Address at the Informative Workshop on Sexual Harassment at Workplace Bill – 2012: Procedure Compliance
By Ms Tine Staermose, Director, ILO DWT for South Asia and Country Office for India at the Informative Workshop on Sexual Harassment at Workplace Bill – 2012: Procedure Compliance - AIOE in collaboration with FICCI and supported with ILO, 19 April 2013
Namaskar,………ladies and gentlemen….
More than sixteen years ago, the Supreme Court of India came out with the “Vishaka” judgement - building very much on international law for the formulation of effective measures “to check the evil of sexual harassment of working women at all workplaces” in India. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 which is the focus of today’s deliberations, passed by the Rajya Sabha in February this year, - is a compliance to this judgement. We very much welcome this Bill and also that FICCI and AIOE is organising this technical discussion today to better understand how employers organisations will have to comply with this new Bill.
Over the last decade, the pervasiveness and the cost of sexual harassment, a manifestation of sex-based discrimination, has become a growing concern both at national and international levels.
The ILO defines sexual harassment as a sex-based behaviour that is unwelcome and offensive to its recipient. For sexual harassment to exist these two conditions must be present. Sexual harassment may take two forms:
Ladies and gentlemen, sexual harassment is a serious manifestation of sex discrimination at the workplace and a violation of human rights. It produces losers only. It undermines equality, calling into question the integrity, dignity and physical and psychological well-being of workers. At the same time, enterprises are being damaged by destroyed work relationships impacting negatively on productivity. The ILO has over the years been actively promoting measures addressing sexual harassment in the working environment. The role of the ILO in this respect has also been recognized by the Supreme Court of India. In another judgement, Apparel Export Promotion Council v. A. K. Chopra, the Courts notes that as early as in 1993 at the ILO seminar held in Manila, it was recognized that sexual harassment of woman at the work place was a form of “gender discrimination against women”. In the opinion of the Court, the contents of the fundamental rights guaranteed in the India Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment.
The ILO supervisory bodies have expressed that sexual harassment is a form of sex discrimination falling within the scope of ILO Discrimination Convention No. 111, ratified by India in 1960. In view of the gravity and serious repercussions of sexual harassment, the ILO has had the opportunity to review legislative and policy approaches tackling sexual harassment in many countries. The new Act in India can be held against the light of this rich source of comparative experiences. While the Act does have many valid and positive points, on awareness raising, privacy protection, the coverage of domestic workers although not entirely clear how this category of workers can find adequate protection, and possible cancellation of business licenses, there are weaknesses too. It excludes men for example. The new Act only speaks about “unwelcome behaviour”, avoiding words like “offensive” and remains silent on the negative impact of sexual harassment on the worker.
Second, sexual harassment can be created by a “hostile working environment” as I mentioned above. Here the Act confuses, by describing a few circumstances of “behaviour of sexual harassment” which at the same time “may amount to sexual harassment” … and seems to negate the power relations characterizing sexual harassment, between men and women but also between management or supervisors and staff.
A major shortcoming is the concrete absence of employment protection, assuring the right to continued employment once a complaint against sexual harassment has been lodged. On the contrary, the transfer of the aggrieved women is given as a first option when a complaint is being entertained. This one-sided burden of proof, squarely put on the victim, will put additional and unnecessary pressure discouraging women to file complaints, which already takes considerable perseverance and confidence to do so. In many countries, the complaint by the victim itself suffices to presume sexual harassment. Subsequently, the onus is being shifted to the suspected aggressor to prove innocence. If the investigating committee concludes that the complaint is false, it may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere inability to substantiate a complaint or provide adequate proof need not be treated as a false complaint.
There is a contradiction between the Criminal Law (Amendment) Act, 2013 popularly known as the ‘anti-rape law’ which was passed recently and already come into effect and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012. While the Criminal Law (Amendment) Act stipulates three years of jail plus fine for sexual harassment of women, the Harassment of Women at Workplace Bill provides for only conciliation and penalty to the offender.
Now, coming to the subject of employers’ role and responsibilities. The burden of preventing sexual harassment in the workplace in the new Bill rests primarily with the employer. The law encourages employers to take steps to prevent and correct sexual harassment in the workplace. These steps include:
Thank you.
More than sixteen years ago, the Supreme Court of India came out with the “Vishaka” judgement - building very much on international law for the formulation of effective measures “to check the evil of sexual harassment of working women at all workplaces” in India. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 which is the focus of today’s deliberations, passed by the Rajya Sabha in February this year, - is a compliance to this judgement. We very much welcome this Bill and also that FICCI and AIOE is organising this technical discussion today to better understand how employers organisations will have to comply with this new Bill.
Over the last decade, the pervasiveness and the cost of sexual harassment, a manifestation of sex-based discrimination, has become a growing concern both at national and international levels.
The ILO defines sexual harassment as a sex-based behaviour that is unwelcome and offensive to its recipient. For sexual harassment to exist these two conditions must be present. Sexual harassment may take two forms:
- Quid Pro Quo, when a job benefit - such as a pay rise, a promotion, or even continued employment - is made conditional on the victim acceding to demands to engage in some form of sexual behaviour; or;
- hostile working environment in which the conduct creates conditions that are intimidating or humiliating for the victim.
Ladies and gentlemen, sexual harassment is a serious manifestation of sex discrimination at the workplace and a violation of human rights. It produces losers only. It undermines equality, calling into question the integrity, dignity and physical and psychological well-being of workers. At the same time, enterprises are being damaged by destroyed work relationships impacting negatively on productivity. The ILO has over the years been actively promoting measures addressing sexual harassment in the working environment. The role of the ILO in this respect has also been recognized by the Supreme Court of India. In another judgement, Apparel Export Promotion Council v. A. K. Chopra, the Courts notes that as early as in 1993 at the ILO seminar held in Manila, it was recognized that sexual harassment of woman at the work place was a form of “gender discrimination against women”. In the opinion of the Court, the contents of the fundamental rights guaranteed in the India Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment.
The ILO supervisory bodies have expressed that sexual harassment is a form of sex discrimination falling within the scope of ILO Discrimination Convention No. 111, ratified by India in 1960. In view of the gravity and serious repercussions of sexual harassment, the ILO has had the opportunity to review legislative and policy approaches tackling sexual harassment in many countries. The new Act in India can be held against the light of this rich source of comparative experiences. While the Act does have many valid and positive points, on awareness raising, privacy protection, the coverage of domestic workers although not entirely clear how this category of workers can find adequate protection, and possible cancellation of business licenses, there are weaknesses too. It excludes men for example. The new Act only speaks about “unwelcome behaviour”, avoiding words like “offensive” and remains silent on the negative impact of sexual harassment on the worker.
Second, sexual harassment can be created by a “hostile working environment” as I mentioned above. Here the Act confuses, by describing a few circumstances of “behaviour of sexual harassment” which at the same time “may amount to sexual harassment” … and seems to negate the power relations characterizing sexual harassment, between men and women but also between management or supervisors and staff.
A major shortcoming is the concrete absence of employment protection, assuring the right to continued employment once a complaint against sexual harassment has been lodged. On the contrary, the transfer of the aggrieved women is given as a first option when a complaint is being entertained. This one-sided burden of proof, squarely put on the victim, will put additional and unnecessary pressure discouraging women to file complaints, which already takes considerable perseverance and confidence to do so. In many countries, the complaint by the victim itself suffices to presume sexual harassment. Subsequently, the onus is being shifted to the suspected aggressor to prove innocence. If the investigating committee concludes that the complaint is false, it may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere inability to substantiate a complaint or provide adequate proof need not be treated as a false complaint.
There is a contradiction between the Criminal Law (Amendment) Act, 2013 popularly known as the ‘anti-rape law’ which was passed recently and already come into effect and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012. While the Criminal Law (Amendment) Act stipulates three years of jail plus fine for sexual harassment of women, the Harassment of Women at Workplace Bill provides for only conciliation and penalty to the offender.
Now, coming to the subject of employers’ role and responsibilities. The burden of preventing sexual harassment in the workplace in the new Bill rests primarily with the employer. The law encourages employers to take steps to prevent and correct sexual harassment in the workplace. These steps include:
- the development and publication of a sexual harassment policy,
- the maintenance of an effective sexual harassment complaint mechanism, investigative process, record keeping system, and
- the screening, training and monitoring of supervisors and managers, specifically, and workers in general.
Thank you.