassment occurs where there is unwanted conduct on the ground of a person’s sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Indian Law Perspective on Sexual Harassment
The Prevention of Workplace Sexual Harassment Act (“Act“) and the Prevention of Workplace Sexual Harassment Rules (“Rules“) have been enacted 16 years after the Supreme Court of India’s landmark judgement in Vishaka and others v. State of Rajasthan (“Vishaka Judgement”). The Supreme Court, in the Vishaka Judgment, laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women.
Penal Consequences for Non-compliance under the Act:
Non-compliance with the provision of the Act has significant consequences – an employer who fails to constitute an ICC as per the Sexual Harassment Act will be liable for a monetary penalty of up to INR 50,000. Repeated non-compliance of the provision can result in the punishment being doubled or even cancellation of the license by the government or local authority to carry on business.
Similarly, failure to implement the recommendations of the ICC or the Local Committee, or failure to include appropriate details pertaining to filing and disposal of sexual harassment cases carries the same penalty.
Other Indian Laws pertaining to Sexual Harassment at workplace include (i) the Industrial Employment (Standing Orders) Act 1946 & the Industrial Employment (Standing Orders) Central Rules, 1996, which clearly illustrates a list of acts constituting ‘misconduct’ and specifically includes sexual harassment; and (ii) Indian Penal Code, 1860 section 354 & 509.
What Employers should do to comply with the Act:
Jay Pandey (https://in.linkedin.com/in/advjay)
Author is a Legal Professional with 10+ years of experience in Contracts, Employment Law, Litigation and Compliance. If you have any queries or concerns about this publication or the topic, please don’t hesitate in reaching out to the author at firstname.lastname@example.org
Disclaimer: The views expressed in this article or blog are personal opinions of the author and should not be considered as legal or professional advice.