Neeta Raymond presents a practical guide
Combat Law, Volume 2, Issue 3 - Sexual Harassment affects all women in some form or the other. Lewd remarks, touching, wolf-whistles, looks are part of any woman?s life, so much so that it is dismissed as normal. Working women are no exception. In fact, working women most commonly face the backlash to women taking new roles, which belong to male domains within patriarchy. Sexual Harassment at work is an extension of violence in everyday life and is discriminatory, exploitative, thriving in atmosphere of threat, terror and reprisal.
Sexual harassment is all about expression of male power over women that sustain patriarchal relations. It is used to remind women of their vulnerability and subjugated status. In a society where violence against women, both subtle and direct, is borne out of the patriarchal values operating in society, force women?s conformity to gendered roles. These patriarchal values and attitudes of both men and women pose the greatest challenge in resolution and prevention of sexual harassment.
Studies find that sexual harassment is still endemic, often hidden, and present in all kinds of organisations. Yet it is still not always viewed as a problem, which has to be systematically tackled. The issue is of concern for both women and the employers as studies show that sexual harassment touches lives of nearly 40-60% of working women.
Thus, combating sexual harassment involves developing understanding of what is sexual harassment and change of attitudes in all- be it employees, colleagues, friends, administrators, employers or the law makers.
Sexual Harassment: The Law
Sexual harassment has been recognised as most intimidating, most violating form of violence since long in countries like UK, USA and many countries have not only taken note of how degrading experiences of sexual harassment can be for women as well as employers but have adapted legislative measures to combat sexual harassment.
In India, it has been only six years since sexual harassment was for the first time recognised by The Supreme Court as human rights violation and gender based systemic discrimination that affects women?s Right to Life and Livelihood. The Court defined sexual harassment very clearly as well as provided guidelines for employers to redress and prevent sexual harassment at workplace.
While the Apex Court has given mandatory guidelines, known as Vishaka Guidelines, for resolution and prevention of sexual harassment enjoining employers by holding them responsible for providing safe work environment for women, the issue still remains under carpets for most women and employers.
Vishaka guidelines apply to both organized and unorganized work sectors and to all women whether working part time, on contract or in voluntary/honorary capacity. The guidelines are a broad framework which put a lot of emphasis on prevention and within which all appropriate preventive measures can be adapted. One very important preventive measure is to adopt a sexual harassment policy, which expressly prohibits sexual harassment at work place and provides effective grievance procedure, which has provisions clearly laid down for prevention and for training the personnel at all levels of employment.
What Is Sexual Harassment?
According to The Supreme Court definition, sexual harassment is any unwelcome sexually determined behaviour, such as:-
Sexual Harassment takes place if a person:
It is sexual harassment if a supervisor requests sexual favours from a junior in return for promotion or other benefits or threatens to sack for non-cooperation. It is also sexual harassment for a boss to make intrusive inquiries into the private lives of employees, or persistently ask them out. It is sexual harassment for a group of workers to joke and snigger amongst themselves about sexual conduct in an attempt to humiliate or embarrass another person.
Quid pro quo and hostile work environment are the two broad types of sexual harassment.
Sexual harassment at workplace is generally classified into two distinct types. 'Quid pro quo', means seeking sexual favours or advances in exchange for work benefits and it occurs when consent to sexually explicit behaviour or speech is made a condition for employment or refusal to comply with a 'request' is met with retaliatory action such as dismissal, demotion, difficult work conditions. 'Hostile working environment' is more pervasive form of sexual harassment involving work conditions or behaviour that make the work environment 'hostile' for the woman to be in. Certain sexist remarks, display of pornography or sexist/obscene graffiti, physical contact/brushing against female employees are some examples of hostile work environment, which are not made conditions for employment.
UNWELCOME is the key in defining sexual harassment. It is the impact and effect the behaviour has on the recipient that will define the behaviour as sexual harassment.
What is a workplace? A workplace is any place where working relationships exist, where employer ? employee relations exist.
Sexual Harassment: Prevention and Resolution
Patriarchal attitudes and values are the biggest challenge in implementation of any law concerning women in our society. Combating these attitudes of men and women and the personnel involved /responsible for implementation of laws and systems is most crucial in prevention of unwanted sexual behaviour. Preventing and avoiding sexual harassment involves all levels of employees/persons in any oganisation-employees and colleagues, management and bodies like trade unions. Most importantly it requires for the employer to act before a problem occurs.
Steps Employers Can Take to Prevent Sexual Harassment A policy / procedure designed to deal with complaints of sexual harassment should be regarded as only one component of a strategy to deal with the problem. The prime objective should be to change behaviour and attitudes, to seek to ensure the prevention of sexual harassment.
As an employer know the following:
I] First and foremost, acknowledge that it is your legal responsibility to provide safe working environment for women free from sexual harassment and discrimination and that you can be held liable for sexual harassment by employees.
II] Know that sexual harassment can have a devastating effect upon the health, confidence, morale and performance of those affected by it. The anxiety and stress produced by sexual harassment commonly leads to those subjected to it taking time off work due to sickness, being less efficient at work, or leaving their job to seek work elsewhere.
III] Understand the reasons why women remain silent about sexual harassment. An absence of complaints about sexual harassment does not necessarily mean an absence of sexual harassment. It may mean that the recipients of sexual harassment think that there is no point in complaining because:
IV] Recognise the tangible and intangible expenses and losses organisations experience:
The best way to prevent sexual harassment is to adopt a comprehensive sexual harassment policy. The aim is to ensure that sexual harassment does not occur and, where it does occur, to ensure that adequate procedures are readily available to deal with the problem and prevent its recurrence.
SEXUAL HARASSMENT POLICY
I] Adopting Sexual Harassment Policy:
What should be included in an anti-harassment policy? A basic policy should set forth the following:
Policies and procedures should be adopted after consultation or negotiation with employee representatives. Experience suggests that strategies to create and maintain a working environment in which the dignity of employees is respected are most likely to be effective where they are jointly agreed. .
II] Communicate Policy
Issue a strong policy from the top authority against sexual harassment taking a "zero tolerance" approach Make sure it gets out to all your employees either through the employee handbook or in memo form or with pay packets or with appointment letter. Have the employees sign it to acknowledged that they received and read the policy. The policy can also be posted in the workplace. If you have employees whose primary language is not English, have your sexual harassment policy translated or communicate to them in their primary language. Discuss the policy with all new employees Ensure that third-party such as suppliers and customers are aware of your sexual harassment policy Review the policy with your employees on a regular basis
III] Enforce Policy Take complaints of sexual harassment seriously and investigate all sexual harassment charges quickly and thoroughly and professionally Maintain accurate records of the investigation and the findings Make sure employees who bring charges do not face retaliation Ensure confidentiality and time bound response to complaints. Take immediate action when sexual harassment is discovered or suspected Discipline appropriately any employee found to have engaged in sexual harassment Safeguard your employees from third-party work-related sexual harassment
Complaints Channels need to provide different routes that employees can take to file complaints; i.e., contacting the responsible authority for sexual harassment, a supervisor, calling a hotline, complaining through email, etc. Organisations need to focus on the plight of the average individual. A policy is useless unless people use it, and most research indicate that a small fraction of employees ever say or do anything about harassing behaviour.
Informal methods of resolving complaints must be part of the complaints mechanism as 1. the objective is to end the harassing behaviour at the lowest possible (which is the most cost effective, as well) 2. many complaints can be resolved effectively and positively through informal methods. Informal options act as a buffer or filter, save bad blood, prevent the office environment getting uncomfortable for all, if employees can be advised as to how to handle the situation before it gets out of hands. Platforms to resolve complaints or to stop harassing behaviour must be provided before the complaints escalate into full-blown, formal complaints. The Supreme Court guidelines impose an obligation on the employer to set up a Complaints Committee to deal with the cases of harassment. Such a committee should: *be headed by a woman *have half its members as women *include a third-party representative from an NGO or any other agency conversant with the issue of sexual harassment (to prevent undue pressure from within the organization with respect to any complaint).
Employers need to set up a redress mechanism/complaints committees as per Vishaka guidelines. First Contact Persons from within the Committee or otherwise should be appointed who could try to resolve the complaint informally first before the complaint goes to the formal channels of complaints committee. The organisation needs to put down clearly, certain non-negotiables for the complaints committees for effective resolution of complaints.
Desired Qualities Of The Members Of Complaints Committee:
Selection of the Complaint Committee members is extremely important as in most cases the committee members, if in sub-ordinate position of power at workplace to that of accused, find it very difficult to diligently carry out the responsibilities bestowed on them as heads or members of the Committee, against the superiors.
The Complaints Committee must remember:
Complaints committees: Do's and Don'ts :
Other things the Complaints Committee need to do
Take your employees with you. Educate them about the issue and promote a healthy discussion of the policy.
Sexual Harassment Awareness Training
The setting up of a complaints committee and an anti-sexual harassment policy lays a strong foundation for a sexual harassment free workplace. However, effective training programmes are essential to sensitise/train all their staff members, men and women, to recognise sexual harassment, deal with it when it occurs and prevent it. The training programme is the best way to ensure proper understanding and implementation of your policy. It is the best forum to communicate to employees what behaviour is acceptable and what is not, in a non-threatening atmosphere of mutual learning. Training for the members of the Complaints Committee and others who are going to be instrumental in implementing the policy, is very essential. Their training should include a component of gender sensitization, along with the procedures for taking complaints, and for enquiry, etc.
Conduct yearly meetings with your supervisors to review the sexual harassment policy, and to make sure that they understand that an employee does not need to suffer negative consequences in order to make a complaint of sexual harassment. Inform the supervisors that even mild to moderate sexual jokes or statements can create an atmosphere of hostility that will make some employees uncomfortable, and could lead to the creation of a hostile work environment.
Sexual harassment training for all employees should address perceptions and understanding of sexual harassment, impact of sexual harassment on individuals and workplace, understanding the policy and complaints mechanism. The training for Complaints Committee should address, in addition to these, the procedures of investigation, skills necessary for enquiries, documenting the procedures.
Setting up a mechanism does not mean that there is sexual harassment in your workplace. Prevention is always better than cure, and being pro-active always helps. Along with performance, change in employees' behaviour patterns also deserves employer's close scrutiny.
Conducting Surveys - Conducting time-to-time surveys is helpful to identify and prevent factors/situation leading to incidence of sexual harassment. The survey can be done anonymously and should be distributed with a copy of the company's sexual harassment policy. The survey can simply ask the employees (male and female) if they have experienced any form of sexual harassment during the past year. The survey also helps to show that the organisation is actively engaged in preventing and correcting sexual harassment.
COMMITMENT FROM TOP:
Commitment is shown through enforcement and action by the responsible authorities. Even the most comprehensive sexual harassment policies and procedures are bound to fail if a company does not enforce them quickly, consistently, and aggressively. To be effective, organisations must take sexual harassment seriously. They need to make certain that personnel responsible for enforcement conduct prompt, thorough, and documented investigations of all complaints, even those that appear trivial. Organisations should take action that is reasonably calculated to end the harassment. Such action must be directed toward the harasser, and may include verbal warnings, written warnings, job transfers, suspension of employment, and, if necessary, termination.124
Employers should also keep tabs on their supervisors. This can be accomplished by means of monthly meetings with higher management, unscheduled spot checks, or periodic sexual harassment training sessions with the implementing authorities.
PRACTICES CONSISTENT WITH POLICIES:
Organisations must place just as much emphasis on reporting responsibilities and mechanisms as on the policy itself.
Setting a precedence - Even if the accused is a senior executive/ a partner/any other person who is an asset to the company, and brings in a lot of business, it is essential that he be punished if found guilty, as this sends out a strong message that the company will not tolerate any harassment by anyone. .
What Steps Can Employees Take To Prevent Sexual Harassment?
In Back Off! How To Confront and Stop Sexual Harassment and Harassers, Martha Langelan recommends taking these steps:.
Dealing with the Harasser upfront:
Other steps employees can take:
Speaking out: Speaking about sexual harassment is an effective tool in combating it. While speaking about it, the problem becomes visible, it is acknowledged that it exists, and this in turn leads one to take effective measures against it. Speaking about sexual harassment also gives an opportunity to clarify by this about it. It helps in changing attitudes of people towards this issue. Speaking about it creates an enabling environment for the victim to speak out. It mobilises public opinion against it. It makes it difficult for a potential harasser to commit the crime. It equips people with information as to what is to be done in such a case.
Speak up at the time: Be sure to say "NO" clearly, firmly and without smiling as that is the best way to let the harasser know that his behaviour is offensive. Objecting to the behaviour when it occurs helps if you decide to file charges later.
Keep records: Keep track of what happens in a journal or diary and keep any letters or notes or other documents you receive. Write down the dates, times, places, and an account of what happened. Write down the names of any witnesses. Write a letter. People have successfully stopped sexual harassment by writing a letter detailing the behaviour that is offensive and asking the person who is harassing them to stop the behaviour. The letter should be polite, unemotional, and detailed. Such a letter seems to be more powerful than a verbal request. The recipient of the letter seldom writes back; the person usually just stops the behaviour.
Set your own boundaries: Say "NO" emphatically and clearly when you are asked to go places, do things, respond to questions, or engage in situations that make you uncomfortable. Do not worry about offending the other person or hurting his or her ego. Take care of yourself first.
Be aware of situations and people who may harm you: Don't ignore other's warnings about particular people or social settings. Acknowledge their concern for you and for themselves.
Trust your own instincts about possible danger: In an uncomfortable situation, be direct and honest, and remove yourself from the situation immediately. Regardless of your previous behaviour or signals you may have given earlier, you have the absolute right to halt any sexual exchange at any time. Accept this right and act on it.
Tell someone: Being quiet or stoic about sexual harassment lets it continue. Talk to other co-workers; you may not be the only one harassed by this person. Do not blame yourself and do not delay.
Create a Witness to the behaviour: Inform a trusted colleague and try to insure that s/he is an eye or ear witness to an situation where you are being sexually harassed. This will be useful later if you chose to file a formal complaint. Send a copy of sexual harassment policy / rules to the harasser. If your workplace already has an anti sexual harassment policy or the conduct rules of your institution prohibit sexual harassment, send a copy of the institution policy/conduct rules to the harasser with the appropriate sections underlined.
Talk to a union: If you are a member of a labour union, talk to your union representative.
Get a medical check-up: If you have been raped or physically assaulted, go for a medical check-up. Obtain a medical report. This is important, should you decide to pursue a legal case.
Report sexual harassment to the appropriate person in the organization: Explore the different avenues available to you and file a formal complaint if necessary. If your organisation does not have a policy, ensure that your employer formulates an anti-sexual harassment policy and carries out all the connected tasks.
Documenting the harassment is important for use as evidence in a case or complaint. You should: Photograph or keep copies of any offensive material at the workplace. Keep a journal with detailed information on instances of sexual harassment. Note the dates, conversation, frequency of offensive encounters, etc. Obtain copies of your work records (including performance evaluations) and keep these copies at home
Other documents that you should have: A company policy and procedure manual is very important to have. The company's documented policies on sexual harassment, discrimination, performance appraisals, termination, affirmative action plans can be very important to show their stated policies versus their actions. Company newspapers, annual reports, pictures of its top executives, posters, company credo, company surveys are important to show the environment and its hostility towards women.
Take all letters of commendation, awards, thanks you's and anything at all that will corroborate your positive job performance. Pay special attention to documents that your superiors have provided lauding you and your work. If possible, ask your clients, staff, and peers for letters of commendation.
Every document that you use during trial must be authenticated by a witness. Keep this in mind during your depositions when the defence asks you where you obtained a document. If you are not clear about where you got the document, and who can authenticate it, you will not be able to use it during your trial.
What can you do as a colleague:
It is important that you:
As an employee: If your behaviour offends an employee, stop that behaviour. Ask yourself:
What steps can Trade Unions take to prevent sexual harassment:
There are a number of measures that unions can take to combat sexual harassment. The goal is to make union members sensitive to the problem and to create a climate to discourage sexual harassment and, if it occurs, a climate where victims will feel comfortable turning to the union for assistance. Trade Unions in unorganised sector can play a definite and vital role in helping set up complaints mechanism and instituting systems/channels that could provide forum for recipients of sexual harassment in unorganised sector to complain.
If you are a member of a trade union:-
The issue of sexual harassment needs understanding, assessment, sensitivity and commitment from all quarters but mostly from the senior managerial authority as their commitment and action can achieve the aim of prevention and effective resolution of sexual harassment at workplace and a gender friendly, discrimination free workplace.Neeta Raymond
Combat Law, Volume 2, Issue 3
August-September 2003 References
Vol #2, Issue #3, Combat Law
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