Sexual Harassment in the Workplace
What constitutes Sexual Harassment in the workplace?
- Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment in the workplace.
- Sexual harassment is implied either explicitly or implicitly, when submission to such conduct is a term or condition of an individual’s employment, or when rejection of such advances is used to penalize the individual at work.
- Similarly, sexual harassment occurs when submission to sexual advances is used to benefit the conditions of the individual’s employment, or if such sexual misconduct interferes with an individual’s work thereby creating a hostile and offensive work environment.
- While the key word in cases of sexual harassment is ‘Unwelcome’ sexual advances, it is also important to remember that however uncouth the conduct of the proposer is, it is not considered sexual harassment if it is welcome.
- Therefore, it is critical that an individual, who finds such behaviour uncomfortable and unpleasant, should communicate either orally or in writing to the harasser, that his behaviour is unwelcome, unsolicited and offensive.
- Sexual harassment need not be directed only by men towards women. There have been instances of such unwelcome behaviour by women in superior positions towards men. However the majority of sexual harassment occurs by men towards women.
- Sexual harassment takes place in many forms and in many locations, both at the workplace and in public spaces, such as in trains and buses, on the road, in marketplaces, and so forth.
- However, sexual harassment in the workplace is critical, since it can affect not just the work output of the victim but also his or her mental and emotional state.
- There is also a strong possibility that refusal to submit to sexual advances could result in other forms of harassment with regard to promotions, capacity building opportunities and salary increases, et al.
What does the ILO’s Decent Work Agenda state with regard to sexual harassment in the workplace?
- The ILO’s Decent Work Agenda states that Productive Employment and Decent Work are key elements to achieving a fair globalization and the reduction of poverty. Decent Work is achieved through four strategic pillars: job creation, rights at work, social protection and social dialogue, with gender equality as a crosscutting objective.
What kinds of conduct can be considered sexual in nature?
- Sexual harassment can be through:
- Unnecessary physical contact,
- Touching or patting,
- Suggestive or unwelcome remarks, vulgar and crude jokes, deliberate verbal abuse, leering and suggestive invitations,
- Use/ display of pornographic pictures, screensavers or e-mails of a sexual nature,
- Demand for sexual favours and physical assault, are all demonstrative of sexual harassment.
- Non-sexual harassment could be:
- In the event, the individual is working in an all male environment, non-sexual harassment may be demonstrated simply because the worker is a woman and harassment could take place in a manner that communicates the resentment felt towards the presence of the woman worker.
What recourse is available to a victim of sexual harassment in the workplace in Sri Lanka?
- Unsolicited sexual propositions in the workplace which are linked to benefits and career advancement, or further harassment, dismissal, etc., can be prosecuted under the Bribery Act of 1954, since it falls within the realm of bribery.
- The Constitution of Sri Lanka (1978) also provides for the non-discrimination of women and it is possible to file a fundamental rights application or public interest litigation, in order to obtain justice in the case of sexual harassment and subsequent victimization.
- Under Sections 345, 365 A and 365 B of the Penal Code, there is provision to prosecute persons who in public or in private commit or are party to the commission of any act of gross indecency with another person without his or her consent.
- Sri Lanka has also ratified:
- All eight Core Conventions of the International Labour Organisation which includes ILO Convention 111 on Discrimination (Employment and Occupation) ensuring decent work for all without discrimination
- UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
- Even though Parliament has not passed into legislation the proposed Women’s Charter, due to the dualist system operating, Sri Lanka is bound by the principles of non-discrimination contained in CEDAW and the other international conventions it has ratified on non-discrimination.
How can employers prevent sexual harassment of its employees in the workplace?
- Spearheaded by the Ceylon Chamber of Commerce and the Employers Federation of Ceylon (EFC), there is a move by Sri Lankan companies to implement a ‘Code of Conduct’ and procedures to address sexual harassment at the workplace. This Code was developed with the assistance of the International Labour Organisation (ILO).
- In many countries that have enacted legislation against sexual harassment in the workplace, the liability for sexual harassment in the workplace extends beyond the offender and renders the employer vicariously liable as well. This is a proactive means to ensure that the employer puts into place strict guidelines and penalties for sexual harassment and enforces the rules in order to avoid vicarious liability in the event of litigation.
- Employers should have a rule included in the organization’s code of conduct prohibiting sexual harassment of any kind or form.
- Employers should also indicate the type and nature of the punishment in the event, the alleged offender is found guilty of sexual harassment in the workplace.
- Employers should also contact the Employers’ Federation of Ceylon, and obtain a copy of the Code of Conduct and include the provisions therein in the organization’s code of conduct.
- If no organizational Code of Conduct exists, then the employer should adopt and publish a Code of Conduct, and display the rules and penalties against sexual harassment in the workplace, in prominent locations throughout the organization in English, Sinhala and Tamil languages.
- In the event, a complaint is filed with the management on a case of sexual harassment, then the employer is duty bound to hold an impartial inquiry into the incident, through a Grievance Committee comprising, at least fifty percent women representation, and with both parties to the complaint, together with their representatives (from a Trade Union or legal representatives).
- In the event the complainant has been traumatized in any way due to the alleged sexual harassment, then, it is the duty of the employer to ensure that psychosocial counselling is made available for the complainant. This process could also include medical leave.
What steps can an individual take to stop sexual harassment in the workplace?
- Indicate to the harasser - either orally or in writing - that his/her advances are unsolicited, unwelcome and offensive.
- It is best to file a formal complaint with the superior officer. If the unwelcome advances are by the superior officer, then go higher and file with the Human Resources Department or the Manager of the Unit. If a Grievance Committee has been established in the organization, file the complaint with them as well. If a member of a Trade Union, then file with them as well.
- A complaint can be filed with the Human Rights Commission seeking redress. Generally all complaints are handled by the Police.
- Document the incidents, dates, times and other relevant details carefully, in order to give credence to the complaint.
- If dissatisfied with the response by the management, trade union and others, then file a police complaint, for future litigation.
- Obtain the support of women’s rights organizations and non-governmental organizations involved in protecting and upholding the rights of women to lobby one’s case.
Since the offence is listed as a criminal case under the Penal Code, it will be prosecuted by the State. However, suitable legal counsel should be engaged as well. In some instances, women’s organizations/ NGOs are able to bear the cost of legal representation.
What types of punishments are provided for under the law?
The type of punishment will depend on the legal instrument under which the case is prosecuted.
Have there been any landmark cases favouring the victim of sexual harassment in the sub-region, which could be a precedent for Sri Lanka through the dualist system?
- The landmark case is in India and known as the historic case of Vishakha versus the State of Rajasthan.
- Bhanwari Devi (50) was gang raped by a group of upper class, influential men, as she was trying to stop the cruel practice of child marriage.
- She filed a case against her rapists, but did not receive justice, since they were released as a result of the dismissive attitude of her peers, village authorities, medical doctors and police.
- However, determined to seek justice for Bhanwari Devi and others like her, several women’s groups and non-governmental organizations filed a petition in the Supreme Court in 1977 under the collective platform of Vishakha and others v. the State of Rajasthan and others.
- The plaint demanded justice for Bhanwari Devi and urged action against sexual harassment at the workplace.
- The Supreme Court defined sexual harassment as any unwelcome gesture, behaviour, words or advances that are sexual in nature.
- The Court had, for the first time, drawn upon an international human rights legal instrument CEDAW, to pass a set of guidelines known as Vishakha guidelines.
- Some of the Vishakha guidelines laid down by the Supreme Court state that:
- It is the responsibility of the employer to include a rule in the company code of conduct preventing sexual harassment;
- Organizations must establish complaints or grievance committees headed by women;
- Employers must initiate disciplinary action against offenders and safeguard the rights and interests of the victim;
- Female employees must be made aware of their rights to a workplace free of sexual harassment.
- Sri Lanka too can reach out to the principles of decent work and non-discrimination cited in the various International Conventions signed and ratified by Sri Lanka in order to ensure that justice prevails even in the absence of specific national law.
What is the situation of an accused in a sexual harassment case, if false allegations have been made?
The Grievance Committee must act according to the terms stated in the Code of Conduct, and the falsely accused individual can file a defamation case in a Court of Law.