Facts [+]During 2009, 16% of all sexual harassment cases were filed by men in the United States ( and more than 2200 men filed complaints in 2008). According to a 2006 government study in the United Kingdom, 2/5 sexual harassment the teams in the UK where male, with 8% of all sexual harassment complaints to the equal opportunities commission ( Britain's EEOC), coming from men.
The United Nations General Recommendation 19 to the Convention on the Elimination of all Forms of Discrimination Against Women defines sexual harassment of women to include:
"such unwelcome sexually determined behavior as physical contact and advances, sexually colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment."
While such conduct can be harassment of women by men, many laws around the world which prohibit sexual harassment recognize that both men and women may be harassers or victims of sexual harassment. However, most claims of sexual harassment are made by women.
There are many similarities, and also important differences in laws and definitions used around the world. After covering one country in some detail (the United States), approaches in other countries are covered alphabetically.
The Sex Discrimination Act 1984 defines sexual harassment as "... unwanted conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated."
Undesirable behavior of a sexual nature at the workplace if such conduct is unwelcome, unsuitable or insulting, or if it can be justifiably perceived by the party concerned as a condition for decisions affecting the exercise of rights and obligations ensuring from labor relations.
Sexual harassment is defined as, when any verbal, non-verbal or physical action is used to change a victim's sexual status against the will of the victim and resulting in the victim feeling inferior or hurting the victim's dignity. Man and woman are looked upon as equal, and any action trying to change the balance in status with the differences in sex as a tool, is also sexual harassment. In the workplace, jokes, remarks, etc., are only deemed discriminatory if the employer has stated so in their written policy. Women are viewed as being responsible for confronting harassment themselves, such as by slapping the harasser in the face. Law number 1385 of December 21, 2005 regulates this area.
Article 222-33 of the French Criminal Code describes sexual harassment as, "The fact of harassing anyone using orders, threats or constraint, in order to obtain favors of a sexual nature, by a person abusing the authority that functions confer on him..." This means the harasser can only be someone with authority on the harassed (basically, there can't be sexual harassment between coworkers of the same rank). However, moral harassment occurs when an employee is subjected to repeated acts (one is not enough) the aim or effect of which may result in a degradation (deterioration) of his conditions of employment that might undermine his rights and his dignity, affect his physical or mental health or jeopardize his professional future. Sexual as well as the moral harassment is recognized by the law.
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. The critical factor is the unwelcomeness of the behaviour, thereby making the impact of such actions on the recipient more relevant rather than intent of the perpetrator. According to India's constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution. Although there is no specific law against sexual harassment at workplace in India but many provisions in other legislations protect against sexual harassment at workplace, such as Section 354, IPC deals with “assault or criminal force to a woman with the intent to outrage her modesty, and Section 509, IPC deals with “word, gesture or act intended to insult the modesty of a woman.
(April 2013) New amendments were carried out in Indian Penal Code for acts relating to sexual harassments against women. Section 354A, 354B,354C, 354D was newly inserted in Indian penal code, especially for the acts which shall be treated as sexual harassments.
According to the section 354A, the following activities by a man shall be treated as sexual harassment against women.
- Physical contact and advances involving unwelcome and explicit sexual overtures; or
- demand request for sexual favours; or
- showing pornography again as the will of a woman; or
- making sexually coloured remarks,
For the above said offences the punishment shall be for a period of one to three years of imprisonment or with fine, or both
According to section 354B, any man who assaults or uses criminal force to any women or abets such act with the intention of disrobing (taking off one’s clothes) are compelling her to be naked. For this offence, the punishment shall not be less than three years, but may extended to 7 years, and also shall be liable to fine.
According to section 354C, any man who watches captures images of women engaging in a private act in circumstances where she would usually have the exception are not being observed either by the perpetrator or by any other person. For this offence, the punishment shall not be less than three years, but may extended to 7 years, and also shall be liable to fine.
According to section 354D, the following shall be treated as an offence by a man.
- Following a woman and contacts, or attempts to contact such women repeatedly despite a clear indication of disinterest by such women.
Police are empowered to act, or take action against aforesaid offences of sexual harassments on women. Any women facing aforesaid sexual harassments can make a complaint to the police for taking necessary action against the person who commits such activities.
THE SEXUAL HARASSMENT OF WOMEN AT WORK PLACE (PREVENTION, PROHIBITION AND REDRESSAL) BILL, 2006
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that is for protecting women from sexual harassment at their workplace. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3rd of September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26th of February 2013. The Bill got the approval of the President of India on 23 April 2013. This Act came into force from 9th of December 2013.
A Bill conferring upon Women the Right to Protection against Sexual Harassment and to protect the Right to Livelihood and towards that end for the prevention and redressal of Sexual Harassment of Women.
Whereas Sexual Harassment infringes the Fundamental Right of a woman to gender equality under Article 14 of the Constitution of India and her Right to life and live with dignity under Article 21 of the Constitution which includes a Right to a safe environment free from Sexual Harassment.
And Whereas the Right to protection from Sexual Harassment and the Right to work with dignity are recognized as universal human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which has been ratified by the Government of India.
And Whereas the Supreme Court in Vishakha vs. State of Rajasthan [1997(7) SCC.323] has formulated guidelines to address Sexual Harassment until a suitable legislation is enacted in this respect. [The Act uses a definition of sexual harassment which was laid down by the Supreme Court of India in Vishaka v. State of Rajasthan (1997). Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. Vishaka v. State of Rajasthan established that actions resulting in a violation of one's rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling establishes that sexual harassment violates a woman's rights in the workplace and is thus not just a matter of personal injury.]
Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
Background and provisions
The Act will ensure that women are protected against sexual harassment at all the work places, be it in public or private. This will contribute to realisation of their right to gender equality, life and liberty and equality in working conditions everywhere. The sense of security at the workplace will improve women's participation in work, resulting in their economic empowerment and inclusive growth.
- The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- The definition of “aggrieved woman”, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
- While the “workplace” in the Vishaka Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation.
- The Committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to INR 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
Brinda Karat, serving in the Rajya Sabha as a Communist Party of India (Marxist) member for West Bengal initially complained that the Bill does not cover women in the armed forces and excludes women agricultural workers, "a gross injustice to agricultural workers who are the single largest female component of work force in the country." However, the final bill includes the clause "No woman shall be subjected to sexual harassment at any workplace" (clause 3.1), and is considered to have addressed those concerns. In the May 2012 draft Bill, the burden of proof is on the women who complain of harassment. If found guilty of making a false complaint or giving false evidence, she could be prosecuted, which has raised concerns about women being even more afraid of reporting offences. Before seeing the final version of the bill, lawyer and activist Vrinda Grover said, "I hope the Bill does not have provisions for penalizing the complainant for false complaints. This is the most under-reported crime. Such provision will deter a woman to come forward and complain." Zakia Soman, a women's rights campaigner at ActionAid India said that "it helps to have a law and we welcome it, but the crux will lie in its implementation once it is enacted.
Male harassment in IndiaJudging from the findings of a recent economic Times-synovate survey, from Pune 19% said there is some kind of sexual harassment at office. in Bangalore 51% of the respondents had been sexually harassed, while in Hyderabad, 31% and 28% of those surveyed said they had been sexually harassed. Around 38% of the respondents across seven cities in India said that in today's workplaces, " men are as vulnerable to sexual harassment is as women".---Times of India
The 1998 Israeli Sexual Harassment Law interprets sexual harassment broadly, and prohibits the behavior as a discriminatory practice, a restriction of liberty, an offence to human dignity, a violation of every person's right to elementary respect, and an infringement of the right to privacy. Additionally, the law prohibits intimidation or retaliation that accommodates sexual harassment. Intimidation or retaliation thus related to sexual harassment are defined by the law as "prejudicial treatment". (Kamir, 2005)
Pakistan has adopted a Code of Conduct for Gender Justice in the Workplace that will deal with cases of sexual harassment. The Alliance Against Sexual Harassment At workplace (AASHA) announced they would be working with the committee to establish guidelines for the proceedings. AASHA defines sexual harassment much the same as it is defined in the U.S. and other cultures.
The Anti-Sexual Harassment Act of 1995 was enacted "primarily to protect and respect the dignity of workers, employees, and applicants for employment as well as students in educational institutions or training centers. This law, consisting of ten sections, provides for a clear definition of work, education or training-related sexual harassment and specifies the acts constituting sexual harassment. It likewise provides for the duties and liabilities of the employer in cases of sexual harassment, and sets penalties for violations of its provisions. It is to be noted that a victim of sexual harassment is not barred from filing a separate and independent action for damages and other relief aside from filing the charge for sexual harassment."
There is no special provision in the employment law that provides for moral or sexual harassment; however it is commonly accepted by the jurisprudence, that sexual harassment occurs when the employee is subjected to acts of another person in order to obtain favours of a sexual nature. Moral harassment occurs when en employee is subjected to acts which may result in a deterioration of his conditions of employment or undermine his rights and dignity as well as affect his physical or moral health. These definitions are not legal ones, but definitions accepted by the jurisprudence.
In the Criminal Code, Russian Federation, (CC RF), there exists a law which prohibits utilization of an office position and material dependence for coercion of sexual interactions (Article 118, current CC RF). However, according to the Moscow Center for Gender Studies, in practice, the courts do not examine these issues.
The Daily Telegraph quotes a survey in which "100 per cent of female professionals [in Russia] said they had been subjected to sexual harassment by their bosses, 32 per cent said they had had intercourse with them at least once and another seven per cent claimed to have been raped."
A ban on discrimination was included in the Federal Constitution (Article 4, Paragraph 2 of the old Federal Constitution) in 1981 and adopted in Article 8, paragraph 2 of the revised Constitution. The ban on sexual harassment in the workplace forms part of the Federal Act on Gender Equality (GEA) of 24 March 1995, where it is one of several provisions which prohibit discrimination in employment and which are intended to promote equality. Article 4 of the GEA defines the circumstances, Article 5 legal rights and Article 10 protection against dismissal during the complaints procedure. Article 328, paragraph 1 of the Code of Obligations (OR), Article 198 (2) of the Penal Code (StGB) and Article 6, paragraph 1 of the Employment Act (ArG) contain further statutory provisions on the ban on sexual harassment. The ban on sexual harassment is intended exclusively for employers, within the scope of their responsibility for protection of legal personality, mental and physical well-being and health.
Article 4 of the GEA of 1995 defines sexual harassment in the workplace as follows: “Any behaviour of a sexual nature or other behaviour attributable to gender which affronts the human dignity of males and females in the workplace. This expressly includes threats, the promise of advantages, the application of coercion and the exercise of pressure to achieve an accommodation of a sexual nature.”
The Discrimination Act of 1975, was modified to establish sexual harassment as a form of discrimination in 1986. It states that harassment occurs where there is unwanted conduct on the ground of a person's sex or unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them. If an employer treats someone less favourably because they have rejected, or submitted to, either form of harassment described above, this is also harassment.
There are a number of legal options for a complainant in the U.S.: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc. Not all sexual harassment will be considered severe enough to form the basis for a legal claim. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law.(Boland, 2002) Many more experienced sexual harassment than have a solid legal case against the accused. Because of this, and the common preference for settling, few cases ever make it to federal court. The section below describes the legal definitions that have been created for sexual harassment in the workplace. Similar definitions have been created for academic environments in the U.S. Department of Education Sexual Harassment Guidance