The criminals are more likely to target women because they are one of the most vulnerable groups. Even in the workplace, women face numerous dangers. Women’s sexual harassment is a widespread problem in the public and private sectors, as well as in non-profit organisations. When a woman is subjected to sexual harassment in the workplace, it can take many forms, including but not limited to unwanted and unwelcome physical contact and advances, requests or demands for sexual favours, sexually explicit remarks and images displayed in the workplace, and other uninvited physical, verbal, or nonverbal sexual behaviour. As a rule, they get away with it. Additionally, India has enacted a law to protect women from all forms of sexual harassment at their workplaces in both the public and private sectors, as well as a number of other unique legislative provisions for women’s protection. All private and unorganised sectors have been told by the Ministry of Women and Child Development to submit an annual report to the appropriate authorities detailing any incidents of harassment or discrimination against women in the workplace. For us, the problem is that laws have been implemented but not adequately executed. Aiming at some implications for the government, NGOs, and all other stakeholders with a stake in women’s safety in the workplace, this study seeks to raise awareness about the pervasiveness of sexual harassment and assault at work, particularly in the private (unorganised) sector. Deviant theory is used in this research to understand present legislation and the perceptions of victims.
The problem of sexual harassment affects all women in this world regardless of their profession but the legal system fails to protect them because it is asleep. Moreover, women who live in countries with developed legal systems may also face problems such as being dismissed from their jobs, being ridiculed, social pressure or promises of promotion, etc. that leave them speechless and unable to protest. Male dominance over women is the goal of sexual harassment, which serves to remind women that they are weaker than men. The patriarchal value of violence against women operates in society given that violence against women is only a demonstration of patriarchal values. Not surprisingly, one in three working women experience sexual harassment. The Indian Constitution gives the right to choose any profession both to men and women but in practical situation women are subject to discrimination. There are laws made for the safety and security of women, but do you really think it is effective enough to protect women? Even in the present era, women are not secure enough to work outside. The economic liberalization has provided lot of career opportunities to women for their independence but they face many problems such as being verbally, physically, mentally and sexually harassed by their employer, colleagues, managers and other staff members. Sexual harassment is unwelcomed sexual advances, which includes touches, looks, jokes and pressure to have sex. CEDAW, which was formally adopted in 1979 by the UN General Assembly. is a UN convention that prohibits all forms of discrimination against women. An international bill of human rights for women adopted by India’s government was aimed at encouraging equality between men and women in society, politics, economics, culture, and the civil rights of citizens. According to the report, the standard of equality of rights is violated by inequity and attacks on women’s dignity. With the beginning of industrialization, modernization, economic development, and globalization there has obviously been a steady increase in the employment rate of women in the organized sector on a vast scale and in many folds. In addition, it has led to many deplorable practices such as physical and mental harassment and even sexual harassment in the workplace, even in government and unorganized sectors.
India’s wider cultural context of sexual harassment and violence surrounding work must be understood to fully comprehend workplace sexual harassment. Over 400,000 crimes committed against women were reported in 2019 – a steady increase over the years. The murder and gang rape of a young woman in Delhi in 2012 have brought sexual harassment and violence into the public eye but the crime rate has continued to rise, but convictions remain low. Many recent cases that have attracted media attention involve victims from marginalized backgrounds, which is closely tied to wider power dynamics related to caste and religion. Many workers in India experience workplace sexual harassment, but it is rarely reported due to a variety of factors. According to the National Crime Records Bureau, 505 cases of “insulting the modesty of women at work or in office premises” were reported in 2019. However, there are likely to be many more incidents of this nature. Few organizations have the necessary policies and structures to allow thorough investigation and collection of data on workplace sexual harassment in India, even where committees are formed to investigate and collect data on the subject. In addition, nearly 90% of working Indian population is in the informal economy, with no contracts, paid leave, or health benefits. Sexual harassment might be especially common among workers in the informal economy, since they lack formalised resources to report incidents and seek redress.
Theory relating to Sexual Harassment at Workplace The victimology theory which relates with the victim of sexual harassment at workplace is ‘deviant theory’. The theory explains that an individual who spends more time in dangerous places is more likely to be victimized by crime according to the deviant place theory. As their exposure to crime grows, their chances of being victimized increase. According to this theory, victims have no role to play in encouraging crime but are still prone to becoming victims due to their location in a socially disorganized high-crime neighborhood. As in the crime of sexual harassment at workplace also the role of the victim is zero percent because here the women go for the work and duty and which is necessary for them to be independent so here the offender if commit the act and cause harm to the victim then it does not only shatter the victim physically but mentally and emotionally also. Residents with high crime rates could be at the most risk of coming into contact with offenders, even if they do not engage in risky behavior or lead a dangerous lifestyle. Social and economic inequality tends to make minorities more vulnerable to victimization. Minorities, as compared to Caucasian neighbors, tend to live in low-income areas with high crime rates, and they are unable to leave areas with high crime rates.
In addition using this theory of victimology, safety measures taken in dangerous areas are of little use because the area’s demographics and not the victims’ lifestyle choices increase victimization. A person living in a deviant area has no other choice than moving to an area where there are no deviants and danger with a lower crime rate and less deviancy.
Framework for Existing Laws on Sexual Harassment at Workplace in India
In the workplace, sexual harassment is expected to destroy the rights of women to equality, life and liberty. This creates a culture of lack of confidence and aggressive work environments, which discourages women from participating fully in the job market, thus affecting their social and economic empowerment as well as their desire for complete growth. As a result, the government drafts the Workplace Sexual Harassment (Prevention, Prohibition and Redressal) Act 2013. It was the Supreme Court, in Vishaka v The State of Rajasthan, which deemed such legislation necessary before it was implemented for working women. Since there was no law governing sexual harassment at that time, the Supreme Court implemented procedures for workplaces to follow under the authority of Article 32 of the Constitution.
In addition to women’s rights, the Protection of Human Rights Act, 1993 should also be taken into consideration since women’s rights are human rights as well. However, outside of these preparations from these acts, sexual harassment victims who may be able to approach civil courts for tortuous acts such as mental distress, physical harassment, depression, or loss of employment can also approach these courts.
In India, sexual harassment is a violation of article 14 of the constitution and article 21 of the constitution, which guarantees a woman’s rights to gender equality and a life of dignity. The Indian Penal Code and other legislation, like in IPC, for example, provide protection against women’s sexual harassments, despite there being no specific law to curb sexual harassment at work.
Acts and songs that are obscene in public places are covered by Section 294 of the Indian Penal Code. A woman can be assaulted or criminally compelled by her husband or partner under Section 354.2 Speaking or making gestures which outrage a woman’s modesty are prohibited under Section 510. The legislature has also passed another law protecting women’s interests, namely the Indecent Representation of Women (Prohibition) Act (1986). In cases of sexual harassment this act hasn’t been used, but there are two other ways it can be us:
i) When someone harasses another by showing indecent images of women in books, photographs, paintings, films, etc., they will be sentenced to minimum two years in prison.
ii) If pornography is shown on television, companies are penalized under section 7 of this act.
In addition to pursuing tortuous actions in civil court, harassed women may also file a lawsuit for mental anguish, physical harassment, loss of income in employment, etc. There are two types of sexual harassment, one of which is quid pro quo sexual harassment, which is when a woman is sexually harassed for sexual benefits in exchange for demotion or being required to work under difficult conditions.
As another example, the term ‘hostile working environment’ is a legal requirement imposed on employers to provide positive working environments for women workers, which includes banning sexist graffiti, pornographic comments and brushes against women employees.
It is categorised several types of sexual harassment, such as verbal, non-verbal and physical, in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Under Article 14 and 15, and 19(1)(g) and 214 , the Supreme Court has incorporated the fundamental ideology of protecting human rights, as well as the requirements of the Convention to Eliminate Discrimination Against Women (CEDAW).
Supreme Court guidelines were to be cherished as the law confirmed under Article 141 of the Constitution. Additionally, sexual harassment is a violation of the Indian constitution articles 14 and 21 on fundamental rights of women. Now we have a distinct law for the restriction of sexual harassment of women during work hours which has recently been revised. In addition to the Indian Penal Code, which prohibits sexual harassment, there are other acts prohibiting it as well, including the Industrial Dispute Act, 1947 and the Factories Act, 1948. Similarly, the Protection of Human Rights Act, 1993 should also be regarded as a measure, since women’s rights are also human rights and should be protected at all costs. Furthermore, the aforementioned Acts do not provide any preparations for sexual harassment victims to approach a civil court for tortuous actions like mental distress, physical harassment, depression, and loss of employment.
Case laws of Sexual Harassment Law in India
As a result of the lawsuits that have come before Indian courts, women are registering an increasing number of complaints as compared to before:
I) Apparel Export Corporation Council v AK Chopra: Sexual harassment was declared gender discrimination against women by the Supreme Court in this case, along with any act or attempt of molestation by a superior being sexual harassment.
II) Mrs. Rupan Deol Bajaj v Kanwar Pal Singh Gill: A woman’s private or public life has been redefined by this case in such a way that any harassment or invasion of privacy will be considered an offense.
III) Vishaka & other v. State of Rajasthan & others: Following are the guidelines laid out by the Supreme Court which recognized her injury not only as a private injury, the law now prohibits sexual harassment as a distinct category of behavior. Sexual harassment is now a violation of her fundamental rights.
Laws relating to Sexual Harassment at Workplace in the United State
Sexual assault is defined by the U.S. Department of Justice, Office on Violence Against Women (OVW), as “any act prohibited by federal, tribal or state law that is not consented to by the victim.” Sexual harassment is defined by law as a form of employment discrimination, in addition to sexual assault, which is a criminal offense.
Sexual harassment is defined by the Equal Employment Opportunities Commission (EEOC) as “unwelcome sexual advances, requests for sexual favors, and harassment of another individual’s sexual orientation when such conduct affects an individual in any way.” A workplace harassment claim must prove that its effects are severe and pervasive, and that it violates the law. Harassments of this nature may be verbal, visual, nonverbal, or physical in nature.
According to Title VII of the Civil Rights Act of 1964, sexual harassment is illegal sex discrimination; EEOC enforces these laws; The EEOC or a cooperating state agency must be notified of an allegation of sexual harassment under Title VII before one can file a lawsuit. Over the past year, the EEOC received 26,978 allegations of workplace harassment, most of which were sex-based, while a quarter of those (6,696) were rooted in sexual harassment. One in 17 sexual harassment complaints filed with the EEOC also alleged racial discrimination against Black women, more so than any other racial or ethnic group (15.3 charges per 100,000 workers). Only about one in ten people who are harassed report the incidents to the EEOC— let alone file an official complaint—because they lack accessible complaint processes, feel embarassed, or are afraid of retaliation. In FY 2017 alone, 71 percent of charges included complaints of retaliation, according to EEOC data.
Guidelines for Combating Workplace Sexual Harassment
To make workplaces safer for workers and achieve productivity increases, the provision of resources, training, and the development of new tools is crucial.
Sexual harassment and assault in the workplace can be addressed with the following interventions, according to the EEOC:
i) Assessing the risk factors of sexual harassment and assault in your organization and conducting climate surveys to determine how widespread the problem is within your organization would provide insight into your company’s harassment practices.
ii) A comprehensive anti-harassment policy should be adopted and maintained, the policy should be communicated regularly to employees, multifaceted reporting procedures should be introduced, and reporting systems should be reviewed for functionality.
iii) Disciplining harassers is something that employers should do quickly, consistently, and proportionately.
iv) Employers should train supervisors and middle management on how to respond appropriately to instances of sexual harassment.
v) Bystander intervention and workplace civility training should be provided by employers.
vi) It is important that labor unions adhere to the same standards as employers regarding their own policies and reporting systems.
vii) By conducting additional research through agencies such as U.S. Bureau of Labor Statistics, U.S. Census Bureau, and U.S. Justice Department on sexual harassment and assault, the federal government should develop and conduct new surveys or add questions to existing surveys on these issues. viii) The EEOC Respectful Workplace Training and bystander intervention trainings are both promising examples of resources and trainings that are available to those wishing to prevent sexual harassment and assault at work.
An analysis of sexually harassing behaviours
A tripartite model11 According to the widely accepted tripartite definition of Sexual Harassment, there are three behaviors to be considered: gender harassment, unwanted sexual attention, and sexual coercion.
i) Gender Harassment: Sexual harassment can be defined as insulting, hostile, and degrading verbal and nonverbal behavior that targets or is directed at one’s gender or gender identity, or their sexual orientation. Gender harassment includes offensive sexual gestures, flashing, and the display of sexual images or objects at work, as well as sending sexual images to a coworker or peer via email or text.
ii) Unwanted Sexual Attention: It include making suggestive remarks about a person’s body, leering and catcalling, propagating sexual rumors about them, and sending them sexualized images. It is also true to block someone’s path or follow them in a sexual way; to make unwanted, unwelcome, and unrecognized sexual advances, such as unwanted kisses, dates, or sex; and to make attempts or complete rapes.
iii) Sexual Coercion: Legally referred to as quid pro quo Sexual Harassment. If you receive sexual favors or contacts, you will be offered a promotion, a job, favorable working conditions, assistance, or a good performance evaluation.
Critical Analysis of Sexual Harassment at Workplace
There is a significant difference between sexual assault and sexual harassment, even though they are often used interchangeably. Generally speaking, sexual assault is considered to be any form of sexual behavior without the consent of the victim. The term sexual harassment encompasses two types of unpermissible behavior. Essentially, “quid pro quo” is a kind of sexual coercion in which a promise of favouritism or disadvantage is implied or explicit in exchange for sexual cooperation within the workplace. Bollywood’s “Casting Couch” is a classic example of sexual coercion and ‘quid pro quo’. In addition, hostile work environments or sexual harassment that affects the work environment directly or indirectly, including unwanted touching, gender harassment, and other unwanted behavior.
Sexual harassment in India did not have a legal definition until 1997, and it was primarily governed by Sections 354 and 509 of the Indian Penal Code. Presently, the Indian Penal Code, 1860, the Information Technology Act, 2002, the Indecent Representation of Women Act, 1986, and the Protection of Children from Sexual Offenses Act, 2012 constitute the laws that apply to sexual harassment.
The Sexual Harassment At Workplace Act 2013 exhaustive definitions of key terminologies is one of its most prominent features. As an example, the Act defines Workplace as “any place visited by the employee as a result of or during employment” in both organized and unorganized sectors such as NGOs, cooperative societies, educational institutions, etc. In addition, the Delhi HC has aptly adopted a more expansive view and held that in today’s world, the term ‘workplace’ cannot only be construed as a physical office space and has laid down the factors to be considered for such as proximity from the place of employment to the workplace. By law, the employer must provide a safe working environment for its employees and for anyone who comes into contact with them at work. In addition to displaying the penal consequences of sexual harassment and organizing workshops and awareness programs, employers should take legal action against the perpetrator under the IPC and any other applicable law.
Although sexual harassment laws are generally unambiguous, the law itself is not gender neutral, i.e., currently only women aggrieved by sexual harassment can file a complaint. A complaint of sexual harassment at the workplace may not be filed by men or transgender. Furthermore, the phenomenon of ‘Apprehension of Bias’ remains highly controversial since it is very difficult to establish the likelihood of real bias through evidence and it remains highly subjective. Following the adoption of laws such as The Transgender Persons (Protection of Rights) Act, 2019, India’s legislative branch must ensure sexual harassment laws are comprehensive, gender-neutral, and progressive in the 21st century. Allegations of sexual harassment must be filed within three months of the occurrence and can be extended up to six months when necessary. In light of the fact that sexual harassment is a traumatizing event in the life of a victim, the six-month time limit for lodging a complaint must also be extended a little further for the victim to recover from the trauma. This from my point of view is a concern. In addition, if the allegation of sexual harassment is proven, the employer may have no obligation to compensate the complainant or penalize the employee. By not defining employer liability for workplace sexual harassment, the 2013 Act leaves the provisions in the stage of mere compliance without any real incentive for the employer to make sure they are effective. By avoiding this liability, the provision of a sexual harassment free workplace becomes merely lip service to the mighty objectives the law was intended to attain. To reduce SH, organizations need to change their organizational climates and contextual norms that enable sexual harassment. Clarifying anti-harassment policies and procedures is one way to change the normative contexts that encourage SH. Sexual harassment policies provide a check on those inclined to harass and give victims avenues for redress. Employers who proactively develop, communicate, and enforce workplace safety policies have the lowest rates of accidents. In addition to increasing accountability and knowledge of organizational policies, sexual harassment training helps reduce victim blaming and minimize the effects of sexual harassment.
No matter what their position or capacity, everyone should respect the laws and even contribute to protecting those who have been the victims of sexual harassment. Various research and studies done by experts have shown that people can curb crime by the following methods in addition to the above-mentioned points:
i) In every organization, there ought to be a Redressal committee which handles employee complaints efficiently and promptly. No one should be hesitant to file a complaint when he/she encounters any problem.
ii) The committee is responsible for resolving any sexual harassment cases with full secrecy so that no one is bothered unnecessarily, and everyone is encouraged to bring any allegations to its attention immediately without fear,
iii) It is necessary to conduct regular orientation sessions to ensure that all employees are aware of the consequences of sexual harassment,
iv) To ensure that all female employees feel a sense of security and belonging in the workplace, the male employees should ensure that they are not scared of going to work,
v) Employers should take responsibility for all actions and ensure that such actions do not take place, as this will undermine productivity and the work of the organization.
The status of women in society is deemed important in today’s era when women empowerment is discussed. Although the male-dominated society may find it difficult to swallow, given the current situation, it is essential that people stop harassment of women. This research paper describes the circumstances that led to sexual harassment occurring in India and how the law came into force for the protection of the victims.
In India, sexual harassment continues to be a problem, resulting in victims suffering a lot of discrimination due to which the state has been unable to adequately protect the rights of women and provide sufficient redress for the victims. It is necessary that authorities take the crime into account for the prevention and eradication of it. To inform the public and private sectors about Supreme Court guidelines and supervising duties, social activists, academicians, and media organizations are essential. In the event of any victims found in the Criminal Justice System, they must be provided with appropriate medical, psychosocial, financial and legal support. This will avoid secondary victimization.
Consequently, we can say that even though sexual harassment is on the rise because of some loopholes in the laws, we need to come up with a way to stop it and reduce the increase in crime based on the principle of rights and safety that underpins all laws, such acts are against the constitution.