A work in progress

Despite advances including the promulgation of a progressive piece of legislation to make workplaces safe for women, much more needs to be done whether in boardrooms or on construction sites

Every once in a while, the news is about the spectacular fall of a person in power over charges of sexual harassment. No one will deny that it has been the dirty little secret of workplaces, hidden and shielded with every PR trick available. Therefore, harassment cases being reported and followed by public outrage is in itself a welcome change. The Harvey Weinstein case is the latest in this long list. Those of us who follow it know the plot to a familiar one — closer home we have had other such illustrious — powerful men brought down due to their conduct at workplace.

Sexual harassment at workplace was originally perceived as isolated incidents of flirtation at the workplace or eve teasing as it was referred to in the Indian context. The conceptual understanding around the issue was lacking, which prevented women from taking up the grievances of sexual harassment at workplace with their employers.  The recognition that sexual harassment is a form of discrimination based on the sex of the person came much later and not until the 1970s under the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination. 

The  US’s Supreme Court, for the first time, held that sexual harassment at workplace is a sex-based discrimination and, hence, violates Title VII. Then came the Convention on Elimination of All forms of Discrimination Against Women (CEDAW), which identified sexual harassment as a form of violence against women and called for its elimination. CEDAW sought to define sexual harassment to include such unwelcome sexually determined  behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.

In 1989, the CEDAW committee recommended that signatory states should include in their reports information on violence and on measures introduced to deal with it. The full implementation of the convention required signatory states to take positive measures to eliminate all forms of violence against women.

India was a signatory to the CEDAW  and this paved the way for the historical verdict in ‘Vishaka case’, wherein the Supreme Court of India in 1997 recognized sexual harassment as a human right violation and laid down formal guidelines for dealing with sexual harassment at the workplace. This judgement for the first time emphasized on prevention and attitudinal change rather than mere procedural change. It 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.

This judgement remained the law of the land for 16 years, however, the implementation of the same by the private and public sector was more of an exception than a norm. After16 years, in the aftermath of Nirbhaya agitation and  following the Justice Verma Committee report, the Legislature enacted  the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (The Act), which was made effective on April 23, 2013, by way of publication in the Gazette of India.

This Act makes employers responsible and accountable for the prevention, prohibition as well redressal of the problem of sexual harassment at work place. Around the same time, the Criminal Law (Amendment) Act, 2013 came into force which introduced section 354A and brought sexual harassment within the ambit of the Indian Penal Code, making it an offence punishable with imprisonment up to three years.

The definition of sexual harassment in the Act defined under S2 (o) is in line with the apex court’s definition in the Vishaka judgement and includes any unwelcome sexually determined behaviour (whether directly or by implication) such as physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical verbal or non-verbal conduct of sexual nature.

As per the Act, presence or occurrence of circumstances of implied or explicit promise of preferential treatment in employment; threat of detrimental treatment in employment; threat about present or future employment; interference with work or creating an intimidating or offensive or hostile work environment; or humiliating treatment likely to affect the lady employee’s health or safety may amount to sexual harassment.

 The ambit of the Act is very wide and is applicable to the organized sector as well as the unorganized sector, including domestic workers. The Act requires an employer to set up an ‘Internal Complaints Committee’ (ICC) at each office or branch, of an organization employing at least 10 employees.

The Government is in turn required to set up a Local Complaints Committees at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer or if the complaint is made by the domestic worker against her employer. The Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time-bound manner. The definition of ‘workplace’ includes the extended workplace as a place visited by an employee during the course of employment or for reasons arising out of employment.

Similarly, the definition of ‘employee’ under the Act covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied. The Act itself follows the spirit of the Vishaka judgement with an emphasis on prevention and attitudinal shift. Thus, it is the mandate of the ICC to ensure that regular training on sensitization of the workforce is carried out.

Following the Act, there have been some welcome changes in workplaces. Most of corporate India has taken this seriously and some have led the way for gender agnostic policies to address harassment at workplace. The aspect that needs focus is the definition of an aggrieved woman under Section 2(a) wherein the Act lays down that an aggrieved woman means  in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent….”.

This would logically mean that a workplace, any workplace, is responsible for the security of the women who visit such workplaces. By extension, therefore, privately owned public spaces such as malls, hotels and other entertainment centers are also responsible. This is why Tripadvisor’s recent addition of a security tags to inform users of hotels where sexual assaults took place are a welcome move.

All of it takes us back to Harvey Weinstein. His modus operandi, included hotels, begs the question as to the role of the management of such public spaces. If health and safety are areas of concerns for such management then do the health and safety of their women customers not matter? Does it need a Tripadvisor or other such forums to rap their knuckles before they take notice of what hazards women face in these spaces? Is the retail and hospitality sector even willing to acknowledge its responsibility towards its customers?

If sexual harassment is a safety hazard then like all hazards it calls for a system of emergency first responders. The Act lays an emphasis on prevention and attitudinal shifts and its implementation in true spirit would require pro-active measures.  Failing which, public opinion and public action will take its own course — the first casualty of such a course will be brand equity of the organization, mall, hotel etc. It’s time to wake up and smell the coffee!

(The writers are Partners at TRS Law Offices)