Anti Sexual Harassment Laws of India, UK and US

Anti Sexual Harassment Laws of India, UK and US: A comparative study

Introduction

According to the Act, Sexual Harassment is the act or behaviour which is unwanted or unwelcomed. It can be in various forms like verbal, visual, physical, and written. Also, it can be either directly or by implications, like physical contact and advances; direct demand or request for sexual favours; making sexually coloured remarks; instances of showing pornography; etc.

Types of Sexual Harassment:

  • Quid Pro Quo Harassment
  • Creating Hostile environment for sexual harassment

Quid Pro Quo Harassment: It is the kind; the harassment would be taken place by a person who is in power over other. For example: sexual favors or demands made by superior persons to their juniors in order to give them benefits like promotion or high incentives or to avoid demotion, etc.

Creating Hostile Environment: Harassment can be made by some severe conducts which may be unwelcomed or offensive which creates a hostile environment. Conducts like continuous demand for sexual favors, continuous requests for dating, kissing, hugging, making sexually colored remarks, showing pornography can be some examples which lead to the creation of hostile work environment. It would become difficult for women to survive in this condition. It leads to negative effects like increased absenteeism, decreased efficiency, etc.

 

Laws dealing with sexual harassment:

INTERNATIONAL FRAMEWORK

Universal Declaration of Human Rights:

  • According to Article 1, every person is equal rights in terms of dignity.
  • Article 3 talks about the right to life and personal liberty for all human beings.
  • Article 5 states that treating any human with cruelty or inhumane or degrading behaviour is prohibited.
  • Article 7 talks about the equality, every person shall get equal protection against any kind of discrimination.
  • Article 23 contains provisions about right to work and equal pay for equal work without any kind of discrimination.

Convention on Elimination of All Forms of Discrimination against Women:

  • Article 11 of the convention contains provision for prohibition of discrimination at work based on gender.[1]

INDIA

Constitutional Provisions:

  • Preamble of our constitution talks about securing of equality of status and opportunity to all the citizens. Sexual harassment may be proved against this basic idea of constitutional frame workers.
  • Article 14 talks about the equality and states that every citizen
  • Article 15 prohibits all kind of discrimination based on sex, religion, caste, race, etc. and Article 19 (1) (g) allows every person to practice any profession and to carry out any occupation. And sexual harassment at workplace can lead to discrimination on the basis of gender and deny the person to practice any profession, hence violative of Article 15 and 19.
  • Article 21 contains provisions of right to life and personal liberty and states “No person shall be deprived of his/her personal liberty except the procedure established by law.” Sexual Harassment violates this right to live with human dignity.[2]
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Judicial Interpretation:

For the first time, sexual harassment at the workplace was recognized by the Hon’ble Supreme Court in the case of Vishakha v State of Rajasthan[3]. This was the pubic interest litigation filed by non government organization, Vishakha or other women groups. Bhanweri Devi, a social worker was gang raped and her husband was brutally beaten by some upper caste people when she tried to stop the marriage of an infant girl. PIL was filed to enforce Article 14, 19 and 21 of constitution for working women. In this particular case, Supreme Court issued some guidelines to prevent the women from sexual harassment at workplace.[4]

Apparel Export Promotion Council v A K Chopra[5], in this particular case the respondent was removed from his position when the authority found him guilty for sexually harassing his junior employee. He filed the writ petition in High Court challenge his dismissal from the position. High Court found that as he just tried to molest his employee and not established any physical contact with her, therefore his dismissal was unjustified. The appeal was filed before the Supreme Court. Supreme Court extended the scope of definition o sexual harassment and stated that it is not necessary that sexual harassment will take place only when the physical conduct is present. It can be done in other ways too. Any conduct that outrages the modesty of women or is incompatible with dignity shall be considered as violative of right to life and personal liberty and right to equality.[6]

Statutory Provisions:

Indian Penal Code contains the following provisions:

Section 354: Assault or criminal force to woman with intent to outrage her modesty.

Section 354A: sexual harassment

Section 354 B: Assault or use of criminal force to woman with intent to disrobe.

Section 354C: Voyeurism

Section 354D: Stalking

Section 366A: Procuration of minor girl

Section 370: trafficking of person[7]

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Sexual harassment at Workplace (Prohibition, Prevention and Redressal) Act

The act was passed after the guidelines given by the Supreme Court in Vishakha case. The act protects the women from harassment at workplace. The act defines sexual harassment and what acts constitutes sexual harassment. It covers in its ambit almost all the workplaces in private or public sector employing more than 10 numbers of employees. It imposes certain duties on employer to prevent harassment at their workplace. It mandates the set up of separate committees (Internal Complaint Committee and Local Complaint Committee) to deal with complaints of sexual harassment.[8]

UNITED STATES OF AMERICA

Civil Rights Act, 1964:

Title VII of Civil Rights Act prohibits the discrimination on the basis of sex. Even though the term sex here is not defined anywhere, but the court in various cases interpreted it as synonym of gender. If a woman is being harassed at workplace, then it is violative of Title VII of Civil Rights Act. This law makes it illegal to discriminate among employees on the basis of gender. For example, not hiring or firing a person because of their gender; not giving equal opportunities or equal pay to women employees as compared to men is prohibited under this Title VII of Civil Rights Act.  Private employees, State and Local Governments, Educational institutes are covered within the scope of this law who employs at least 15 employees.

Title IX of Civil Rights Act, 1964 states that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” It prohibits the harassment or discrimination based on sex in educational programs.

Equal Employment Opportunity Commission in its guidelines states that employer will be held responsible for any kind of discrimination or harassment at their workplace. The guidelines stated the criteria for determining the constituents of sexual harassment:

  • Conduct should be made condition (implicit or explicit) of employment.
  • Submission or rejection of conduct should be used as a ground to take decisions which affects the harassed employee.
  • The harassment must have some impacts like creation of offensive or hostile working environment, affect on work performance of employee.[9]

 

William v Saxbee: It is the landmark case in USA which introduced the quid pro quo harassment. In this case, a woman employee was asked for sexual favors by her supervisor for advancement in her job. Upon refusal, she got fired. The court found it as a part of discrimination based on gender.[10]

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UNITED KINGDOMS

The Protection from Harassment Act, 1997 deals with various behaviour or conducts which cause distress or alarms the victim. It covers the provision of stalking as well.

This act was passed to provide remedies (both civil and criminal) to the victims.

In England and Wales

  • Section 1 of the act prohibits the person to indulge in any conducts which results in the harassment to other.
  • Section 2 imposes the punishments on breach of Section 1.
  • Section 2A contains the provision of stalking.
  • Section 3 provides the provisions for civil remedies to the victim.
  • Section 3A talks about injunctions to protect the persons from harassment

In Scotland

  • Section 8 defines harassment and allows the victim to initiate civil proceedings against the harasser.
  • Section 9 states that breach of the non harassment order resulted in the criminal offence and also it imposes punishment for that.[11]

The Public Order Act, 1986:

  • Section 4 A states intentional harassment, distress and alarm as an offence.
  • Section 4A (5) imposes punishment for this offence.
  • Section 5 of the act states harassment, alarm and distress as criminal offence.[12]

Conclusion:

Sexual harassment is a major issue that women face. Being the male dominant society, males considered them superior to women and try to harass them. To fulfill their sexual needs, they try to harass women even at workplaces, without keeping in mind the dignity of women. Although there are many laws which considered sexual harassment as offence under criminal law and wrongful act under civil law but still there are many places in India and other countries too where these laws are not properly implemented.

[1] B D Singh, Issue of Sexual Harassment- A Legal Prospective, Vol. 36 IJIR, 79-91 (2000)

[2] Astha Punia, Sexual  Harassment at Workplace, Vol. 5 AIJJS, 50 (2019)

[3] AIR 1997 SC 3011

[4] Simran, Case Analysis- Vishakha & Ors v State of Rajasthan, Legal Services India, http://www.legalserviceindia.com/legal/article-374-case-analysis-vishaka-and-others-v-s-state-of-rajasthan.html

[5] AIR 1999 SC 625

[6] Mahinder Narain, Apparel Export Promotion Council v A K Chopra, Case Mine, https://www.casemine.com/judgement/in/56090a93e4b014971117275a

[7] Indian Penal Code, 1860

[8] Madhu Sivaram Muttathil and Abhijit Gangadhar Poonja, India’s POSH Act- A Snapshot, ACC Docket, https://www.accdocket.com/articles/india-posh-act-a-snapshot.cfm#aboutAuthor

[9] Donald E. Maypole and Rosemarie Skaine, Sexual Harassment in the Workplace, Vol. 28 OUP, 385- 395 (1983)

[10] https://discriminationandsexualharassmentlawyers.com/landmark-sexual-harassment-cases-williams-v-saxbe/ (May 25, 2020, 8:30 pm)

[11] http://www.legislation.gov.uk/ukpga/1997/40/contents (May 25, 2020, 8:00 pm)

[12] http://www.legislation.gov.uk/ukpga/1986/64/contents (May 25, 2020, 8:15 pm)

Author: Mayank Malhotra,
Student, School of Law, Christ (deemed to be University) DELHI-NCR

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