Harassment against women occurred from various sources
Introduction:
Harassment against women occurred from various sources. There was criminal harassment that usually took the form of kidnapping, rape, public humiliation, trafficking & abuse. Extra-judicial harassment was perpetrated by the prevalent penal system & by members of law enforcing agencies, usually against women in custody. Domestic harassment consisted in battering & even burning of women. And a graphic illustration of social harassment was the custom of karo Kari, killing of a women in the family on suspicion of her having formed illicit liaison. None of these got reported on the scale it actually occurred.”
Sexual harassment has emerged as an important issue in Bangladesh only recently. Though people experienced what constituted harassment, probably since the beginning of waged labor, the recognition of such behavior as ‘sexual harassment’ and bringing it under the purview of law is a development of the recent past.
The examples of sexual harassment include, but are not limited to, sexual assault or rape, physical harassment including kissing, patting, pinching or touching in a sexual manner, verbal harassment such as unwelcome comments about a person’s appearance, dress code, privet life or body, sexual harassment such as winks, nods, gestures with hands ,lags or fingers, licking of lips, written or graphic harassment such as passim or displaying pornographic materials any other suggestive materials that is sexually harassing, as well as harassment via letters, e-mail and other modes of communication, and any behavior that makes some one emotionally vulnerable and isolated.[1]
Harassment might take place both in heterosexual and homosexual relationships. Sexual harassment is not confined to the work premises, and might take place in the bus or on the street on way to workplace.
There arc different approaches characterizing sexual harassment. The most prevalent is sex stereotype approach. This approach holds the idea that it is discriminatory to behave toward people in a way that is based on sex stereotypes. That is, it is discriminatory to penalize women for not conforming to female stereotypes.
Women viewed as passive and willing recipient of sexual overtures of their male superior and exercising quid pro no for sexual harassment are based on sex stereotype. Sex stereotype also gives rise to harassment by creating hostile work environment by upholding the view that women are unsuitable to. And incapable of, work that is predominantly male controlled.
In Bangladesh, sexual harassment is a reality in every woman’s life in every field. Hilda (1995) states that “sexual exploitation, humiliation, or causing embarrassment to women in a manner which is an expression of male superiority or a perceived dominance by men who believe that they have an inherent right to victimize women”. According to Hilda (1995), ‘ Women remain silent because of fear of reprisal as well as that of losing one’s job and thus one’s livelihood….Others do not know from whom to seek advice or assistance to stop the harassment’. In Bangladesh, the Suppression of Violence against Women and Children Act of 31 January 2000 (modified in 2003) for the first time made sexual harassment a criminal offence. The Act states:
Any man who. in order to satisfy his lust in an improper manner outrages [he modest of a woman, or make obscene gestures, will have engaged in sexual harassment for this, the above mentioned male will be sentenced to rigorous imprisonment of not more than seven years and not less than two years and beyond will be subjected to monetary tines as well.[2]
In Bangladesh, the Ministry of Women and Children Affairs is the government mechanism for the advancement of women. There is, however, no government monitoring mechanism to track the effectiveness of this law. Also there is no written code for dealing with harassing behaviors on the street. In spite of this, it is encouraging to have a legal stand at the state level to fight against sexual harassment. But at the micro level, the majority of organizations and companies working in Bangladesh do not subscribe to or follow any standard policy on sexual harassment in the work – place.
Research Methodology:
This Research Monograph is not basic one; it is a liability –based monograph . this monograph is originated from many articles, which is written by prominent figures of the respective arena. Method which is followed in this research monograph is –
- Collection of study materials with the help of the concerning teachers, friends, other students, regarding persons and institutions.
- Study and discussion with the concerned teacher.
- Collection of respective papers through internet browsing.
- Concentrated study through many journals, national and international publications.
- Contemplating over concentrated study.
- Prepared the dissertation paper.
Chapter one:
Defining Sexual Harassment in work place:
At the very starting of the discuss the readers should be clear about some difinations:
Work place:
Work place means any premises or yard where industrial process in carried on. It is according in the Bangladesh Labour Code, 2006.
Workplace is a refereed, open access journal published by a collective of scholars in critical higher education promoting a new dignity in academic work. Contributions are aimed at higher education workplace activism and dialogue on all issues of academic labor.
Harassment:
Harassment covers a wide range of offensive behaviour. It is commonly understood as behaviour intended to disturb or upset. In the legal sense, it is behaviour which is found threatening or disturbing. Sexual harassment refers to persistent and unwanted sexual advances, typically in the workplace, where the consequences of refusing are potentially very disadvantageous to the victim.
Famous research man Mr. Sanker said,
Sexual harassment means talking to someone who is not interested to hear about sexual matters. It could be a boy or girl. Stalking somebody, show abusive signs, talk vulgarly, sending indecent mails or making abusive phone calls etc., can all be termed as sexual harassment?
People who nurture positive thoughts never hurt their partners and harass them in any manner. Where there is true love, there is care, concern, sacrifice, mutual respect etc.
One must learn to behave properly in a civilized society and not harass anybody.
Sexual harassment:
In the leading case of Vishnka v. State of Rajasthan1 (“Vishaka”) the Supreme Court has defined “sexual harassment” as follows:
“sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
physical contact and advances;
a demand or request for sexual favours;
sexually-coloured remarks;
showing pornography;
any other unwelcome physical, verbal or non-verbal
conduct of sexual nature.
Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work (whether she is drawing salary, or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace (“SHW”). It is discriminatory, for instance, 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.
This definition is found in the guidelines formulated by the Supreme Court in Vishaka for the prevention and punishment of SHW. In discussing the definition of sexual harassment, this manual assumes that it would be sufficient to establish that conduct comes within the definition of sexual harassment in the Vishaka guidelines
In common law jurisdictions, the law generally categories sexual harassment at the workplace into two types. The first, termed “quid pro quo harassment”, consists of sexual demands accompanied by the threat of adverse job consequences if the demands are refused. The second, termed “hostile environment” harassment consists of conduct that renders the environment-at the workplace offensive or derogatory to the victim by reason of her gender. Both types of sexual harassment are incorporated in the definition of sexual harassment in Article 2 of the Vishaka Guidelines[3]. The concept of “quid pro quo harassment” is present in Article 2 in reference to unwelcome sexually determined behaviour in circumstances such that a woman believes that “her objection would disadvantage her in connection with her work.” Article 2 also refers to unwelcome sexually determined behaviour that creates a “hostile work environment”. Since the definition of sexual harassment in the Vishaka Guidelines draws from law developed in other common law countries, judgments from these countries on sexual harassment can be referred to in illustrating and explaining the meaning of SHW.
According to the Supreme Court of Canada in the case of Janzen v. Platy Enterprises, Ltd.2 (“Janzen”), conduct that constitutes sexual harassment varies “from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment.”
The Court quoted with approval from a book entitled Sexual Harassment in the Workplace by Arjun P. Aggarwnl The statement that “sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his or her work performance, or undermines his or her sense of personal dignity.” The Court also quoted with approval from another book entitled The Secret Oppression Sexual Harassment of Working.
Same-Sex Sexual Harassment
In the case of On cal, by approaching a complaint of sexual harassment from the point of view of whether the conduct complained against was derogatory in a gender-related manner, and not restricting the definition of sexual harassment to conduct having sexual content, the US Supreme Court has opened the door to complaints of sexual harassment against a person of the same-sex. According to the US Supreme Court, a complaint may be made out even where a woman is harassed in sex-specific and derogatory terms by another woman in a manner that makes it clear that the harasser is motivated “by general hostility to the presence of women.” This development in the law would be helpful, for instance, to women who find themselves being passed-over or otherwise discriminated against at work by their women superiors for gender-based reasons, such as that “women cannot take the same level of pressure as men,” or that “women with families are less committed to their work than men,” etc.
Other definition of sexual Harassment:
Sexual harassment in this context, (as is described in the Supreme Court Judgment, and the JNU Policy), includes any unwelcome sexually determined behavior, whether directly or by implication, and includes physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography and other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
a. When unwelcome sexual advances, requests for sexual favors, an ‘ verbal or physical conduct of a sexual nature, explicitly or implicitly are made, a term of condition of instruction, employment, participation, or evaluation of a person’s engagement in any academic or campus activity.
b. When unwelcome sexual advances and verbal, non-verbal, or physical conduct such as loaded comments, slander, remarks jokes , letters, phone calls or e-mail, gestures, showing of pornography, lurid stares, physical contact or molestation, stalking, sounds or display of a derogatory nature have the purpose or effect of interfering with an individual’s performance or of creating an intimidating, hostile or offensive campus environment.
Quid Pro Quo Harassment
The key elements of quid pro quo sexual harassment are a demand for a sexual favour and the threat of adverse job consequences if the demand is refused. It is implicit in the second element that the perpetrator has to be in a position to create adverse job consequences for the woman. Typically, such a person would have to be in a position of authority over the victim, although a quid pro quo sexual harassment situation may also exist vis-à-vis a colleague of the same rank, e.g., where work evaluation takes into account comments from co-workers, or when a co-worker makes sexual demands a condition for cooperating on a team project.
Adverse work consequences may be ‘tangible’ such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision to cause a significant change in benefits, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits and significantly diminished material responsibilities. These are some examples ‘is by the US Supreme Court in the case of Burlington v. Ellerth3 (“Burlington”).
It should be stressed here that it is not necessary in an allegation of quid pro quo harassment for the threat of adverse employment action to have been carried out. It is sufficient for the complainant to prove that such a threat was made. An example of such a case is Burlington. In ‘his case the After reviewing these facts, the His of Lords stated as follows: “[a]’ question of whether a reasonable person in her position might regard this as a deinmen’, the background is. Hip fact that not only was it the practice for appraisals to be done by the chief inspectors but this was…endemic in the Force. There was evidence that [the chief inspector] had carried out as many as thirty five pay raisals since she was promoted to the rank of Chief Inspector. Once it was known, as it was bound to be, that this part of her normal duties was taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority.”
In the opinion of the House of Lords, this was sufficient to establish that the chief inspector had suffered a detriment. Withholding the chief inspector’s duty to conduct appraisals, which included counseling the constables, was also seen to be detrimental as it “was liable to detract from the respect accorded to her by her colleagues and to deprive her of an opportunity to impress senior officers with her capabilities.” In the opinion of Lord Scott of Foscote, a justified and reasonable sense of grievance about an employment action could constitute a detriment.6
The US Supreme Court decision of Harris v. Forklift Systems7 (“Harris”) is illustrative, where the Court held that it is not necessary to show that the behaviour complained of impaired the work of the victim or that the conduct caused psychological injury. According to the Court, unlawful conduct may lie between conduct that is “merely offensive” and conduct that causes a tangible psychological injury. The Court stated that “a discriminatorily abusive work environment, evade one that does not seriously affect employees’ psychological -veil-being, can and often will detract from employees’ job-performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin” was contrary to the principle of workplace equality.
Bullying and Harassment
Harassment in the workplace is prohibited under the Employment Equality Act 1998. Employers must also prevent staff from being bullied under the Safety, Health and Welfare at Work Act 1989.
Workplace bullying is the repeated inappropriate behaviour, direct or indirect, whether verbal, physical, or otherwise, conducted by one or more persons against another or others, at the place of work and /or in the course of employment, which could reasonably be regarded as under manning the individual’s right to dignity at work. An isolated incident may be an affront to dignity at work but as a once off incident is not considered to be bullying.
Bullying can involve physical abuse or threats of abuse, loud voiced criticism or obsenities, using rumour, gossip or ridicule to undermine an employee, overloading an employee with work, withholding information or setting meaningless tasks as well as social exclusion or isolation.
Harassment can involve words, gestures or the production, display or circulation of material which are unwelcome to a person and could reasonably be regarded as offensive, humiliating or intimidating. Sexual harassment is defined as: acts of physical intimacy, requests for sexual favours, words or gestures or the production, display or circulation of written words or pictures which are unwelcome to a person and could reasonably be regarded as sexually offensive, humiliating or intimidating to that person.
Under the Equal Status Act 2000, employers also have a duty to ensure that clients are protected from harassment by employees.
Bullying or harassment can have a serious impact on a person’s well-being. It can cause psychological and physiological damage. People affected by this can change from being happy and confident at work to being isolated and withdrawn. It can also lead to greater levels of absenteeism and sick leave.[4]
If an employee has a complaint about bullying, a claim for ‘constructive dismissal’ may also be taken under the Unfair Dismissals Acts. If there is a sexual or discriminatory element, a claim may be taken under the Employment Equality Act.
Importance of the sexual Harassment:
We live in a world in which women do not have basic control over what happens to their bodies. Millions of women and girls are forced to marry and have sex with men they do not desire. Women are unable to depend on the government to protect them from physical harassment in the home, with sometimes fatal consequences, including increased risk of HIV/AIDS infection. Women in state custody face sexual assault by their jailers. Women are punished for having sex outside of marriage or with a person of their choosing . Husbands and other male family members obstruct or dictate women’s access to reproductive health care. Doctors and government officials disproportionately target women from disadvantaged or marginalized communities for coercive family planning policies.[5]
Our duty as activists is to expose and denounce as human rights violations those practices and policies that silence and subordinate women. We reject specific legal, cultural, or religious practices by which women are systematically discriminated against, excluded from political participation and public life, segregated in their daily lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance rights, killed for having sex, forced to marry, assaulted for not conforming to gender norms, and sold into forced labor. Arguments that sustain and excuse these human rights abuses – those of cultural norms, “appropriate” rights for women, or western imperialism – barely disguise their true meaning: That woman’s lives matter less than men’s. Cultural relativism, which argues that there are no universal human rights and that rights are culture-specific and culturally determined, is still a formidable and corrosive challenge to women’s rights to equality and dignity in all facets of their lives.
The Women’s Rights Division of Human Rights Watch fights against the dehumanization and marginalization of women. We promote women’s equal rights and human dignity. The realization of women’s rights is a global struggle based on universal human rights and the rule of law. It requires all of us to unite in solidarity to end traditions, practices, and laws that harm women. It is a fight for freedom to be fully and completely human and equal without apology or permission. Ultimately, the struggle for women’s human rights must be about making women’s lives matter everywhere all the time. In practice, this means taking action to stop discrimination and harassment against women.’’
Nature & Scope of the sturdy:
The present study is based on the premise that in Bangladesh the popular understanding of sexual harassment is inadequate, it is generally a less reported factor in organizations and that organizations in general lack proper support structure and commitment to the whole issue. In this connection, one could cite, for example, the lack of an enabling policy, absence of separate sexual harassment handling team/cell and of the evidence of taking disciplinary actions against harasser, and lack of moral support and encouragement especially for the women staff to speak out the issue. The research seeks to explore and validate such premises. In doing so it focuses on what the staff members of an international and a national’ organization in Bangladesh see as sexual harassment (i.e. their definition of sexual harassment) and the support and commitment of the organizations to deal with and act on sexually harassing behavior. Along with this, the paper discusses about the legal provision ( both international and national) which can facilitate addressing the issues of sexual harassment at an organizational level.[6]
Chapter two:
Practical guide for identifying instances of SHW:
Light of the definitions enumerated in chapter one, we may create a cheek list of the key elements of sexual harassment.
Verbal Harassment are those :
• Asking for or demanding sexual favors
• Making comments with sexual overtones, suggestive remarks, double entendres
• Talking to the woman employee about the wife
• Making comments about a woman’s pregnancy, or (related matters such as lack of children, etc.)
• Insulting publicly, saying something demeaning, humiliating
• Commenting on personal appearance especially about parts of the body
• Making obscene remarks, cracking obscene jokes, singing obscene songs
• Asking personal questions about abortion, etc. upon submission of medical bills
• Linking up with top bosses, “male bonding” and commenting/gossiping about women staff
• Calling late at night, crank calls, leaving lewd messages on answering machine
• Talking with unnecessary touching, brushing against another’s body
• Calling to the cabin unnecessarily (e.g. pretending to need a file)
• Teasing and using names such as “darling”, “honey”, “sweetheart”, etc.
• Discussing marriage, fertility and other personal issues (i-‘.g., “why don’t you wear sin door, ring, etc. ?”)
• Swearing unnecessarily, getting drunk and talking “nonsense”
• Making sexist remarks, misogynist humor
• Discussing somebody’s sexuality in public without their consent
• Making passes
Conduct of a Sexual Nature are:
• Physical contact or advances
• Touching, pinching, grabbing, holding, rubbing up against, etc.
• Sexual assault
• Coming and sitting in the hotel room and drinking when out for conferences
• Creating scenes in public
• Following you
• Cornering, trapping or blocking a person’s pathway
• Forcibly entering public transport
• Forcing one to smoke
• Locking the door while discussing work
• Landing up at the residence every Sunday
• Making a woman conscious of her surroundings, herself
• Making it difficult for a woman to come to the office
• Asking the woman to dress in a particular way
• Opening belt after eating
• Sitting in an obscene manner
• Leering or staring at another’s body and/or sexually suggestive gesturing
• Stalking
• Drinking in the office
• Excessively lengthy handshakes
• Display of pornographic material or sexual explicit written material
• Display of sexually visual material such as pinups, cartoons, graffiti, computer programmers, or catalogues of a sexual nature
• Sending e-mails with propositions, advances, pornographic or inappropriate materials, sexually colored remarks or jokes, etc.
The Discrimination Amounting to Sexual Harassment:
The core elements of discrimination amounting to sexual harassment may be——-
* Disallowing women to come up above a particular grade
* Failing to provide rest rooms, ladies toilets and day care centers
* Addressing certain issues to men and certain to women
* Giving extra work simply because the employee is a woman
* Trying to unnecessarily find fault with work
* Not a friendly work environment for women
* Giving more attractive assignments to men
* Commenting on a women’s attributes rather than her work
* Treating a woman like an ornament
* Making the women give bouquets, etc.
* Refusing to take complaints seriously
* Condoning acts of SHW by actively encouraging or passively not taking affirmative steps to prevent them
* Asking unwarranted questions when women want to take leave
* Gender stereotyping
* Discriminating on the basis of sexual orientation
* Trivializing the issue, telling a woman who complains of harassment to forgive and forget
Unacceptable Victimization :
In the category of unaccepted victimization the following issues are included——
• Threatening harm to victim and her family
• Transferring
• Giving bad Annual Confidential Reports
• Defaming on refusal
• Making physical threats and attacks
• Terminating services
• Stopping increments, promotion
• Troubling and involving relatives and friends
• Hiring hoodlums to harass you
• Conducting bogus inquiries
• Intimidating or threatening the peers in whom the victim confided
• Filing defamation suits
• Threatening witnesses
Chapter three:
‘Sexual Harassment’ as defined in other parts of the word:
EEOC, United States of America
In 1980 the American Equal Employment Opportunity Commission produced one of the first set of guidelines dealing with sexual harassment.” The Commission took the position that sexual harassment was a violation of Title VII of the Civil Rights Act of 1964. US courts including the US Supreme Court have approvingly referred to the EEOC guidelines while deciding complaints of discrimination on ground of sex under Title VII. The EEOC guidelines have been quoted with approval even by courts and human rights tribunals in Canada. The EEOC guidelines define ‘sexual harassment’ as follows:
Harassment on the basis of sex is a violation of Section 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record- as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.”[7]
In California, the Fair Employment& Housing Act [The Californian Administrative Code, Title 2, Regulation 7287.6 (1988)] defines the term “harassment” as employed in the Act, thus:
(1) Harassment includes but is not limited to:
Verbal harassment, e.g., epithets, derogatory comments, or slurs….
Physical harassment, e.g., assault, impeding or blocking movement,
or any physical interference with normal work or movement when
directed at an individual ….
(O Visual forms of harassment, e.g., derogatory posters, cartoons or drawings ….
(D) Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors….
(£) In applying this sub-section, the rights of free speech and association shall be accommodated consistently with the intention of this subsection.”
United Kingdom:
In the UK courts have held sexual harassment to be a conduct prohibited by the Sex Discrimination Act, 1975. However, the term ‘sexual harassment’ is not found in the 1975 Act; nor is such conduct expressly dealt with therein. The 1975 Act is essentially designed to deal with the mischief of discrimination “on the ground of sex”, i.e., gender specific discrimination.
Section l(l)(n) of the Sex Discrimination Act, 1975 provides:
“A person discriminates against a woman in any circumstances relevant for the. purposes of any provision of this Act if— (a) on the ground of her sex he treats her less favorably than he treats or would treat a man.”[8]
Section 2(1) of the Act provides that Section 1, and the provisions of Parts II and III of the Act relating to sex discrimination against women, are to be read us applying equally to the treatment of man, with the requisite modification-;. Section 6(2), which
is in Part II of the Act, provides that it is unlawful is a person, in relation to employment by him at an establishment in Britain, to discriminate against a woman by dismissing her, or subjecting her to any other detriment. The courts have defined ‘sexual harassment’ in cases arising out of the Sex Discrimination Act, 1975. They have held it to be a “detriment” within the meaning of Section 6(2) of the Act.14 “Detriment” means a disadvantage suffered by the complainant and encompasses both tangible economic loss (quid pro quo sexual harassment) and deterioration of the working environment to the point where the harassment, being severe or pervasive, detrimentally affects the complainant (hostile working environment sexual harassment).
Canada
In Canada, the Canada Labour Code defines ‘sexual harassment’ as follows:
“Section 247.1.[Sexual harassment’ means any conduct, comment, gesture or contact of a sexual nature (a) that is likely to cause offence or humiliation to any employee; or in 1989, Dickson, CJ for the Supreme Court of Canada also endorsed a broad approach for defining the terra sexual harassment, thus:
“Without seeking to provide an exhaustive definition of the term, 1 am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse in-related consequences for the victims of the harassment. It is, as Adjudicator Shame observed in Bell v. Latins, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.”
Australia
Before its amendment in the year 1992, the Federal Sex Discrimination Act,
1984 defined the term ‘sexual harassment’ as under:
“A person shall, for the purposes of this section, be taken to sexually harass another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favor, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and
(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person’s employment or work or possible employment or possible work; or[9]
(b) as a result of the other person’s rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s employment or work or possible employment or possible work. “Section 28(4) of the above Act provided, “A reference in sub-section (3) to conduct of a sexual nature in relation to a person includes a reference to the making to, or in the persons of, a person, of a statement of a sexual nature concerning that person , whether the statement is made orally or in writing.”
In 1992,the commonwealth House of Representatives Standing Committee on Legal and Constitutional Affairs, Australia conducted an inquiry regarding equal opportunities and status for women. The Committee recommended repeal of Section 28(3) of the Sex Discrimination Act and its replacement by a new section containing a birder definition of ‘sexual harassment’-. Resultantly, the Sex Discrimination Ac was amended by the Sex Discrimination and Other Legislation Amendment Act, 1992. Section 28(3) was repealed and replaced by Section 28-A that defined sexual harassment in broader terms. Section 28-A of the Sex Discrimination Act provides, thus: “A person sexually harasses another person if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.”
Queensland provides for a yet broader definition of sexual harassment in Section 119 of the Anti-Discrimination Act, 1991: “119 Sexual harassment happens if a person— (n) subjects another person to an unsolicited act of physical intimacy; makes an unsolicited demand or request (whether directly or by implication) for sexual favors from the other person; or makes a remark with sexual connotations relating to the other person;engages in any other unwelcome conduct of a sexual nature in relation to the other person; (e) with the intention of offending, humiliating or intimidating the other person; or
(/) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Section 120 of the Anti-Discrimination Act, 1991 provides as follows:
“120. The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include —
(a) the sex of the other person; and (b) the age of the other person; and (c) the race of the other person; and (d) any impairment that the other person has; and (e) the relationship between the other person and the person engaging in
the conduct; and (/) any other circumstances of the other person.”
New Zealand
In New Zealand, the Employment Contracts Act provides that “an employee is sexually harassed … if that employee’s employer or a representative of that employer (a) makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity which contains (i) an implied or overt promise of preferential treatment in that employee’s employment; or an implied or overt threat of detrimental treatment in that employee’s employment; or an implied or overt threat about the present or future employment status of that employee; or (b) by the use of words (whether written or spoken) of a sexual nature; or physical behaviour of a sexual nature, subjects the employee to behaviour which is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) is either repeated or of such a sign; leant nature that it has’ a detrimental effect on that employee’s employment job performance, or job satisfaction”
Switzerland
In Switzerland no statute explicitly defines sexual harassment. However, one court has defined ‘sexual harassment in these terms:
“Persons who in their position of employer (physical person), supervisor or collaborator, take advantage of their position or influence in an enterprise to harass an employee or a job applicant of the same sex or of the opposite, by unwelcome propositions, immoral comments, images, objects, gestures or undesired behavior, … with the goal of directly or indirectly obtaining sexual favors in making understood either verbally or „ tacitly that the acceptance or refusal of such favours should or could constitute a decisive criterion for the signature, content, means of application or the continuation of an employment contract, or … with the goal, or with the result, of poisoning the existing or future working environment”, would be guilty of committing sexual harassment.
[10]International Confederation of Free Trade Unions (ICFTU), 1986
The ‘union guide on sexual harassment at work’ published by the Women’s Bureau of the International Confederation of Free Trade Unions (ICFTU) in 1986 defines and describes ‘sexual harassment’ as under:
“What is Sexual Harassment?
Sexual Harassment is any repeated and unwanted verbal, physical or gestural sexual advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which are offensive to the worker involved, which cause the worker to feel threatened, humiliated, patronized or harassed, or which interfere with the worker’s job performance, undermine job security or create a threatening or intimidating work environment.
It is a new name for a problem which is certainly not new. It is not sexual flirtation based on mutual consent. Sexual harassment is frequently a display of power, which is intended to intimidate, coerce or degrade another worker. It is a form of victimization about which increasing concern is being expressed in the workplace.
Sexual harassment encompasses a wide range of unwanted sexual advances including unnecessary physical contact, touching or patting; suggestive and unwelcome remarks, jokes, comments about appearance and deliberate verbal abuse; leering and compromising invitations; use of pornographic pictures at the workplace; demands for sexual favours; or physical assault.
[11]United Nations:
The Committee on the Elimination of Discrimination against women constituted by the United Nations in is General Recommendation (January 1992) titled ‘Violence again women said that ‘sexual harassment’ is a form of gender-based violence. It is gender based because “it is directed against a woman because she is a woman or which affects women proportionately”. This in chides “acts which inflict physical, mental or sexual harm or suffering, threats of such acts (and) coercion”. The Recommendation defined the term ‘sexual harassment’ as follows:
“Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexual) colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and constitute a health and safely problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.”
India:
In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No. 19 (January 1992) of the Committee on the Elimination of Discrimination against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajas than. The definition is almost in puri materia with the one proposed by the CEDAW, United Nations and reads:
“sexual harassment includes such unwelcome sexually-determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-colored remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection ) 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.’
The above definition of ‘sexual harassment’ as provided by the Indian Supreme Court, thus, recognizes both forms of sexual harassment, viz., quid pro quo sexual harassment and hostile environment sexual harassment. “An analysis of the above;’ definition,” said Dr A.S. Anand, CJ in Apparel Export Promotion Council v. A.K. Chopra”shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.”
The judgment of the Mumbai High Court in Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhatka illustrates how a typical case of sexual harassment may include both quid pro quo and hostile environment elements. In this case the victim, a lady, was employed with the Saudi Arabian Airlines as Secretary to the Station Manager. One B, a male, subsequently took charge as Station Manager (Airport). The said B made “repeated attempts to transgress the limits of healthy working relationship” with the victim who was his subordinate. B used to make persistent demands to the victim that she should come out with him for lunches and dinners, which she politely declined. Then he started making indecent and objectionable personal remarks, like, for example, asking her the details of the method of family planning followed by her. Now, this was a purely personal matter with which neither he nor any other superior officer could have any concern. Naturally, the victim protested vigorously against such offensive, unwelcome personal remarks. She also told B politely, but in unmistakable terms, that she had no interest in having any personal relationship with him as it offended her moral values. However, this polite rebuff evidently offended the macho male ego of B and he then started systematically harassing her. The victim was denied the promotion due to her. Instead, her junior was promoted. B’s improper requests and unwelcome sexual advances, however, continued during the day-to-day working. When a second vacancy for the promotion post for the victim arose, she made a representation requesting for being promoted. Soon thereafter B telephoned to her residence around midnight and asked her to visit his residence right away to discuss the issue of her promotion. The victim considered the suggestion extremely offensive, expressed .her displeasure at the conduct of B and reported the matter to the Petitioner’s entry Manager (India), who assured her that suitable action would be taken sit. The Country Manager also requested her “not to make a big issue” of conduct by officially making a written complain .if the incident, as it would, reparation as well as the prestige of the- Petitioner Airlines.
The Country Manager without putting anything on record. palled upand this led lo B adopting vindictive attitude towards the victim . Her representation was totally ignored and the promotion was given to someone else who was her junior and in fact had been trained by her on several job functions. The constant harassment at work led to continued mental tension and anxiety for the victim and resulted in her sickness and applying for leave as approved by the Petitioner’s doctor.
Even after she resumed work, B continued to sexually harass and humiliate near by issuing her false memos on untrue and trouped up allegations of negligence in work. Her request for a vacation was rejected. She was denied training facilities. Though serious mistakes of other staff were overlooked, but she was promptly given warning letters on petty and, on occasions, non-existent grounds. She was even forced to carry out typing work which was not part of her regular job.
The continued harassment meted out to the victim constrained her to complain to her Supervisor, seeking his intervention in the matter. When the Supervisor sought clarifications from B, the latter immediately sent the victim on leave, though earlier he had rejected such leave. However, when the victim attempted to resume duty on the expiry of her leave, she was not allowed to do so for four days, nor was she allowed to sign the muster-roll or perform any other duties despite her going to the office every day. During this period of four days, B threatened her that she would be dismissed from work and that he would make sure that the job of her husband in Saudi Arabia would be put in danger. During that period the victim was living alone in Mumbai with two small children. Her husband was employed in Saudi Arabia. The pressure tactics of B resulted in creating an acute state of mental anxiety on the part of the victim and enabled B to extract an apology letter from her, after which she was taken back on duty. While taking the said apology letter, B assured the victim that it would not be used for official purpose. Contrary to this assurance, B got her suspended without wages for five days. When the victim resumed her duty and told B that the suspension was illegal and that she would take up the matter with the Head Office of the Petitioner in Saudi Arabia, B complained to the Country Manager who summoned the victim to his office and threatened her that, with the help of the Consul General of Saudi Arabia, he would ensure that her husband lost his job in Saudi Arabia if she attempted to challenge the suspension order. Left with no recourse, the victim succumbed to this threat and endured the punishment, though it was based on false grounds and was without basis.[12]
Chapter Four
Sexual harassment in hostile work environment
Hostile Work Environment
Frequently, a quid pro quo situation does not exist. Many sexual harassment victims are never threatened with termination or lack of advancement. Rather, they suffer repeated abuse by a hostile work environment, which is an alternative ground for bringing a Title VII sexual harassment action. A hostile work environment arises when a co-worker or supervisor, engaging in unwelcome and inappropriate sexually based behavior, renders the workplace atmosphere intimidating, hostile, or offensive.
In one early case, Bundy v. Jackson,the District of Columbia Circuit Court of Appeals characterized hostile environment cases as presenting a “cruel trilemma.”53 In Bundy the victim had three options: (1) to endure the harassment, (2) to attempt to oppose it and likely make the situation worse, or (3) to leave the place of employment. A hostile work environment, the court held, represented discrimination under Title VII and constituted grounds for legal action. Over the next few years other courts followed this holding.
In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, endorsed the notion of a hostile work environment. Placing strong emphasis on EEOC guidelines, the Court held such sexual misconduct constitutes prohibited sexual harassment, even if it is not linked directly to the grant or denial of an economic quid pro quo, where “such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
This decision set the stage for a broader definition of sexual harassment. It also gave rise to a debate over two related issues: What degree of abuse is needed to constitute hostility that interferes unreasonably with a victim’s work performance, and what is the nature and extent of an employer’s liability for a hostile work environment.
What Is a Hostile Work Environment?
As part of its decision in Meritor, the Supreme Court stated that a hostile work environment constitutes grounds for an action only when the conduct is unwelcome, based on sex, and severe or pervasive enough “to alter the conditions of [the victim’s] employment and create an abusive working environment.” This standard raises numerous questions. What is unwelcome? When is conduct based on sex? Are employees allowed to flirt on the job anymore? Can they tell off-color jokes? What happens when someone gets offended? Who decides what is appropriate, and what is not? Should employees be required to tolerate some minimal level of offensive sexual behavior within the workplace? The EEOC itself has stated, “Title VII does not proscribe all conduct of a sexual nature in the workplace.” The line is drawn between acceptable sexual conduct and sexual harassment where the conduct becomes unwelcome. However, as the courts continue to grapple with the definition of unwelcome sexual conduct, their decisions have not followed a predictable pattern. Nonetheless, the courts now grant relief for sexual harassment far more often than they did initially. Today, courts will more likely find an illegal hostile environment present when the workplace includes sexual propositions, pornography, extremely vulgar language, sexual touching, degrading comments, or embarrassing questions or jokes. The following cases illustrate conduct that creates a hostile work environment.
(1) In Hall v. Gus Construction Co., a construction company hired three women to work as “flag persons” or traffic controllers at road construction sites. Male co-workers immediately and continually subjected the women to outrageous verbal sexual abuse. One of the three women developed a skin reaction to the sun and the men nicknamed her “Herpes.” When the women returned to their car after work one day, they found obscenities written in the dust on their car. Male co-workers continuously asked the woman if they wanted to engage in sexual intercourse or oral sex. In addition to the verbal abuse, the women were constantly subjected to offensive and unwelcome physical contact. On one occasion, the men held up one of the female employees so that the driver of a truck could touch her. The men subjected all three woman to other types of abuse, including “mooning” them, showing them pornographic pictures, and urinating in their water bottles and automobile gas tanks. The company’s supervisor was well aware of all of these activities. The court found this conduct violated Title VII because it was unwelcome conduct of a sexual nature, even though it did not contain “explicit sexual overtones.”
(2) In Robinson v. Jacksonville Shipyards, Inc., a shipyard company employed a female welder who was continually subjected to nude and partially nude pictures posted by her male co-workers. The men posted these pictures not only in common areas, but also in places where the victim would have to encounter them, including her tool box. The men referred to the victim as “baby,” “sugar,” “momma,” and “dear.” In addition, the men wrote obscene graffiti directed at the victim all over the plant. The men also made numerous suggestive and offensive remarks to the victim concerning her body and the pictures posted on the walls. The victim complained about this atmosphere of harassment on a number of occasions, but the company’s supervisory personnel provided little or no assistance. The court found this conduct violated Title VII because the plaintiff belonged to a protected category, was subject to unwelcome sexual harassment, the harassment was based on sex, it affected a term or condition of her employment, and the employer knew or should have known about the harassment and failed to take remedial action.
(3) In Waltman v. International Paper Co., the harassment began when a co-worker broadcast over the company’s public address system obscenities about the female victim, who then received over thirty pornographic notes in her locker. The men covered the walls of the facility and the elevator with pornographic pictures and crude remarks concerning the victim. In addition, one of the victim’s supervisors told her that she should have sex with a certain co-worker; he also physically accosted her. Another employee told the victim that “he would cut off her left breast and shove it down her throat.” On another occasion, this same employee held the victim “over a stairwell, more than thirty feet from the floor.” Other male employees also physically grabbed and pinched the victim. The court found this conduct stated a claim of hostile environment discrimination under Title VII, because employees touched her in a sexual manner, directed sexual comments toward her, and continued to write sexual graffiti through out the workplace.
Even though these examples involved blue collar workers, the problem of sexual harassment permeates all businesses and reaches upper management. No company or supervisor can prudently ignore the problem. Another issue concerning hostile environment cases is whether a victim may only recover for sexual harassment aimed at the victim, or whether she may cite examples of sex-based conduct directed at other employees to establish her prima facie case. A number of courts have held that incidents involving employees other than the victim are relevant in establishing a generally hostile work environment. In the last few years, new rulings have introduced another element into the fray. In 1991, the U.S. Court of Appeals for the Ninth Circuit stated that sexual harassment should be examined from the perspective of what a “reasonable woman,” not a “reasonable person,” would find offensive. This holding has raised additional questions: Whose perspective should prevail? What is meant by a “reasonable woman?” By a “reasonable man?” By a “reasonable person?” If a reasonable woman standard is utilized can a male ever be confident of his conduct?
Although the courts are toiling over the details of hostile environment cases, the Supreme Court remains steadfast in its view that federal law prohibits that type of sexual discrimination. In the 1993 case of Harris v. Forklift Systems, Inc., the Supre