Studies cite fear of retaliation in the form of loss of income, dismissal from employment, blocking of promotions, defamation, threat from a harasser and other such reasons as some of the key reasons for not reporting sexual harassment at the workplace (Chaudhuri, 2006; Centre for Transforming India, 2010; Yugantar, 2003). It is evident that women continue to bear the sexual harassment in silence due fear of re-victimisation from the employer and the harasser.
To tackle this issue of creation of a hostile work environment, the Vishakha guidelines (1997) directed employers to provide appropriate work conditions for all women employees. In the current law, Section 3 (2) introduces the concept of hostile work environment by linking it to the acts of sexual harassment, thus making it a part of the definition of sexual harassment. However, the concept of a hostile work environment within the Act remains limited to the one to one acts of sexual harassment. It fails to establish a connection with the overall environment within the organisation from the prevention perspective. As a result of this, liability on the employer to build a safe working environment can be severely hampered. Here it needs to be understood that, sexually hostile working conditions can be both verbal and non-verbal which may not be directed towards one woman in particular. Yet they could create discomfort amongst many women at the workplace. Therefore, it is important that the understanding of a hostile work environment is expanded and extended to the work culture within the organisation from the prevention angle.
For this purpose, sub section (1) of Section 3 of the Act, which states that the employer needs to ensure that no woman is subjected to sexual harassment at workplace should be connected to the section that talks about hostile work environment. It is needed that both sections are read together to understand that onus is on the employer to provide a safe work environment for women to work without discomfort. It is therefore necessary that the organisation policy takes note of complaints which are general in nature. This can be done by the Human Resource department and the ICC by making use of both formal and informal sensing mechanisms such as surveys, group discussions, complaint box etc. with the help of which information about atmosphere prevailing within organisation can be gathered for prevention campaigns to be designed.
Reporting of complaints to the police by the employer- is it mandatory?
Chaudhuri (2008) says in reported cases of sexual harassment position of the harasser has distinct influence not only on the inquiry process but on recommendations of the complaints committee and subsequent action by the employer. She further states that higher the position of the harasser in the organisational hierarchy, more are the chances of him getting away on the pretext of his services being indispensible. In such situations where the internal mechanisms are discriminatory, it is critical that the complainant has an alternate avenue for registering her complaint. As per the Act, reporting to police is left to the choice of the complainant. However, Section 19 of the Act states that it is duty of the employer to provide assistance to the woman only if she chooses to report to the police or to register the complaint with the police, especially if the perpetrator is a third party.
Since the Act emphasises of creation of a safe working environment, the complainant cannot be left in a state of unawareness and ignorance. It is for the Human Resource Department and the ICC to respond proactively. It is their prerogative to take initiative in informing and educating the complainant about her rights. Members of the ICC can engage with the woman to make her aware about the plausible alternatives and help her make an informed choice to redress her complaint. Such interactions with the women can be specifically carried out with the help of the external member appointed with the ICC. It can be said that this part of the law needs broader interpretation in the interest of the complainants. It is needed that the employers recognise the rights of women as citizens and do not treat the complaint as a private matter to be dealt with internally. The policy on sexual harassment needs to clearly specify employer position, where procedure of educating the woman about various redress alternatives available to her within existing laws is clearly laid down.
How do we move ahead?
Social legislation is an active process of preventing or changing a wrong course in society with an aim to empower groups who are disadvantaged due to certain disenabling factors (Fairchild, 1944; Gangrade, 1978). In case of such legislations it is important to understand its background and evolution. It is crucial to understand that the current law on sexual harassment is an outcome of the long standing struggle by the women’s groups and organisations towards realisation of right to work with dignity. Any interpretation of the law devoid of a pro woman perspective can become counterproductive. It is required that the law is interpreted and understood within the framework of their fundamental rights guaranteed by the Constitution to women and the larger perspective of human rights of women. It is only after this perspective is instilled whew we can effectively implement the law. This will motivate women to complain of sexual harassment without having fear of retaliation and lead to the creation of workplaces free from sexual harassment. In conclusion, the newly enforced law on sexual harassment definitely has the potential to carry forward the process of shifting power relations at work initiated by the Vishakha guidelines (1997). This can happen provided the employers implement the Act from the standpoint of responsibility and not duty. As stated by Douglas (1993) only if we are seriously committed to ending the widespread violence and injustice in society at individual, collective, and institutional levels, will the structures and forces which maintain and reproduce a patriarchal system be contested and transformed.
Anagha has done her Masters in social work from the Tata Institute of Social Sciences and has over 7 years of experience working as a consultant on Prevention of Sexual Harassment (POSH) at Workplace. She is currently pursuing PhD from the same institute on the topic -Sexual Harassment of Women at Workplace, Socio-Legal Study of Organised Sector in Mumbai.
Picture Courtesy: North Country