|Sexual harassment at the workplace can be a costly business as Phaneesh Murthy, US-based head of sales, communication and product services at Infosys, India's leading infotech company, found.
Murthy grossed around Rs 20 million (1 US$=Rs49) last year; he was a board member and one of the highest paid executives at Infosys. He was also the company's key person in the US market, which accounts for 70 per cent of the company's total revenue. Murthy was forced to resign in July after an American woman employee in Fremont, California, slapped a lawsuit against him and the company, alleging sexual harassment and wrongful termination.
Although Infosys and the entire infotech industry were rocked by these events, most women subjected to sexual harassment at the workplace in India have not been able to make waves. Private companies are particularly immune to regulation; and lack of job security and non-enforcement of labor laws ensure that most women remain silent.
Laying down guidelines in the landmark Vishakha judgement of August 1997, the Supreme Court of India recognized sexual harassment at the workplace as not only personal injury to the affected woman, but also a violation of fundamental rights. The judgment vindicated the struggles of women's organizations all over the country.
The Vishakha judgement based itself not only on Articles 14 and 21 (equality and right to life) of the Constitution, but also Article 19(1) - the right to 'practice any profession or to carry on any occupation, trade or business'. Sexual harassment at the workplace is seen as a violation of these fundamental rights. For long labeled 'eve-teasing' and 'light flirtation', this intrusive and humiliating behavior, which can leave a deep impact on the psyche, began to be taken seriously as a form of violence against women.
The Supreme Court guidelines make employers and institutions responsible for implementing both preventive and remedial measures to make the workplace safe for women. Yet, it is this very provision that has proved to be a stumbling block in implementing the guidelines.
Studies undertaken by women's groups in different parts of the country have come up with the same findings: not many institutions have set up mechanisms like complaint committees to tackle sexual harassment. And where the committees do exist, they are stooges of the management, with no real powers.
Most women therefore, continue to suffer in silence -- either enduring the harassment, or quitting their jobs when the going gets too rough. In extreme cases, some even end their lives. In June 2000, it took the suicide of Sangeeta Sharma, an advocate in the Andhra Pradesh High Court to highlight the fact that women lawyers, ironically enough, have no recourse to the law prohibiting sexual harassment at the workplace. Unwilling to publicly reveal the names of her harassers because she feared harm for herself and her child, Sharma's suicide note contained allegations of sexual harassment by fellow lawyers and senior advocates.
A petition submitted to the National Human Rights Commission by Asmita - the Hyderabad-based women's group Sharma approached for help - urges the NHRC to intervene and provide women lawyers with an environment free from sexual harassment. "Although the courts may not technically employ women lawyers it is their responsibility to set in place mechanisms by which women can raise issues of sexual harassment by their colleagues. It is also important that sexual harassment should be explicitly stated as on offence in the code of conduct for lawyers and officers of the court," says the petition. There has been no progress on this count, and even the Supreme Court of India - the guardian of the law of the land - does not have a policy on sexual harassment, nor a committee to deal with complaints.
What, then, can one say of less hallowed institutions? A study in August 2001 by Sanhita, a Kolkata-based women's group, found that an overwhelming 95 per cent of the respondents felt the probability of women facing sexual harassment in the workplace is very real. In the private sector, 68 per cent of the incidents of sexual harassment were committed by the boss, who wields unbridled power and controls privileges and rewards, unlike in the public sector.
It is not surprising that women in the private sector are silenced by unstable work contracts, when even women journalists - popularly perceived to be independent and articulate professionals - hesitate to speak out against sexual harassment. A recent consultation in the capital, called by the National Commission for Women (NCW), revealed the shocking fact that leading newspaper houses and media agencies do not have Complaints Committees in accordance with the Supreme Court guidelines. The standard response -- to terminate services following complaints of sexual harassment -- has seen many a vocal woman scribe lose her job, or spend years in legal battles.
In this context, the 'Sexual Harassment of Women at their Workplace (Prevention) Bill, 2000', drafted by the NCW may have been expected to provide some succor. But women's groups have expressed grave reservations over the Bill, which is currently under discussion. The most important point is that the preventive aspect is not highlighted in the Bill, as it was in the Vishakha judgement, since all workplaces must take responsibility for generating awareness about sexual harassment and making the workplaces safe for women.
in the United States
Studies have shown that in the US, women in traditionally male-dominated occupations and the military are most likely to be harassed. It has been found that harassment is more common in female-dominated workplaces where the majority of women earn low wages and the management is predominantly male.
According to the National Council for Research on Women, American women are nine times more likely than men to quit their jobs, five times more likely to transfer, and three times more likely to lose jobs because of harassment.
Sexual harassment is addressed in Title VII of the 1964 Civil Rights Act. It can be identified as "quid pro quo" or "hostile working environment." Quid pro quo sexual harassment is fairly straightforward: conditions of
employment are made contingent upon the victim's providing sexual favors.
Hostile working environment is more difficult. It has been defined as "when the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working environment.' "
The law on sexual harassment as defined above was handed down by a unanimous Supreme Court decision in 1993.
The US Merit Systems Protection Board, which began conducting studies, surveys, and general research on the problem of sexual harassment in the federal workplace as far back as 1980, found that there was indeed a
perceived harassment problem at virtually all levels of the federal government.
The US Department of Education, the US Military, and many professional organisations such as the American Bar Association and the American Medical
Association have issued their own publications and statements, and feminist organizations provide numerous information and referral services.
Still, despite the fact that a number of landmark legal cases were decided in favor of harassed women in the 1990s, the problem persists. Harassed women have several legal remedies they can pursue. Under civil law, a claim
can be filed with the federal or state Equal Employment Opportunity Commission (EEOC) or state Fair Employment Practice (FEP) agencies. (Title
VII covers all public and private employers in the US as well as US citizens working for an American employer based in a foreign country.)
Sadly, few sexual harassment cases get to federal court, and those that do can take years to resolve. Nevertheless, American women are sending a strong message to real and potential harassers: Sexual harassing will no longer be tolerated. They are naming the perpetrators and holding them and their employers accountable. They are, at last, taking charge.
' Elayne Clift
Moreover, the definition of sexual harassment in the present draft is problematic; it is a downslide from the wide definition in the Vishaka judgment. For example, the term 'avoidable physical contacts and advances' has been used, rather than 'unwanted', a more appropriate term. Further, the definition of 'workplace' needs to be thoroughly thought through in order to include all categories of working women.
As it stands, the provisions of the draft Bill address only the organized sector. However, the majority of women in the workforce are in the informal or unorganized sector. Unless a framework for addressing sexual harassment in the informal sector is incorporated, the Bill will fail to address the realities of a large bulk of working women in India.
Women's groups have also pointed out that in addition to the substantive aspects, certain procedural matters should also be considered. For instance, the absence of eyewitnesses or delay in filing the complaint should not be the ground for disbelieving a complaint. Instead, the complaint should be seen in the context of the culture of denial that shrouds the issue.
There is a lot of confusion between the civil and criminal procedure in the Bill in its present form. The nature of criminal penalties as well as the impact on the harasser and the complainant need further discussion. The NCW must explore civil law to mandate the participation of employers, organizations and trade unions, not only to combat sexual harassment at the workplace but also to generate awareness on the issue and build a culture of non-tolerance of sexual harassment. And this aspect needs to be included in the Bill.
Given the trauma of sexual harassment as well the price to be paid for making a complaint public, the Bill needs to provide a statutory framework for claiming material and non-material damages. Women's groups have suggested that some provision be made to protect the income of a woman who complains, because job insecurity compels many women to silence. The focus of the present Bill however, is on taking action against the perpetrator and the implicated organization only, which is very limited.
Unless organizational culture accounts for women's presence at the workplace, no law alone can provide the solution. It is only when institutions begin to value women as workers, that sexual harassment will begin to be regarded as unacceptable.
The Sanhita study, during which an overwhelming 92 per cent respondents said sexual harassment had a detrimental effect on their work, reinforces studies by the International Labor Organization which document the high costs of sexual harassment to organizations. These include: poor organizational image, low work productivity, poor employee morale, high legal costs, mounting medical bills and high employee turnover.
Obviously, Infosys, a front-runner in the infotech industry has quickly learnt this fact. The replacement of Phaneesh Murthy could possibly be read as a signal that sexual harassment is bad for business.