To evaluate the problem of sexual harassment, it is essential to identify its vivid forms and understand the extent to which these exists in the society; though, the statistics and the available data may not reveal the true picture.
Women, across age groups and class, face this menace. Younger and newer entrants into the profession especially in private sector are equally vulnerable as women on the verge of their retirement. Even widows who get jobs on compassionate grounds or divorced women are not spared. The crux of the matter is that a major chunk of the population has to endure such sexual gestures and comments without any fault of theirs.
Admitting and assuming that not all men are potential rapists, batterers, molesters and torturers of women, all women are potential victims as Sexual Harassment crosses all professions, social strata and levels of income. It can be as easily found in a film studio as in a file filled Government office and in private organisations though some professions are more prone to it than others. For every woman who raises an outcry, there are hundreds of others who suffer in silence, quit their jobs or get transfers, as it is the most common yet pervasive experience of working woman either in the guise of ‘harmless’ banter or in the form of unwelcome physical conduct. It not only violates one’s freedom and personal dignity but also takes a serious psychological
toll on women by creating an intimidating, hostile and humiliating work environment. So common, indeed, is this social malady that most women sometimes fail to realize seriousness of the problem and try to treat it as ‘normal’ or dismiss it as routine and others over the years develop internal coping mechanisms to deal with the menace. Woman with little or no education, do not accept the fact that Sexual Harassment is unacceptable behaviour. Even among the aware and educated, generally, there is lack of recognition about comfort zones and bodily boundaries.
Sexual Harassment can be interpreted as sex based discrimination because the expression of sexuality at work place is prejudicial to the dignity of woman. It emphasizes the sexuality of victims over their role as workers and thereby imposes less favourable working conditions upon them. The victim is targeted because of her sex. It is part of the whole syndrome of discrimination and exploitation that upholds unequal economic and social structures thriving in an atmosphere of threat, terror and reprisal. The following acts may amount to such discrimination:
- Finding faults unnecessarily with the female employees work or treating her as an ornament or giving extra work to her.
- Creating stereotypes about women.
- Condoning acts of Sexual Harassment either actively or passively by not taking preventing steps.
Reporting of the Incidents: A Microcosm
This fear that the whole issue would snowball out of proportion – that induces most women to endure their tormentors in silence or give in to their demands. It’s only a myth to state that the women occupying lower jobs suffer. The women holding high profile positions, though still a microcosm despite number of equality opportunity provisions in place dares not to complain about such instances. Almost similar factors, remain responsible for this mindset irrespective of the qualifications, employment security and awareness. Moreover, most cases of sexual abuse go unreported because of the traumatic trial procedure and social stigma involved with sexual matters.
Anxiety about devastating trials involving rigorous examination and cross examination, recalling of humiliating and degrading circumstances in explicit details, time and again, submissions of defence counsels to discredit the testimony of the victim and obvious attempts to establish that the incident did not take place and common knowledge and belief that conviction is rare; are few of the reasons which have more often than not discourage victims to take recourse of available remedial measures.
Those Who Dare
The moment she attempts to ‘public’ her ‘private’ anguish, in a moment, she is labeled as not a ‘good’ woman and becomes an easy target of the harasser to be subjected to ridicule and humiliation publicly. The situation is worsened in those instances where the boss himself happens to be the perpetrator and he threatens the victim with adverse job consequences ranging from demotion, transfer or even loss of employment, in case; she does not easily succumb to his demands. Her male colleagues either make fun along with the harasser’s slander campaign, fully endorsing the notions of the boss pertaining to her loose moral character or just like female counter parts, a witness in silence. Even other colleagues and employees, who may be well versed with the reality and aware of the whole situation or those who in the past may have suffered at the hands of the same boss, are more often than not, unable to muster courage enough to raise their voices due to a wide range of fears and apprehensions including loss of job. Words about such incidents are intentionally whispered in the ears of her neighbors, family or friends by her harasser to compromise her reputation and to create an undue pressure upon her senses. Multiple counter attempts are made to further malign her character.
Perceptions and Attitudes Towards Sexual Harassment
Women in most societies are trained to put up with manipulative sexual relationships as ‘normal’ and even learn to accept Sexual Harassment as an expression of men’s sexual desire. The inaction by women is lauded by family and society as the most dignified and honourable course for them to adopt in such situations. The pain of Sexual Harassment is partly due to the realisation that however much you achieve, in work or study, however much you affirm yourself as an autonomous person; society in the form of the harasser will remind you that your destiny is not yours.
This attention to irrelevant peripheral characteristics may also affect women’s chances of promotion and advancement. If women’s attributes unrelated to work are noticed, it is also plausible that their job related skills and abilities may go unnoticed or insufficiently noticed.
Some Perceptions of Sexual Harassment
A popular misconception about Sexual Harassment is that it inevitably includes physical sexual contact at any time, place and in any context. Socially and legally speaking, there is an unstated expectation; though, it may not be true always that any kind of sexual violation should involve visible proof, an expectation that has inhibited most women from reporting day to day instances of Sexual Harassment. It may take diverse and varied forms and not simply limited to demands for sexual favours made under threats of adverse job consequences should the recipient refuse to comply with such demands. Victims of Sexual Harassment need not establish that they were not hired, were denied a promotion or were dismissed from service as a result of their refusal to participate in sexual activity. “This form of harassment, in which the victim suffers concrete economic loss for failing to submit to sexual demands, is simply one manifestation of Sexual Harassment, albeit a particularly blatant and ugly one. Sexual Harassment also encompasses situations in which sexual demands are foisted upon unwilling employees or in which employees must endure sexual groping, propositions, and inappropriate comments but where no tangible economic rewards are attached to involvement in the behaviour.”
Sexual Harassment may be subtle and may even involve what would otherwise constitute normal sexual or social activity. Conduct constituting Sexual Harassment encompasses both the physical and the psychological. Milder forms of Sexual Harassment include verbal innuendos and affectionate gestures that are inappropriate in the circumstances, repeated social invitations for dinner or drinks, or unwelcome flirting where the implicit message is that sexual favours are anticipated or expected. Normal sexual or social activity may become Sexual Harassment where a power differential exists between the parties. In most cases of Sexual Harassment the perpetrator is a person in a position of authority who abuses that power, both economically and sexually.
Speaking generally, Sexual Harassment is “behaviour with a sexual connotation that is abusive, injurious and unwelcome.” For the victim, Sexual Harassment has direct consequences for the maintenance or improvement of his or her living conditions and/or places him or her in an atmosphere of intimidation, humiliation or hostility.9 ‘Sexual Harassment’ is both sexual and unwelcome.” t may be constituted by many or a single act and, broadly speaking, the intention of the harasser is not relevant.”
There is a whole range of behaviour and activity, which may not fall squarely within the definition above but still it may constitute or may amount to Sexual Harassment. The illustrations of the same can be as follows:
(i) telling a woman employee about the ways she dresses up or calling her up late at night with a request to have dinner with him repeatedly with which she is not comfortable.
(ii) Making sweeping statements while delivering lecture on advertising, for example, women are the best models to sell a product; that body of the car should be sleek and sexy like a woman; soap has to be soft to touch and so on. The female students may feel offended as these statements are derogatory to women in general, though he might not be targeting anyone.
Thus, such statements are apt illustrations to depict creation of hostile and offensive environment at work place.
Hence, any of these may be perceived as Sexual Harassment:
(i) A sexual comment.
(ii) Leering at another’s body and/or sexually suggestive gesturing.
(iii) Displaying sexually visual material such as pin ups, cartoons, graffiti, computer programs, and catalogues of a sexual nature.
(iv) Any other verbal or non-verbal conduct.
Perceive it as a personal problem or a private issue, attitudinal problem or behavioral issue, a social malaise or human rights issue, an economic or financial issue, organisational problem or management issue; the categorization is important for the sake of convenience and better understanding of the concept though all of these harmoniously indicate towards a behaviour that is unacceptable at any workplace since it results in violation of certain basic human rights of a particular section of the human population and has harmful impacts on the society as a whole which are matter of serious concern.
Discrimination Amounting To Sexual Harassment
Women, across age groups and class, face this menace. Younger and newer entrants into the profession, especially in the private sector, are equally vulnerable as women on the verge of their retirement. Those who are especially vulnerable to abuse are widows that get jobs on compassionate grounds or divorced women. The crux of the matter is that none is spared and a major chunk of the population has to endure such sexual gestures and comments. The following acts may amount to such discrimination:
- Finding faults unnecessarily with the female employees work or treating her as an ornament or giving extra work to her
- Creating stereotypes about women
- Condoning acts of Sexual Harassment either actively or passively by not taking preventing steps Trivializing the matter of Sexual Harassment if complained off.
Types of Sexual Harassment. Two Faces, Same Coin
The US Supreme Court has expressed that though the distinction is of limited utility yet it is not irrelevant altogether.
1. Quid Pro Quo
- The employee was subjected to unwelcome sexual advances or request for sexual favours; and
- The reaction to the harassment-rejection or submission as the case may be- affected tangible aspects of the employee’s compensation, terms, conditions, and promotion, excess to training opportunities and/ or any other privileges of employment. In countries like India, there is regular large-scale quid pro quo harassment in the construction and garment industry. Jobs being scarce, the pressure of survival in a situation of scarcity added to their low status in society, keeps these women silent. Sexual Harassment here, thus, becomes entrenched and structured.
Adverse work consequences may be of two types:
(i) Tangible: This type of consequences are quite visible such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision to cause a significant change in benefits, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits and significantly diminished material responsibilities.
In an allegation of this type of quid pro quo harassment it is sufficient for the complainant to prove that such a threat was made. In Burlington’s case, the trial court found the complainant’s supervisor to have made “repeated boorish and offensive remarks,” some of which were accompanied by threats. In one such incident, during a business trip, a supervisor invited the complainant to join him in the hotel lounge, which she felt compelled to accept because she was his subordinate. The supervisor then made remarks about her breasts. She gave no encouragement to his remarks. Then he told her to “loosen up” and warned her that he could make her life “very hard or very easy” at the company. Few months later, when the complainant was being considered for promotion, the supervisor expressed reservations during the promotion interview saying that she was not “loose enough”, reached over, and rubbed her knee. Although the complainant received the promotion, when the supervisor called her to inform her of this he said “you are gonna be out there with men who work in factories and they certainly like women with pretty butts/ legs.” On a third occasion, the complainant called supervisor to ask permission for some work- related business. He responded, “I don’t have time for you now… unless you want to tell me what you are wearing.” The woman told him she had to go and ended the call. A few days later, she called him to ask for permission again. This time, he denied her request, saying, “Are you wearing shorter skirts yet… because it would make your job a whole heck of a lot easier.”
This is an apt illustration to depict that the Sexual Harassment at work place can exist even in the following situations:
(i) When the perpetrator played a key role in the promotion.
(ii) The veiled threats and demeaning comments were never carried out actually.
This case also establishes that when an employee in the course of carrying out her duties receives sexually coloured comments or the supervisor puts obstacles in her path of performance of her duties or denies or delays her job related reasonable requests, the same amounts to Sexual Harassment.
(ii) Intangible: In this type of adverse employment action, a complainant need not demonstrate any so called tangible adverse employment action over and above a hostile or demeaning environment.
Simply speaking, if boss docks her pay or fires her or otherwise punishes her for rebuffing and advance, he is flat-out guilty of this type of harassment.
2. Hostile Work Environment
The U.S. Supreme Court held that when the Work Place 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.’
“Whether an environment is ‘hostile’ or ‘abusive’ can only be determined by looking into the totality of the circumstances. These may include flic frequency of the discriminatory conduct; its severity; whether it is physically threatening or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. “
The House of Lords in an English case’4 held that it was not necessary for the victim to demonstrate physical or economic consequences and that compensation for injury to feeling can be awarded where an employment action is taken that results in a complainant’s role and position being substantially undermined, or on her being increasingly marginalized at work.
A similar judgment was delivered by the U.S. Supreme Court wherein it was stated by the court that it is not necessary to show that the behaviour complained of impaired the work of the victim or that the conduct caused psychological injury. Unlawful conduct may lie between conduct that is “merely offensive” and conduct that causes a tangible physiological injury. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin” was contrary to the principle of workplace equality.
In this case, the US Supreme Court undertook a detailed analysis of what constitutes “hostile environment” Sexual Harassment and quoted with approval, the Federal Equal Employment Opportunity Commission (EEOC) Guidelines on Sexual Harassment. The court stated that employees have “the right to work in an environment free from discriminatory intimidation, ridicule and insult” and that “a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.” supervisors also subjected the complainants and her fellow women employees to “uninvited & offensive touching.”
Quid pro quo and hostile work environment, though two specific forms of Sexual Harassment, do not occur in isolation and one may lead to the other. Moreover, it is not possible to devise a straightjacket formula to distinguish between both the types as the features and ingredient overlap very often.
The Perpetrator / Satyr
Harassers are, on the whole, usually men or in fewer cases women either of similar or higher status to the person being harassed. Physical harassment is more likely to come from superiors than from colleagues or juniors. The harassers, for all forms of harassment, usually are peers, managers, supervisors or subordinates. Hence, it can be inferred that those who exercise some sense of control or power over the victim are more likely to take direct advantage of it by harassing in a more intimate way by taking undue advantage of the workplace relationship.
The boss, the colleague, the client, the caretaker or owner of the premises, the entire spectrum of male workers can be randomly considered to be potential harassers though it is not necessary always. The relationship may vary from case to case. The difference in degree lies in the fact that more the power a man wields in terms of his class, seniority and authority, the greater the potential of abuse of power he has over women.
Though, the possibility of a female boss or manager donning the attire of the perpetrator, if the subordinate is male, can never be ruled out yet going by the available reported cases, frequency of such cases is comparatively quite low.