Gujarat National Law University

A
RESEARCH PAPER
ON

Sexual Harassment in workplace and compensation

SUBMITTED BY:
SUBMITTED TO :
KARAN PATEL
VIVEK DUBEY
AKSHAT VERMA

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ACKNOWLEDGEMENT

The completion of the project of this kind is not possible without the help of many. While it
is not possible to put on record the assistance and cooperation I received from all corners, I
would feel comfortable if it is not expressed vis-à-vis a selected few.

I am heartily thankful to Mr.Vivek Dubey, Assistant Professor of Law GNLU, whom

guidance and support from the initial to the final level enabled me to develop an
understanding of the subject. For topics in this project I had taken help from my seniors,
friends and teachers whom valuable support guided me till the making of the project, and I
am grateful to all of them.

Lastly, I offer my regards and blessings to all of those who supported me in any respect
during the completion of the project.

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CONTENTS

1. Introduction...........................................................................................4

2. Laws in India..........................................................................................5

3. Vishaka Dutta Case................................................................................7

4. Global Scenario.......................................................................................9

5. Foreign Case Study................................................................................10

6. Conclusion...............................................................................................12

7. Bibliography............................................................................................14

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INTRODUCTION
What is sexual harassment ?

The EEOC has defined sexual harassment in its guidelines as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical
conduct of a sexual nature when:

Submission to such conduct is made either explicitly or implicitly a term or

condition of an individual's employment, or

Submission to or rejection of such conduct by an individual is used as a basis

for employment decisions affecting such individual, or

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.

Unwelcome Behavior is the critical word. Unwelcome does not mean "involuntary."
A victim may consent or agree to certain conduct and actively participate in it even
though it is offensive and objectionable. Therefore, sexual conduct is unwelcome
whenever the person subjected to it considers it unwelcome. Whether the person in
fact welcomed a request for a date, sex-oriented comment, or joke depends on all the
circumstances.

Sexual harassment at workplace:

As more and more women are going out to work, they face an increasing risk of being
subjected to some sort of sexual harassment. Sexual harassment at the workplace is not a new
thing. Sixty per cent of working women have faced sexual harassment at some point of time
in their working lives. For every woman who raises an outcry, there are hundreds of others
who suffer in silence, quit their jobs or get transfers. For years, sexual harassment was
considered an inescapable part of a working woman's life. Now awareness is slowly rising
that no woman should meekly accept sexual harassment as part of her lot. 

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Laws In India
Sexual harassment in India is termed "Eve teasing" and is described as: unwelcome sexual gesture or
behaviour whether directly or indirectly as sexually coloured remarks; physical contact and advances;
showing pornography; a demand or request for sexual favours; any other unwelcome physical,
verbal/non-verbal conduct being sexual in nature.

According to The Supreme Court definition, sexual harassment is any unwelcome sexually
determined behaviour, such as:-

 Physical contact
 A demand or request for sexual favours
 Sexually coloured remarks
 Showing pornography
 Any other physical, verbal or non-verbal conduct of a sexual nature.

There are certain laws in India which explains offences of Sexual Harrasement under Indian
Penal Code (IPC) that may be evoked when a woman is sexually harassed. However, these
related laws are framed as offences that either amount to obscenity in public or acts that are
seen to violate the modesty of women under sections 294, 354 and 509 of the IPC. While
section 294 IPC is a law applicable to both men and women, the latter two are specifically
oriented towards women. Section 354 of IPC reads as follows:

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

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to
be likely that he will thereby outrage her modesty, shall be punished with imprisonment of
either description for a term which may extend to two years, or with fine, or with both.“

In cases where the accused sexually harasses or insults the modesty of a woman by way of
either- obscene acts or songs or- by means of words, gesture, or acts intended to insult the
modesty of a woman, he shall be punished under Sections.294 and 509 respectively.   

 Under Sec.294 the obscene act or song must cause annoyance. Though annoyance is an
important ingredient of this offence, it being associated with the mental condition, has often
to be inferred from proved facts. However, another important ingredient of this offence is that
the obscene acts or songs must be committed or sung in or near any public place.

 Section.509 of IPC, comes into effect when there is an intention to insult the modesty of any
woman by the offender by uttering any word, making any sound or gesture or by exhibiting
any object, with the intention that such word or such sound be heard, or that such gesture or
object be seen by such a woman, or by intruding upon the privacy of such a woman.

Thus, this Section requires:

1.       Intention to insult the modesty of a woman.

 2.       The insult be caused by

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i)                   Uttering any word or gesture, or

ii)                Exhibiting any object with the intention that such word,

gesture, or object be hear or seen by such a woman, or

iii)              By intruding upon the privacy of such woman.

Judicial Rulings in India

Sexual harassment at the workplace, as an issue, captured the collective consciousness of
working women, following the Shehnaz Mudbhatkal1 case. This gutsy woman worked as a
hostess for Saudi Arabian airlines. Her services with Saudi Arabian airlines were terminated
because she refused to surrender to the sexual demands made by her superior. But Shehnaz
would not give in. Filing suit, she fought for 11 years. In 1997, she was awarded full wages
and continuity of services with effect from 1985. Sadly, the airlines appealed to Bombay High
Court, which granted a stay.

However, this is not the only case of its kind. In 1994, Doordarshan (Hyderabad)
producer Sailaja Suman took director P L Chawla to court on charges of defamation, criminal
intimidation and trying to outrage her modesty. She filed two separate cases in the
metropolitan magistrate's court. Unfortunately, Suman was transferred to Lucknow. 

In another case, Nutan Sharma, a steno in the Union Ministry of Railways, was transferred,
following her complaint that R P Sharma, secretary to the Chief Operating Manager, molested
her. 

Alisha Chinai's suit against music composer Anu Malik, demanding Rs. 26,60,000 as
damages for sexual harassment, met with a similar fate. Malik filed a Rs. 2 crore defamation
suit.

But, the most well-known instance of a sexually harassed woman taking the help of the law
to teach the harasser a lesson is that of Rupan Deol Bajaj2. Bajaj was slapped on the bottom
by the then DGP of Punjab, K P S Gill. Accusing him of indecent behaviour, Bajaj fought an
8-year legal battle. The hard work paid off. Gill was convicted and sentenced to 3 months RI . 

1
1999 (1) BomCR 643, (1999) 1 BOMLR 687.
2
1996 AIR 309, 1995 SCC (6) 194.

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Vishaka Dutta Case

Vishaka and others v. State of Rajasthan and others 3:

1. Facts:
The litigation resulted from a brutal gang rape of a publicly employed social worker in a
village in Rajasthan during the course of her employment. The petitioners bringing the
action were various social activists and non-governmental organisations. The primary
basis of bringing such an action to the Supreme Court in India was to find suitable
methods for the realisation of the true concept of “gender equality” in the workplace for
women. In turn, the prevention of sexual harassment of women would be addressed by
applying the judicial process.
Under Article 32 of the Indian Constitution, an action was filed in order to establish the
enforcement of the fundamental rights relating to the women in the workplace. In
particular it sought to establish the enforcement of Articles 14, 15, 19(1)(g) and 21 of
the Constitution of India and Articles 11 and 24 of the Convention on the Elimination of
All Forms of Discrimination against Women.

2. Decision:
In disposing of the writ petition with directions, it was held that:
“The fundamental right to carry on any occupation, trade or profession depends on the
availability of a ‘safe’ working environment. The right to life means life with dignity. The
primary responsibility for ensuring such safety and dignity through suitable legislation,
and the creation of a mechanism for its enforcement, belongs to the legislature and the
executive. When, however, instances of sexual harassment resulting in violations of Arts 14,
19 and 21 are brought under Art 32, effective redress requires that some guidelines for the
protection of these rights should be laid down to fill the legislative vacuum.”

The Supreme Court Guidelines:

In light of these deliberations, the Court outlined guidelines which were to be observed
3
(1997) 6 SCC 241, AIR 1997 SC
3011, (1998) BHRC 261, (1997) 3 LRC 361, (1997) 2 CHRLD 202

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in order to enforce the rights of gender equality and to prevent discrimination for
women in the workplace.
These guidelines included the responsibility upon the employer to prevent or deter the
commission of acts of sexual harassment and to apply the appropriate settlement and
resolutions and a definition of sexual harassment which includes unwelcome sexually
determined behaviour (whether directly or by implication) such 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 a sexual nature.
Furthermore the guidelines set out that persons in charge of a workplace in the public
or private sector would be responsible for taking the appropriate steps to prevent
sexual harassment by taking the appropriate steps, including:
• The prohibition of sexual harassment should be published in the appropriate
ways and providing the appropriate penalties against the offender;
• For private employees, the guidelines should be included in the relevant
employment guidelines;
• Appropriate working conditions in order to provide environments for women
that are not hostile in order to establish reasonable grounds for discrimination;
• The employer should ensure the protection of potential petitioners against
victimisation or discrimination during potential proceedings;
• An appropriate complaints mechanism should be established in the workplace
with the appropriate redress mechanism;
• Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person-in-charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.
Finally, the court stated that the guidelines are to be treated as a declaration of law in
accordance with Article 141 of the Constitution until the enactment of appropriate
legislation and that the guidelines do not prejudice any rights available under the
Protection of Human Rights Act 1993.

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Global Scenario

Key Facts about Sexual harassment in workplace all over the world:

• A survey published in Hong Kong in February 2007 showed that nearly 25% of workers
interviewed suffered sexual harassment with one-third of them men. Among male workers,
only 6.6% reported their grievance (compared to 20% of women) because they felt
too embarrassed to face "ridicule".

• According to a 2004 report issued in Italy, 55.4% of women in the 14-59 age group
reported having been victim of sexual harassment. One out three female workers are
subjected to sexual intimidations for career advancement with 65% blackmailed weekly
by the same harasser, usually a co-worker or supervisor. Furthermore, 55.6% of women
subjected to sexual intimidation had resigned from the job.

• In the European Union, 40-50% of women have reported some form of sexual harassment
at the workplace;

• According to a survey carried out by the Australian Equal Opportunity Commission in

2004, 18% of interviewees aged between 18 and 64 years said they had experienced
sexual harassment in the workplace. Of those who experienced sexual harassment, 62%
were physically harassed and less than 37 % were likely to report the abuse;
ORK IN FREEDOM

• Research shows that the type of women most vulnerable to sexual harassment are young,
financially dependent, single, or divorced and with a migrant status. For men, those most
harassed are young, gay, and members of ethnic or racial minorities.

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Foreign Case Study

1. Bill Clinton and Monica Lewinsky:

Perhaps the most famous presidential scandal in United states's history, Bill Clinton's
affair with White House intern Monica Lewinsky escalated far beyond the Oval
Office. People all over the world watched as Clinton's presidency took a backseat to
Ken Starr's interest as to whether or not Clinton had "sexual relations with that
woman." Eventually, he became the second U.S. president to face an impeachment
trial.

2. Burlington Industries v. Kimberly Ellerth:

When Kimberly Ellerth worked at Burlington Industries, she described her
experiences as feeling "completely humiliated, embarrassed." An emotional and
mental victim of sexual harassment by her supervisor, Ellerth never experienced a
professional setback or reported the incidents to anyone at work, but according to
Court TV, the U.S. Supreme Court ruled "that workers can still bring sexual
harassment cases against employers even if the harassment is not reported and the
employee's career is never hurt.

3. Oncale v. Sundowner Offshore Services:

This ground breaking case concerned a male oil-rig worker who spent periods of time
on an oil platform in the Gulf of Mexico. According to the case, Joseph Oncale was
sodomized, threatened and humiliated by members of his crew. He reported the
incidents, but no action was taken against the offenders, and Oncale "eventually quit
— asking that his pink slip reflect that he 'voluntarily left due to sexual harassment
and verbal abuse.'" Oncale filed a sexual-harassment suit against his crew, but the
District Court of Eastern Louisiana held that as a male, Oncale was not protected
against the 1964 legislation that prohibits sexual harassment. After the decision was
appealed to the U.S. Supreme Court, however, it was reversed by a 1998 ruling that
declared that sexual harassment also "applied to harassment in the workplace between
members of the same sex.

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4. Dov Charney v. American Apparel Inc. Employees:

Dov Charney, the CEO and founder of popular clothing chain American Apparel,
is known in the fashion industry and beyond as an "unconventional," sexed-up boss,
according to The New York Times. But he could only get away with sleeping with
employees and showing up to meetings naked for so long. In 2005, three American
Apparel employees filed suit against Charney for sexually harassing them at work by
giving them sex toys, making derogatory comments and more. Many have negated the
employees' claims, maintaining that the office culture at American Apparel is
uniquely lax, and that the company's marketing strategies — designed to attract young
— sexy buyers naturally leak into the workplace.

5. Japanese Beard Pluckers:

A female employee in Japancomplained that her boss sexually harassed her when he
"forced [her] to pluck his beard." According to the Legal Herald, the man "was fined
$5,000 for his conduct".

6. Jenson v. Eveleth Taconite Co.:

Charlize Theron's starring role in the 2005 movie "North Country" tells the story of
Lois Jenson, an employee at the Eveleth Taconite Co. mine in Minnesota during the
1970s and 1980s. At the mine, Jenson and other female employees were regularly
harassed by male workers in a sexual, threatening manner. When Jenson first filed a
complaint, "her car tires were slashed," and the company refused to pay for
replacements. Through various hearings and trials that lasted well into the 1990s,
Jenson and the other plaintiffs eventually settled with the Eveleth Taconite Co. for
$3.5 million.

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Conclusion

The social development has created equal opportunities for both the gender, but the
male dominant society has tried and still tries, covertly, to prevent the progress of the
females. The research paper clearly draws analysis that this discrimination can only be
handled with proper legal and institutional framework.
The legal framework in India has remained weak due to apathy shown by the government.
Drafted way back in 2007 by the National Commission for Women (NCW), the path-
breaking “Protection of Women Against Sexual Harassment at Workplace Bill”, remains in
consultation stages. It has been shunted between the Law and Women and Child
Development (WCD) ministries more than once, recently prompting NCW chairperson Girija
Vyas to say that she was disappointed with the government’s apathy towards commission’s
legal initiatives. Though she hoped the Bill would be tabled in Parliament’s forthcoming
session, the prospects look dim.
Till the time any such act is passed by the government, the guidelines provided by the
supreme court of India, in the judgement of the case of Vishaka and others v. State of
Rajasthan and others4,must be followed at all work places. The important institutional
framework in this regard has been stated below.

Duties of the Employer and Rights of the Employees at the workplace:

All employers or persons in charge of work place whether in the public or private sector are
required to take appropriate steps to prevent sexual harassment in the organization and
undertake the following steps:

There should be an express prohibition of sexual harassment at the work place and this
prohibition should be notified, published and circulated in appropriate ways so that awareness
of the rights of female employees is created in the Company. For instance, company can
incorporate the policy related to sexual harassment in its Employee Handbook/Manual and
make it available to each of its employee on her/his joining the services of the company. For
the employees who are already working with the company, the management may circulate the
revised and amended Employee Handbook (containing the policy against sexual harassment)

4
(1997) 6 SCC 241.

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or alternatively make it available online on intranet. It is advisable to seek acknowledgement

receipt of the Handbook from the employees. If the management has concerns related to
publishing the policy on prominent places on notice boards of the Company, inclusion of the
policy in the Employee Handbook and circulation of this Handbook to each of the employees
should be undertaken.

Appropriate work conditions are provided in respect of work, leisure, health and hygiene to
further ensure that there is no hostile environment towards women at work places and no
employee women have reasonable grounds to believe that she is disadvantaged in connection
with her employment.

Appropriate disciplinary action should be initiated by the Company in the event of a

misconduct.

Complaints Committee:

An appropriate complaint mechanism would need to be created for the redress of the
compliant made by the concerned employee. The complaint mechanism would need to be
adequate to provide, where necessary, a Complaints Committee, a special counselor or other
support service.The Complaints Committee would need to be headed by a woman and not
less than half of its members would need to be women. Further, to prevent the possibility of
any undue pressure or influence from the senior levels, such Complaints Committee would
need to involve a third party, either NGO or other body who is familiar with the issue of
sexual harassment.The Complaints Committee must make an annual report to the
Government department concerned of the complaints and action taken by them.

Employee's Right:Employees should be allowed to raise issues related to sexual harassment

at employee meetings and at other appropriate forums and it should be affirmatively
discussed in employer-employee meetings.

In view of the aforesaid Guidelines, the Company would need to observe the aforesaid norms
and circulate the guidelines against sexual harassment, may be as part of its Employee
Handbook and ensure compliance of the guidelines laid down under the matter of Vishaka &
othr. v. State of Rajasthan by the Supreme Court of India.

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