Since Sexual Harassment Is So Subjective
While the case filed by a staffer at Tehelka mag against her editor-in-chief is being seen as a symbol of the glaring absence of women's rights at the workplace, it has also diddled the lid off the hypocrisies and appalling lack of sensation around the issue of sexual harassment and gender rights at the workplace.
From comments online, as well as those who take gone on national television to sympathise with Tarun Tejpal, to even Tejpal's own statements, where he seems to have trivialised, well-nigh excused, his declared behaviour equally a "fleeting, totally consensual encounter", it appears as well many people are too confused about the nuts of information technology.
The law, meanwhile, has definitions in place.
Section 2(n )of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (all the same to be notified) says sexual harassment "includes any one or more of the following unwelcome acts or behaviour (whether directly or past implication) namely:-physical contact and advances; or a need or request for sexual favours; or making sexually coloured remarks; or showing pornography; or whatsoever other unwelcome physical verbal or non-exact conduct of sexual nature."
Section 3 of the same Act cites certain instances which might be sexual harassment.
These include "(i) implied or explicit promise of preferential treatment in her employment; or (ii) unsaid or explicit threat of detrimental handling in her employment; or (iii) implied or explicit threat about her present or future employment status; or (i) interferes with her piece of work or creating an intimidating or offensive or hostile work environment for her; or (v) humiliating treatment probable to touch her health or safety."
Sexual harassment in itself is not easy to define.
"You know information technology when you see information technology," says advocate Karuna Nundy, calculation that the adult female'south feeling of discomfort is the deciding factor. She adds, "You lot look good' may not be a sexual comment, 'You lot look hot' is."
But the problem, of course, is that it's never that unproblematic. For someone combating a carnal boss, information technology is difficult to read into the legalese.
The country'due south first formal mandate confronting sexual harassment at the workplace came as recently as in 1997, with the Supreme Courtroom's legally binding directions in the Vishaka 5 State of Rajasthan and others case.
The barbarous gang rape of Bhanwari Devi, a social worker, brought to the attending of the Supreme Court of Republic of india, "the absenteeism of domestic law occupying the field" and the need "to formulate effective measures to check the evil of sexual harassment of working women at all work places."
Expert speak: "Sexual harassment at workplace is often not overt"
While the 2013 Act, that followed the guidelines, defines sexual harassment in similar terms, lawyers working on issues of women'due south rights in the land feel the Human action is not all that they had hoped for.
"This Act has diluted the spirit of Vishaka. It has been drafted using archaic language and legalese which the common persons, the beneficiary in item, volition never be able to understand. Information technology is non user friendly like Vishaka. Unlike Vishaka which prioritised prevention, the 2013 Act prioritises complaints and the complaint machinery, equipping an Internal Complaints Committee with powers of a Civil Court. Not only is that unworkable it is Constitutionally unviable to create a parallel court in the workplace," feels Naina Kapur, a lawyer.
In 1997, Kapur had framed and acted every bit lead instructing counsel before the Supreme Courtroom of India in the Vishaka example.
She adds, "It is the 'sexual' part of harassment that creates the nigh discomfort, an unnecessary socially-conditioned hurdle when nosotros're actually talking about women's Ramble equality at the workplace." And those working in the field of women'due south rights feel information technology is the responsibility of the organisation to ensure that.
Co-ordinate to the Act, every employer is required to plant an Internal Complaints Committee at each office or co-operative with 10 or more employees.
The District Officer is required to plant a Local Complaints Committee at each district, and if required at the block level.
Employers who fail to comply will exist punished with a fine of up to Rs 50,000.
But it falls short of US regulations, where the Supreme Court, in cases such as Burlington Industries Inc v Ellerth, has said that in quid pro quo cases of sexual harassment, an employer is e'er liable for a supervisor'due south or director's harassment, if information technology results in a tangible employment activeness.
The courtroom had held that in gild to defend itself, employers must show that they had exercised reasonable care to preclude and correct promptly whatsoever harassing behaviour, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Republic of india's long-awaited legislation against sexual harassment of women at the workplace (it took 16 years since the Vishaka sentence to formulate the legislation), however, poses more questions than it answers.
The United Nations has recognised sexual harassment as a grade of discrimination and violence against women. Under the Vishaka judgement too, the need for a law against sexual harassment of women at the workplace was felt to ensure proper interpretation of the guarantee of gender equality, right to work with human being dignity in Articles 14, 15 xix(i)(g) and 21 of the country'south Constitution.
But it is unclear whether gender-based discrimination or sexist remarks (think, this is not a job for a adult female) is covered under this Deed. Lawyers are divided on the issue.
Explains Seema Misra, a lawyer who works on problems related to women's rights, including sexual harassment, "Sexual harassment is a grade of gender-based discrimination, simply all gender-based discrimination is not sexual harassment."
Nevertheless, Vikas Gupta, a Delhi-based criminal lawyer is of the view that this Act tin exist used to cover gender-based discriminations and sexist behaviour.
"The section that says 'any other unwelcome physical verbal or non-exact conduct of sexual nature', can exist used to include sexist or gender-based comments for often they are the first stride towards more serious harassment.
In one case the Deed is notified and appeals are heard under it, interpretations volition follow." MS Khan, a criminal lawyer who practices at the Delhi Loftier Court, believes that gender-based discrimination is not included under this Act.
"Article 15 of the Constitution prohibits discrimination based on sex, but that is not covered under the purview of the sexual harassment of women at workplace Act 2013," he says, adding, "Internationally, workplace harassment includes both gender-based discrimination besides equally sexual harassment.
The difference is that in the US or Europe workplace harassment covers both harassment for men and women. Therefore gender-based harassment finds mention in that location. The 2013 Deed however, has been fatigued upwardly only to protect women. Men are not covered in it. And therefore gender-based bigotry is too not discussed in this Deed."
What the law says
The introduction to the Sexual Harassment of Women at the Workplace Deed 2013 says: "Sexual harassment results in violation of the fundamental rights of a adult female to equality under articles xiv and fifteen of the Constitution of India and her right to life and to alive with dignity under article 21 of the Constitution and right to practice any profession or to comport on whatever occupation, trade or business concern which includes a right to a safe environs free from sexual harassment."
"And the protection against sexual harassment and the correct to work with nobility are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25 June, 1993 past the Regime of Bharat..."
Case studies: when quitting is the only option
"I couldn't believe I was existence harassed."
Gauri Sharma, 35, Announcer, Delhi
"Nearly a year ago, when I was working in a newspaper, I had to frequently collaborate with the editor-in-chief direct. I always idea that he considered me every bit a sincere worker. Gradually, the tenor of his interactions with me started changing. If I had a trouble with whatsoever male person colleague, he would attribute it to my ignoring his involvement in me. He would also comment on my looks and attire.
I was in denial. As a journalist who had often reported on and taken a stand against sexual harassment of women, information technology was difficult for me to believe that I was really beingness harassed. He didn't desire a coming together in the office and insisted on meeting over lunch or coffee.
By then, I was uncomfortable and excused myself. Since so, he kept reminding me about the meeting outside work and also wanted to come to my place. He inquired if there were people at my house and if he could call me over to his place.
I was reluctant to meet him. He started finding excuses to hold my hand and put his arms around me against my will. I wasn't sure whom I could talk to well-nigh this and what would be the reaction of others at work. Later on a few days of this, I resigned."
(As told to Poulomi Banerjee)
Legal Speak: His comments and embracing would fall within the definition of inappropriate conduct at workplace. It is unclear whether the company has a policy or structure in place in compliance with Vishaka read with the 2013 Act. A adult female, as well equally a man, in the organisation has a right to expect their visitor to be in compliance with the law, says lawyer Naina Kapur.
"I was told I should exist more conscientious."
Roshni Verma, 27, PR Professional, Delhi
"About 8 months ago, I went to an annual part party in Mumbai where a senior colleague struck upward a conversation with me.
He was forty-years-onetime and married. After the political party, I was told that he would drop me to the hotel in his car as in that location was a shortage of cars. I refused as I hardly knew him and he was drunk. Simply I was told he was a senior person and he won't be driving.
On the way, he started hugging me and put my head on his shoulder. I refused and moved away. He over again came close and tried to kiss me and slide his hand under my shirt and fifty-fifty tried to go down on me.
I screamed and managed to get out of the machine and reached the hotel. I told my colleagues about the incident. We did not accept a sexual harassment cell at the work identify.
After I reached Delhi, I hoped for some activeness. Initially, the visitor showed regret and told me that one should exist more careful. After two weeks of follow- up, he was chosen to the Delhi office.
He denied the incident and said that I was making it all up. The company asked me what they should do now. I confronted him, simply he notwithstanding denied the incident. A few days passed and nothing was done nearly the incident.
After most 4 months, the person was thrown out of the task simply because of poor performance. I asked the visitor why he was not removed when he had sexually harassed me. They had no answer and I left the chore."
(As told to Srishti Jha)
Legal Speak: The unwelcome physical contact falls squarely inside the prohibited deport under the definition of sexual harassment. On the face of it, the Company was not in compliance with either the Vishaka Law or the new Sexual Harassment of Working Women (prevention, prohibition and redressal) Act 2013. All their actions were ad hoc and not in line with whatsoever legal provision, says lawyer Naina Kapur.
"The girl's reputation is tarnished."
Preeti, 27, Hr professional, Delhi
"This happened iv years ago when I was working in an NGO. Due to my piece of work profile, I had to interact with the head of the system more frequently than some of the others. I shared a comfortable relationship with him. On one of my birthdays, nosotros were on a work bout in Trichy.
After the workshop we had to participate in got over, he came to my room with a cake and champagne. We spoke for a while. Then he approached me and tried to hug me.
I pushed him away.
He then made a more forceful endeavour to hug me. I again pushed him away, request him what had got into him. He sat for a while and and so left. After we returned to Delhi, I tried to put it behind me.
However, the state of affairs worsened when I started dating a colleague. He would follow us to encounter where nosotros were going. Things became very uncomfortable and I left the organization.
I wanted to lodge some sort of complaint, only he was so senior. Too, oft it is the girl'south reputation that is tarnished in such cases."
(Equally told to Poulomi Banerjee)
Legal speak: The mindset that the complainant is tarnished, is the commencement hurdle. The goal is to bring the focus onto prohibited conduct and inappropriate behaviour of the offending individual irrespective of his or her condition.
The unwelcome try by the arrangement head to hug Preeti would fall inside prohibited unwelcome physical conduct every bit divers in Vishaka guidelines read with the Sexual Harassment of Working Women (prevention, prohibition and redressal) Act, 2013.
The subsequent following of Preeti and her colleague past the organisation caput comes under stalking so much so as to create enough discomfort for Preeti to accept to hand in her resignation, says Naina Kapur.
"I left the publication disheartened"
Tania Banerjee, 24, Announcer, Delhi
"After completing our post graduation in journalism, me and my classmate applied for internship with a leading English language daily in Kolkata. One day, the newspaper's associate editor called me. He said he had seen our Facebook profiles and would similar to have us on board.
On commencement day of our internship, this person asked me why I appeared sleepy and if I was not happy to work with the organization.
On other occasions, he would annotate on my appearance. His remarks included, "Yous have such beautiful optics, why don't you put some kajal (kohl) in them." "Why don't you dress upwards properly and make efforts to look improve?"
"Why exercise yous tie up your hair? You should exit it open." On the last day of the internship, he came up to me and said that he was disappointed. And information technology was not about piece of work.
"I was expecting that your advent, behaviour and personality would take been different from that of others. But you turned out to be an introvert," he said. I left the publication disheartened.
Later, I discovered that this was his usual behaviour with most every intern. I even heard that he preferred to have female interns and that he didn't act in this manner with the employees."
(As told to Ridhima Shukla)
Legal speak: The examination is whether it is making the person uncomfortable.
For example, if the boss told the intern that she was inappropriately dressed for work – there was a professional person way of doing information technology. If she was uncomfortable, she could have asked him to stop or spoken to the HR, says lawyer Seema Misra.
"I didn't complete my internship"
Mahima Singh, 26, It professional, Delhi
"Information technology happened when I was an intern in an It business firm in Delhi. It was post mid-nighttime. The squad I was function of, had to attend a video conference with an U.s.a.-based client. Once it got over, my squad caput offered to drop me dwelling. I agreed as I had no reason to exist wary about his advances.
In the car, he tried to brush his paw against my legs on the pretext of irresolute gears.
He asked me if I was staying alone in the city and whether I had a swain or not. When we reached my home, he asked me for a good night kiss. I was shocked. He grabbed me and kissed me. The moment I could free myself, I asked him to open the car door which he did. I ran towards my business firm.
On resuming office, I asked him why he had forcibly kissed me and said I could written report the incident to the 60 minutes.
His response was, "You lot never said no. Go alee, report information technology. I will tell them yous were an equal party to it and that'due south why agreed to go with me." He too said whatsoever happens between two adults exterior the office premises is something that they have to handle themselves. I left my fight there and never went back to complete my internship."
(As told to Zofeen Maqsood)
Legal Speak: Telling someone as well every bit continuous documentation of all that happened/is happening, is disquisitional in establishing a complaint. Over again, the scenario here is near unequal power with the team caput using his position equally a means to take sexual advantage of a inferior colleague, Mahima.
In this instance, the actions of the team leader could fall within the definition of prohibited conduct under the constabulary equally an unwelcome and direct physical advance, says Naina Kapur.
(The lawyers' response to the scenarios are preliminary and should not be construed equally legal advice. Names of victims have been changed to protect their identities.)
Since Sexual Harassment Is So Subjective
Source: https://www.hindustantimes.com/india/sexual-harassment-at-workplace-is-a-subjective-but-unacceptable-experience/story-QBId4eNJAIafXdaMTweXmL.html
0 Response to "Since Sexual Harassment Is So Subjective"
Post a Comment