What amounts to sexual harassment?
In 1997 in Vishaka Vs. State of Rajasthan and others, for the first time sexual harassment had been explicitly- legally defined as an unwelcome sexual gesture or behaviour whether directly or indirectly as
1. Sexually coloured remarks
2. Physical contact and advances
3. Showing pornography
4. A demand or request for sexual favours
5. Any other unwelcome physical, verbal/non-verbal conduct being sexual in nature.
It was in this landmark case that the sexual harassment was identified as a separate illegal behaviour. The critical factor in sexual harassment is the unwelcomeness of the behaviour. Thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator- which is to be considered.
In any kind of organization i.e. government, private or public enterprises such kind of conduct creates an apprehension in the minds of the employees that if they don’t perform the work given to them they will be one the victims of sexual harassment and thereby it creates fear in their minds. On the other hands it is also the employer who might threat the employee regarding there transfer, promotion etc. and it has been seen in the corporates that the employer do ask for some kind of favour in order to give the job, transfer or promotion or for that matter in order to increase their salary. All this amounts to Sexual Harassment because it is done against the will of the person and the employees who are in need of the above things do agree to the terms of the employer.
In other words it can be said that, it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
Laws under which a case can be filed
In India there is no specific law relating to Sexual Harassment at workplace but there are certain sections in the Indian Penal Code (IPC) and Constitution and certain other laws and Acts that protect the women’s from sexual harassment at workplace and they are as follows:
Section 354, IPC deals with assault or criminal force to a woman with the intent to outrage her modesty and lays down that:
Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or both.
In cases where the accused sexually harasses or insults the modesty of a woman by way of either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the modesty of a woman, he shall be punished under Sections.294 and 509 respectively.
Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an important ingredient of this offence, it being associated with the mental condition, has often to be inferred from proved facts. However, another important ingredient of this offence is that the obscene acts or songs must be committed or sung in or near any public place.
Section 509, IPC deals with word, gesture or act intended to insult the modesty of a woman and lays down that:
Whoever intending to insult the modesty of any woman utters any word, makes any sound or gesture, or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or both. (Cognizable and bailable offences).
Civil suit can be filed for damages under tort laws. That is, the basis for filing the case would be mental anguish, physical harassment, loss of income and employment caused by the sexual harassment.
Under the Indecent Representation of Women (Prohibition) Act (1987) if an individual harasses another with books, photographs, paintings, films, pamphlets, packages, etc. containing “indecent representation of women”; they are liable for a minimum sentence of 2 years.
In Vishaka Vs. State of Rajasthan and others, the Supreme Court in absence of any enacted law (which still remains absent- save the Supreme Court guidelines as stated hereunder) to provide for effective enforcement of basic human rights of gender equality and guarantee against sexual harassment, laid down the following guidelines:
All Employers or persons in charge of work place whether in public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined, above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules / regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1940.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
Awareness
Rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. This is one of the most important factors that should be taken up seriously both by the employer and the government. The female employees should be made aware of the rights that are available to them relating to Sexual Harassment. In the metropolitan cities the female employees working in good companies and working at high level are very well about their rights but those females who are working at the low level and in small towns hardly know about their rights which they can exercise for any kind of sexual harassment thereby getting relief from the court as well as their dignity lost due to this harassment.
credit original http://www.legalservicesindia.com/article/1474/Sexual-Harassment-at-work-place.html