Sexual Harassment at the Workplace: Emerging Problems and Debates

Author(s): Sheba Tejani

Source: Economic and Political Weekly , Oct. 9-15, 2004, Vol. 39, No. 41 (Oct. 9-15, 2004),
pp. 4491-4494
Published by: Economic and Political Weekly

Stable URL: https://www.jstor.org/stable/4415633

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 Commentary

Sexual Harassment
a complaint of sexual harassment. Al-
though the problems with the draft bill are
not limited to these, we will not go into

at the Workplace
a full-blown critique here.

Problems with Grievance

Mechanisms
Emerging Problems and Debates
The composition of CCs, prescribed by
Vishaka, should be such that: a woman
Sexual harassment is rooted in cultural practices and is exacerbated
should be the chair, women must consti-
by power relations at the workplace. Unless there is enough emphasis
tute no less than 50 per cent of its members
on sensitisation at the workplace, legal changes are hardly likelyandto one representative from a non-
be successful. Workplaces need to frame their own comprehensivegovernmental organisation (NGO), who is
familiar with the issue, must be on board.
policies on how they will deal with sexual harassment. Instead of
Though this does not guarantee that an
cobbling together committees at the court's intervention, a system impartial
and enquiry will take place, it puts
a route of redress should already be in place. The draft bill on sexualin place some safeguards that might have
harassment attempts to address some of the complexities of this issue,a bearing on how the complaint is handled.
Most committees have not adhered to these
but much more clarity and specificity is needed to avoid the creation of
guidelines and have in fact been used by
a law that might need another extended campaign of reform.
management to threaten, intimidate and
force women, who complain of sexual
SHEBA TEJANI redressal forum for women who face sexual harassment, into silence or submission,
harassment. The committees are to be particularly when the accused belongs to
It is seven years since the Supreme instituted by employers at the workplace the top rung of the hierarchy. Where the
Court, in the absence of appropriateand are to conduct preventive activitiesaccused as is a workman, CCs might be a
civil or penal laws, laid down thewell. This is an important development more effective route as sexual harassment
Vishaka guidelines to deal with sexualand, in many ways, sets the precedent for could be treated as misconduct and dis-
harassment at the workplace. It was aaddressing the problem. For one, CCs ciplinary can action can be taken according to
landmark event as sexual harassment was be an effective way to speedily resolve the Industrial Disputes Act, 1947 (IDA),
legally recognised, as such, for the first minor or major complaints of harassment, subsequent to a domestic enquiry. How-
time, and employers and institutions where women otherwise would have had ever, the IDA does not apply to manage-
were required to take specific steps forto go to a court of law. They are also an ment. Similarly, central and state workers
prevention and redressal. However, the acknowledgement of the fact that sexual can be covered under the relevant service
guidelines, for most part, continue to harassment exists, and that it is unaccept- laws, but for private sector employees the
languish on paper. Apart from public sectorable, thus making it possible for women only recourse available for women would
bodies, which have been forced by govern- to approach the appropriate fora when be to file a civil suit in a court of law if
ment resolutions to implement the guide-it happens. Also, by bringing the reso- the CCs fail in their duty.
lines, and some large private companies lution of the matter within the ambit of Several women's groups moved the apex
and educational institutions, Vishaka has the workplace, the site at which the court through a writ petition, 'Medha Kotwal
been a non-starter. The reasons for this are problem occurs, it increases the account- and Others vs Union of India', in 1999,
many: first, entrenched patriarchal atti-ability of workplaces in general. Under asserting that complaints committees were
tudes prevent sexual harassment fromthe guidelines, a woman can also, how- not being properly instituted, while also
being seen as a serious offence; worse,ever, opt for criminal proceedings in a seeking expansion of the coverage and
they invert the stigma of harassment oncourt of law, if she so desires. scope of Vishaka. The matter is still in the
women themselves. Second, the vague- This paper attempts to highlight some courts. Meanwhile, under pressure from
ness of the guidelines on the internal of the problems in the working of the the courts, the government has promised
grievance mechanism has left organisationspresent grievance mechanism, in the light to deliver a sexual harassment legislation
with a great deal of room to manipulateof similar provisions that have been made in six months. However, women groups
the process or bypass it altogether. Third,in a draft sexual harassment bill submitted are upset because members of the sexual
a partial result of the first and second, isby the National Commission on Women harassment bill drafting committee, con-
the failure of organisations to treat sexual (NCW) to the HRD ministry in September stituted in April 2003, were not consulted
harassment as a policy matter and inte-2004. It discusses some of the areas in when NCW submitted its draft, which
grate it into their service rules. which debate and clarification are neces- they believe is incomplete and inadequate.
The guidelines designate in-house com- sary to avoid some of the situations that Let us examine a few recent incidents
plaints committees (CCs) as the primaryare likely to come up when a woman files of sexual harassment, where women have

Economic and Political Weekly October 9, 2004 4491

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made complaints, and the processes that shaming when she complained to thewith dire consequences when she did not
ensued thereafter. Writing about MS women's cell of Mumbai University thatcomply. This team found her "guilty of
University, Chandra (1999) had noted the the principal was sexually harassing her.misconduct and of making baseless alle-
readiness of the complaints committee, The non-teaching staff and students councilgations against the company" ('Woman
convened to investigate a PhD student's were up in arms against her and they Alleges Abuse at Work, Gets the Sack',
complaint of sexual harassment by her declared an indefinite strike in support ofTelegraph, April 29,2004). She was trans-
supervisor, "to accept the 'collapse' of any the principal on September 1, even when ferred to Lucknow and, when she went to
possible evidence on behalf of the com- no enquiry into the allegation had beenthe press with the story, her services were
plainant" (p 1490). This seems to be the made. The groups raised slogans againstterminated. In spite of intervention by the
'sine qua non' of women's attempts to the complainant during the strike and putMaharashtra State Commission for Women
obtain some semblance of redress for sexual up posters saying that she had shamed the(SCW), the complaints committee that was
harassment grievances. A woman employee college and that they backed the principal.subsequently formed blatantly flouted the
of NALCO, who accused its chairperson The management had done nothing to allowVishaka guidelines and was not acceptable
and managing director of molestation, was willing students and teachers access toto the complainant.
put through a harrowing investigation at classrooms and it became evident that they It is clear that women are and will be
the hands of the CC ('HC Stays 'Vulgar' tacitly supported these activities [Gokhaleraising complaints of sexual harassment in
NALCO Probe into Sexual Harassment', et al 2004]. The Mumbai High Court hadan extremely hostile environment with the
The Indian Express, April 23, 2004). The to intervene and ask the college to recon-risk of backlash, humiliation, injury -
committee insisted on a 'physical demon- stitute the CCs that had been formed earlier, mental and physical - and a complete loss
stration' of the molestation and asked her as it was heavily biased against the com-of confidentiality. The reaction of most
prejudicial questions such as whether sheplainant and she had refused to appearinstitutions is to bury the matter, vilify and
had consumed liquor on the night of thebefore it. target the woman or hurriedly convene a
incident. The high court finally threw out An employee of Sahara Manoranjancommittee to conduct a token, slipshod or
the findings of the committee saying they herself became the target of a 'fact-finding'completely adverse investigation. This acts
were 'vulgar', 'totally biased', and intentmission when she lodged a complaint withas a severe deterrent for women to report
on proving that the petitioner was a 'liar'the police about a colleague's misdemeanour.the matter, not to mention the professional
('HC Slams Probe into NALCO Molestation This incident came at the back of repeatedand pecuniary consequences of revelation.
Case', The Times of India, April 23,2004).harassments by top management, which hadThis is exacerbated when the accused is
At Lala Lajpat Rai college, Mumbai, a offeredher'quidproquo' benefitsforfavoursthe owner or part of management, as
teacher suffered something like a publicof a sexual nature, and then threatened her consequences can be harsher and the

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4492 Economic and Political Weekly October 9, 2004

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possibilities of impartial inquiries much
ensure that the organisation does not have is every chance that the first recourse
curtailed. How these complaints are some association with the employer, or that available to women who face sexual ha-
handled also have a lot to do with how it even has some expertise in dealing with rassment will be reduced to a meaningless
male privilege is institutionalised within
issue. Further, many organisations, includ- or injurious exercise, as described in the
the workplace, and patriarchal attitudes ing charitable and religious ones. could previous section. The draft bill has tried
qualify as an 'NGO'. Does that mean they to prevent this to some extent: it has made
that regard women as provocateurs or mani-
pulators for private/professional gains. could be placed on the committee? It is it the duty of the employer to ensure that
also important that women have the choice the complainant, supporter or witness is
Debates around Draft Bill to bypass the ICC, if they feel it will be not victimised, harassed or discriminated
ineffective, and go directly to the LCC; but against in the proceedings, and that the
this option is not available in the draft bill. conditions of service do not change for
Allthough the draft bill is more compre-
hensive than Vishaka, it contains ambi-According to the proposed mechanism, any of the above, prior to or during the
guities and omissions that need to be ad-
informal sector workers can go directly to complaint procedure.
the district level LCC, which will be chosen
dressed to ensure that the system works However, this still does not amount to
for a variety of women workers, andfrom
that a group of experts. The group of positive and specific guidelines for con-
women's rights are protected at all times.
experts itself will be constituted by a special ducting an inquiry, including what kind of
This is especially so in terms of thedistrict
lack officer, no less than the rank of questions can be posed to the complainant
asssistant labour commissioner, who will
of specificity of procedures of complaint and how, and the permissible grounds for
for different workers and the neglect ofalso thereceive complaints. invalidating a complaint. For instance, the
process of inquiry. The Vishaka guidelines An LCC committee at the district level Kotwal petition has asked that questions
had left informal workers, who make might
up still be too remote, inaccessible and
of a delicate nature be routed through the
the bulk of the workforce, outside its intimidating for a variety of rural andNGO representative or special officer of
purview. The present bill has included a informal workers. An arrangement at the the department, with the option of present-
variety of formal and informal workplaces block level could also therefore be con- ing them in writing. Women's groups have
within its scope, but it is much more difficult sidered. To cover informal workers com- suggested that the special officer should
to institute rules in occupations where there prehensively, different grievance mecha-vet questions that the accused might want
is no clearly identifiable employer, even nisms and related procedures for each to ask the complainant. Again, the lack of
workplace at times, and where the nature 'workplace' will need to be defined sepa-an eyewitness should not be grounds for
of work itself might be seasonal. Consider- rately. The idea of designating existing throwing out a complaint, for obvious
able time has been spent by women's tripartite occupational boards, such as thosereasons. There is every likelihood that a
groups in coming up with solutions to for 'mathaadi' workers and security guards woman's personal and/or sexual history
expand the notion of the workplace, and as forums for receiving complaints has might be used to prove' that she is of
to create structures of redress for different been suggested. This is to ensure that 'immoral' character and to thus dispose of
categories of workers. familiar occupational structures that areher complaint. This has been a familiar
The present draft bill incorporates a two- already in place are used, and that there istactic in the prosecution of rape and it is
tiered grievance mechanism for sexual no ambiguity or duplication in functions.only after decades of campaigning that
harassment: an internal complaints com- Third parties or service users in the caseSection 155(4) of the Indian Evidence Act,
mittee (ICC), akin to CCs; and another of hospitals, restaurants, banks, etc, which which permitted the use of such evidence,
district level body called the local got only a passing mention in Vishaka, arewas deleted in 2002. How will the new bill
complaints committee (LCC). It is not clear also neglected in the draft bill. The com- take such precedents into account?
how the CCs will be constituted in this case plainant could, for instance, take recourse The rights of a woman during the in-
and how their working can be free from in a consumer court, under the Consumer quiry, as also of the defendant, need to be
interference or manipulation as they are to Protection Act, on grounds of deficiency spelled out. The bill provides for separate
be constituted by the owners. Women's of service and the relevant provisions need proceedings for the accused and the com-
groups have suggested that standing com- to be made. But when one service user is plainant, and allows the complainant to be
mittees, which do preventive and awareness harassed by another on the same premises, accompanied by one representative. But it
raising work, can be formed at the work- a way of holding the service provider is not clear if that representative will be
place and that complaints committees of accountable needs to be worked out. one of the complainant's choice, or whether
fixed tenures can be constituted from them. Women's groups have also mooted it the
can be an external party or even a lawyer.
The important point is that the committee idea of designating an ombudspersonOne
forway to avert the re-victimisation of
should already be formed when a woman sexual harassment in custodial situations,the complainant is to shift the burden of
makes a complaint, rather than commenc- such as in police stations, court premises,
proof to the accused, once it is shown that
ing the whole process at that point, and remand homes, etc, as the nature of crimes
the alleged act took place.
thus risking bias or delay. Of course, this there tend to be very serious and need to
should come with the option of appeal, if be dealt with separately. However, these
Conclusion
the complainant feels that a particular find no mention in the draft bill.
member might be biased against her. The Even when such platforms are created The upshot is that sexual harassment is
role of the NGO representative on the they will fail to become effective, and thus rooted in cultural practices and is only
committee is also crucial as he or she will credible, without due attention to the exacerbated by power relations at the
be the only 'external' member and is thus process of inquiry and without express workplace. Unless there is enough emphasis
expected to act most independently. But guidelines to make them as fair and painless on sensitisation, awareness and prevention
simply being 'non-government' does not as possible. In the absence of this, there at the workplace, legal changes are hardly

Economic and Political Weekly October 9, 2004 4493

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likely to be successful. This cannot happen
unless workplaces, howsoever they are
defined, frame their own comprehensive
policies on how they will deal with sexual
harassment. Instead of cobbling together
committees at the court's intervention, a
system and a route of redress should al-
ready be in place. Similarly, the people
who will be dealing with complaints, from
committee members to district special
officers, need to be trained and sensitised
to handle the matter. The draft bill on
sexual harassment attempts to address some
of the complexities of this issue but much
more clarity and specificity is needed to
avoid the creation of a law that might need
another extended campaign of reform. Still,
some of the inherent contradictions in
constituting grievance mechanisms within interest rate does not change. In addition,
workplaces, that are ultimately hierarchical, there may be a floating rate, a combination
are likely to remain, although this does not of fixed and floating rates, and equity
mean we should dispense with them. [1E linked deposits. Nevertheless fixed rate
deposits are the bedrock upon which re-
[Many thanks to Chayanika and Sandhya Gokhale
tirement saving schemes are generally
for valuable insights, dicussions and feedback.]
founded. It is primarily through fixed rate
schemes and annuities that depositors are
References
able to (i) ensure stable interest income to
Chandra, Sudhir (1999): 'Gender Injustice at MSmeet expenses during retirement or
University', Economic and Political Weekly, (ii) build up a certain accumulated amount
Vol 34, No 24, June 12-18, pp 1490-91.
(principal plus interest) and thus adequately
Gokhale, Sandhya, Meena Gopal and Chayanika
plan for retirement, based on steady com-
(2004): Visit to Lala Lajpatrai College of
Commerce following Media Reports of an pounding.2 However, various PF deposits
Alleged Callfor Strike by Non-Teaching Staff
- meant to be the primary source of retire-
and Students: A Report, unpublished report,ment income in India - are not fixed rate
Forum Against Oppression of Women and
India Centre for Human Rights and Law,deposits. The interest rate is periodically
Mumbai, September. reset, by the government. But this was not
generally known, until the PPF rate was
lowered from 2000 onwards, following a

Need for Long-term,

long period from 1989 to 2000, during
which the PPF scheme paid 12 per cent
interest.

Fixed-Income Provident
Misperceptions about the PPF scheme
have been widespread not just among lay
people, but even among the financially

Fund Deposits
knowledgeable. To cite a well known
personal finance expert, who has explained
how PPF deposits, after five years, can be
fully 'recycled' solely for tax benefits,
While it is necessary to align returns on small savings with other "This is an annuity of a term of 15 years,
requiring 16 contributions" [Shanbhag
interest rates in the economy, a simplistic focus on lowering savings
1996:137]. Subsequent break-even cal-
rates overlooks fundamental weaknesses in provident fund schemes. culations by this author comparing the
The option of long-term, fixed-income PF deposits, which are pay-off on PPF, versus the fixed rate
necessaryfor small investors planningfor retirement, is not available.
National Saving Certificate indicate that
he is assuming the PPF pays a fixed rate.
VIVEK MOORTHY This author shares the market perspec- Another eminent financial management
author and personal finance writer states,
tive regarding the needed, continuing align-
"PPF deposits earn a compound rate of
rT he reductions in the interest ment of relevant small savings (SS) and
rates on the Public Provident Fund interest of 12 per cent pa [Chandra
provident fund (PF) rates to avoid fiscal
(PPF) and associated schemes (in 1997:115], instead of stating that PPF
bankruptcy. 1 But a simplistic focus only
particular, the Employees Provident on lowering rates obscures a fundamental
deposits earn compound interest, currently
Fund) since 2000 have been heartily weakness in the PF schemes which needs at 12 per cent pa.
welcomed by most economic analysts over to be highlighted. One can strongly insist Even after the PPF rate was lowered,
the years. After all, interest rates on these that PF rates should be determined bymany depositors, based on my casual
deposits need to be aligned with other economic fundamentals, and that deposi-enquiries, continue to think that the scheme
pays a lower interest rate on new balances,
interest rates in the economy that, until tors cannot be arbitrarily given 'adequate'
this year, have been falling for several and 'fair' (euphemisms for high) returns. but 12 per cent on balances invested prior
years. Not doing so would fiscally Nevertheless one can be critical of the manner to 2000. In the RBI Handbook of Statistics
weaken the government of India, and on
in which interest rates and payments on these the Indian Economy (2004), in Table
bankrupt the Employee Provident PF deposits, and more so, compulsory EPF 124, titled 'Small Savings Schemes in
Fund Organisation (EPFO) in which de- deposits have been made, and are still beingForce', the way the information is pre-
posits of workers have been placed. From made. Such a criticism, and the rationalesented does nothing to dispel the view that
this realistic market-oriented perspec- for fixed rate PF deposits is outlined below.PPF is a fixed rate instrument. For 10
tive, the ability of the finance minister instruments, Table 124 lists the prevailing
to push through a reduction in the Em- Our Peculiar 15-year Floating interest rate, the term of deposit, tax status
ployee Provident Fund (EPF) rate from Rate Deposit and other features, but does not specify
9.5 per cent to 8.5 per cent in August 2004, which are fixed and which are floating. Of
despite the opposition from its Left The world over, retirement schemes are
these, only the post office savings bank
coalition members, is long overdue and structured to provide fixed income so thataccount and the PPF pay floating rates (see
7ryplonmA
for the term of any given deposit, the the table, last row added by author).

4494 Economic and Political Weekly October 9, 2004

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