This article is written by Shivali Srivastava, from National Law University, Odisha and edited by Neha Mallik. This article analyses the ethical restrictions that the complainants have to face in sexual harassment claims and the difficulties in implementing the laws at the grass root level.
Table of Contents
Introduction
Sexual harassment at work is a type of discrimination based on sex or gender that adversely impacts the working atmosphere, undermines workplace equality amongst employees, creates unfair employment practices and adversely impacts the self esteem and the overall welfare of workers. It causes psychological anxiety and tension for victims and if ignored, it can result in high costs for businesses through loss of productivity, low worker morale, absenteeism and staff turnover. It is characterized as any sexual activity affecting the privacy of women and men, which is considered unwelcome, improper, inappropriate and offensive to the recipient, causing an intimidating, aggressive, unstable or offensive working atmosphere.
An ethic can be described as ‘a theory of right or good conduct; a set of moral standards or values.’ The American society and its institutions have struggled over the past half century to establish frameworks and standards that discern and characterize ethical and immoral work behaviour. The centre of attention of the entire struggle has been the issue of sexual harassment.
Different types of sexual assaults
There are two forms of sexual assault cases as per the Equal Employment Opportunity Commission (EEOC) of US: ‘hostile work space’ and ‘quid pro quo.’
Quid pro quo stands for “this for that” or in return for something. “In this sense, it includes explicit or implicit requests for sexual or grotesque requests in return for any benefit or gain (e.g. advancement, salary hike) or to prevent any downside (e.g. demotion, expulsion or termination) in offices or any kind of workplaces.” Quid pro quo abuse is one which is executed by a person who is in a place of power and authority and the undue advantage of the same (e.g., manager or supervisor over a subordinate). A simple illustration of quid pro quo abuse would be a boss threatening to fire the employee in case he is refused of the sexual favours he had demanded.
Harassment of the hostile work atmosphere occurs when speech or action is so serious and omnipresent that it creates an unpleasant or humiliating atmosphere or circumstance that adversely affects the performance of a person’s job. Unlike quid pro quo harassment, anyone in the work setting can perpetrate this form of harassment including a colleague, boss, manager, client, customer or contractor. The conditions of such hostile work space is not simple to detect, because a statement or event may not be serious, an indecent conduct that is not sexual or obscene may occur, on the same hand there may occur lengthy stretches of offensive incidents between. Definitions of behavior that may create a hostile work atmosphere include unwanted contact, sexual jokes or remarks, repetitive date requests and a work space wherein, offensive scenes are created.
Ethical implications of harassment claims
There are a number of ethical issues of sexual harassment in the workplace that make it complicated:
The reasonable person standard test
The reasonable person standard test is an objective test based on a reasonable, fictitious person formed due to general perception when assessing alleged sexual harassment. While applying this test as in the scene of a sexual harassment case, the investiagtions would be based on whether a reasonable man in the plaintiff’s shoes would have categorised the actions in the same way the plaintiff did. The courts use the reasonable woman rule to acknowledge a disparity in the impact of inappropriate sexual contact between men and women. Since women have traditionally been more susceptible to rape and sexual assaults and abuse than men have, these courts agree that the fair woman’s viewpoint for assessing a sexual assault allegation is the right one.
Some of the greatest obstacles of coping with sexual misconduct is the fact that men and women can have vastly different opinions about what abuse constitutes. It is according to the Orthopedic Surgeons Association of America. The complexity here is that the application of subjective values to sexual harassment could make the law a mockery. Courts can apply the reasonable person test to deal with this in cases of harassment. For this test an ideal definition of what constitutes a fair man or woman with common beliefs is used to establish the level at which sexual assault is deemed to be a particular activity.
The responsibility of the employer
The employer is responsible for combating sexual assault at their place of employment. This includes imposing a strict code of ethics, modeling good behavior and likely introducing a whistleblower hotline to report unethical activity anonymously. However, there is variance in the state-base on what companies are expected to do in this respect. It is the duty and responsibility of each employer, irrespective of the size of their business, to build and maintain a work environment free of sexual harassment. Employers will reply immediately to any sexual assault allegations, ensuring suspected perpetrators are not fearful of reprisals or that their complaints are being dismissed or trivialized. The policy should be jointly developed with the trade union to ensure its effective implementation.
The hostile work surroundings
The wider meaning of workplace sexual harassment is that it may create a toxic work atmosphere for all workers. It can lead to loss of profitability, high turnover of employees, legal and financial consequences and harm to the brand. The other big form of sexual assault is sexual harassment in hostile work environments. It happens when a co-worker, boss, or third party makes unwelcome, frequent, and unwanted sexual advances, remarks, or requests in many cases. For certain cases of sexual assault in a hostile work atmosphere, one particular incident is not sufficient to verify in court. If it is abuse, it must be serious enough to cause damage to the employee by a single case. It will usually require only menaces or serious sexual harassment such as groping or touching.
Liability in hostile work environment
For hostile work conditions, the main question mark is deciding who is responsible for damages. To order for an employer to become responsible for two workers at the same level of this case of sexual assault, facts would prove that the employer knew or should reasonably have known about the abuse, but did nothing to stop it. When the harassor is a boss, however, that trumps the notion. The boss serves as an agent for the company, almost like a quid pro quo case, and as a result, the company is generally responsible by default. The client, however, is not necessarily responsible for the case, and can not be held liable. When an employer takes the required measures or actions to prevent repeated cases of sexual assault after the fact, this is a feasible protection for the employer. Since liability is often expensive in a sexual harassment situation, many industry experts believe that a constructive approach to this kind of sexual harassment is helpful and a requirement to a degree. Through implementing a sexual harassment policy or detailing one in an employee’s handbook, providing workplace training, and ensuring policy enforcement and awareness, employers may expect to eradicate, discourage, or (at the very least) lessen the likelihood of sexual assault in a hostile work environment.
For example, in the case of Dee v. Vintage Petroleum, Inc., a court found that the frequency of incidents had contributed to a hostile working climate. Not only did a boss shoot off an employee’s racial remarks but he also made a series of derogatory statements. According to one recorded argument, the court found that in a single case no such argument could be made, and that the comments were repetitive. This helped the worker to show that this had led to a hostile working atmosphere. It was later discovered that this work environment was created by the boss, so that the employee would not blow the whistle on his actions.
Status of laws related to sexual harassment
The landmark case of Vishaka v. State of Rajasthan laid the foundation for the women employees who have been harassed or sexually assaulted by their colleagues in any manner. It prohibited the discrimination in workplace as per Article 11(1) and Article 24 of the Indian Consitution. After which India’s first law directly addressing the problem of sexual abuse in the workplace was initiated; the Sexual Abuse of Women at Work (Prevention, Prohibition and Redress) Act, 2013 (POSH Act) was enacted in 2013 by the Ministry of Women and Child Development, India which also included the Vishakha guidelines. Subsequently, the government also notified the POSH Act rules entitled Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules). In the case of Prof. Dr. Saswat Samay Das v. Indian Institute of Technology & Ors, it was witnessed that the petitioner had filed a case for the illegal disposal of the sexual harassment case. The victim filed a case against the administration of Indian Institute of Technology Kharagpur which had set up an internal committee which dealt with the claim.
The year 2013 also saw the enactment of the 2013 Criminal Law (Amendment) Act (“Criminal Law Amendment Act”) which criminalized crimes such as sexual assault, stalking, and voyeurism. The POSH law was implemented with the intention of preventing and protecting women from sexual harassment in the workplace, and ensuring successful resolution of sexual harassment complaints. Although the law seeks to provide a clean, secure and dignified work environment for every worker, free from all types of harassment, proper enforcement of the law’s provisions remains a challenge.
It’s important to note that both of these laws are designed to punish the offender. The effects of the attack on the health of the victim are well known and the role of health professionals in reducing them is vital. However, the new role they are required to play (mandatory reporting) will most likely jeopardize their role in the therapy. Section 357C, CrPC after the CLA, 2013 states that all hospitals, private or public, run by central or state governments shall provide, free of charge, first aid or medical care to victims of any offense covered by sections 326A, 376, 376A, 376B, 376C, 376D or 376E of the Indian Penal Code ( IPC) and shall inform the police immediately of that incident.
Specific laws stated in Indian Penal Code
Section 354(A)- As per this Section, a man who commits some physical distress, whose advances involves unwanted and explicit sexual overtures; or who requests or asks for sexual favors; or who displays pornography against a woman’s will; or who makes sexually charged remarks is guilty of sexual harassment. (Punishment: Stringent imprisonment for a period of up to three years)
Section 209- This puts forth that indecent acts in every public place, singing grotesque songs to certain people’s irritation (punishment: imprisonment for up to 3 months or fine, or both).
Section 509- According to this section, usage of any word or gesturing intended to mock a woman’s modesty. (Punishment: 1-year jail sentence, or fine, or both.)
In the case of Pandurang v. State of Maharashtra and others, the court laid down that Intention may not be the sole determinant of the crime punishable under Section 354 IPC, but it may be conducted by an individual who assaults or applies criminal force against any woman, if he knows that such act is likely to affect the woman’s modesty. Knowledge and intent are fundamentally mental things, which can not be seen as physical objects as laid in the case of Vidhyadharan v. State of Kerala. Additionally, in the case of Santha v. State of Kerala, it was observed that the intent of offending a woman’s modesty is crucial in attracting the offence. Even if the entire prosecution case is admitted as such, it is highly unlikely how in this case the first accused, who is a woman, can be prosecuted for an offence under Section 509 I.P.C. Mere display of nude body is not enough to attract the mischief of Section 509 I.P.C. It must be proven that such an act was performed with the purpose of offending a woman’s modesty.
Obstacles encountered by the employees in a sexual harassment complaint at workplace
Sufficient evidence or proof
For most sexual assault cases, it is difficult to collect facts or provide witnesses because incidents of sexual harassment or accusations of sexual harassment are focused on actions that often occur in private. Often, in cases of sexual assault, sexual harassment laws do not prescribe the standard of proof and as such, this adds another layer of complexity in so far as it involves facts. Judicial precedents which state that in domestic enquiries the standard of proof should be that of predominance of probabilities and not of ‘beyond reasonable doubt.’ That means a fact can be said to be confirmed when a decision-making body either assumes that it exists or thinks that its presence is so likely that a reasonable individual will act on the presumption that it exists under the circumstances of a particular case.
Whether anonymity of a complaint is a prerequisite for initiating an inquiry
The sexual harassment laws mandate that the victim or any other person allowed by the victim make a written report of sexual assault. There is no provision under sexual harassment laws to consider allegations made anonymously or orally. There are also cases where complainants tend to remain anonymous in order to avoid being recognized or exposed to any social scrutiny and stigma. In these cases, instead of taking the view that there is no legal duty to take any action on the complaint, it is best that an employer make attempts to provide comfort to the anonymous complainant while maintaining confidentiality and encouraging such a person to come forward so that the correct procedure can be initiated.
Conclusion
We have made great strides towards defending women from sexual abuse in the workplace, with a codified statute in hand. Yet, we also have a long way to go until we come to an efficient and successful mechanism for coping with these circumstances. However, we are moving in the right direction and, with time, adherence to global best practices and judicial guidelines, we are sure that we can resolve those challenges.
References
- https://www.mondaq.com/india/discrimination-disability-sexual-harassment/868034/india39s-law-on-prevention-of-sexual-harassment-at-workplace
- https://corporate.cyrilamarchandblogs.com/2016/08/challenges-faced-employers-addressing-sexual-harassment-complaints/
- https://www.upcounsel.com/hostile-environment-sexual-harassment
- https://www.ilo.org/wcmsp5/groups/public/—asia/—ro-bangkok/—ilo-hanoi/documents/publication/wcms_421220.pdf
- https://law.jrank.org/pages/9668/Reasonable-Woman.html
- https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/typesofsexualharassment.aspx
- https://www.equalrights.org/issue/economic-workplace-equality/sexual-harassment/
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