Laws prohibiting sexual harassment emerged in the context of the discrimination and outright violence that women experience in the workplace. Workplace sexual harassment law is by far the most developed and most commonplace around the world. In the United States, where sexual harassment laws and judicial decisions were first developed in the 1970s, courts recognized that women experienced harassment in two common forms. First, quid pro quo harassment, where the victim’s refusal or acceptance of behavior influences decisions concerning her employment or conditions of employment, e. g. a manager tells his assistant, “Perform a sexual favor for me and you will [/or you will not] get promoted.” Second, hostile work environment claims, in which the harasser’s or harassers’ behavior creates an intimidating, hostile, degrading, humiliating, or offensive environment, e.g., male employees make daily comments over a period of time about the sexual life and body of their female co-worker. (See: Williams v. Saxbe, 413 F. Supp 654 (Ct. App. D.C. 1976))
Legal definitions of sexual harassment in the workplace should include the following elements:
(See: What is Sexual Harassment, StopVAW, The Advocates for Human Rights.
Workplace laws should also reflect the Core elements of sexual harassment legislation discussed in that section)
Legal definitions should cover all work-related activities as well as a wide array of work-based relationships, not solely supervisors harassing employees.
The Caribbean Coalition against Sexual Harassment has prepared a model law on Protection against Sexual Harassment in the Workplace.
CASE STUDY – New South Wales
In New South Wales, Australia, workplace sexual harassment is included in broad anti-discrimination legislation and the law provides a detailed exposition of where sexual harassment might occur and by whom it might be perpetrated.
(3) It is unlawful for a person to sexually harass:
(a) a commission agent or contract worker of the person, or
(b) a person who is seeking to become a commission agent or contract worker of the person.
(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.
(7) It is unlawful for a member of either House of Parliament to sexually harass:
(9) In this section: “place” includes a ship, aircraft or vehicle. “workplace” means a place at which a workplace participant works or otherwise attends in connection with being a workplace participant. “workplace participant” means any of the following:
(a) the whole of Parliament House,
(b) any ministerial office or electoral office of the member,
(c) any other place that the member otherwise attends in connection with his or her Ministerial, parliamentary or electoral duties.
(See: Anti-Discrimination Act, sec. 22B)
The New South Wales law also covers harassment and discrimination in a multitude of other areas, including education, sport, provision of goods and services, and property transactions. Judicial decisions in Australia have enforced these types of provisions. The Australian Department of Defense was held liable for sexual harassment by one of its employees even when the most serious incident took place at a private party hosted in a private home by other department employees. See: Lee v. Smith & Ors, FMCA 59 (Australia 2007).
Types of Prohibited Behavior
‘harassment’: where unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
‘sexual harassment’: where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment;
[A]ny insult or inappropriate remark, joke, insinuation and comment on a person’s dress, physique, age, family situation, etc; a condescending or paternalistic attitude with sexual implications undermining dignity; any unwelcome invitation or request, implicit or explicit, whether or not accompanied by threats; any lascivious look or other gesture associated with sexuality; and any unnecessary physical contact such as touching, caresses, pinching or assault.
(See: McCann,Sexual Harassment at work: National and international responses, 2005.)
India: Ongoing Fight to Implement Landmark Case
In 1997, a group of activists and NGOs in India filed a class action alleging that the pervasive sexual harassment of women in the workplace violated several articles of the Constitution. Specifically, the action alleged that sexual harassment violated the right to gender equality, the right to life and liberty, and the right to practice any profession, trade, or occupation. The case was filed after the brutal gang rape of a social worker in Rajasthan. The Court noted that the laws in India had not sufficiently protected the rights of women workers and that the Court had a duty to “fill the legislative vacuum.” See: Vishaka and others v. State of Rajasthan, para. 3.
In its opinion, the Court stated that “[g]ender equality includes protection from sexual harassment and [the] right to work with dignity, which is a universally recognized basic human right.” (Vishaka, para. 10) The Court also specifically referenced the Convention on the Elimination of All Forms of Discrimination Against Women, recognizing the Indian government’s ratification of CEDAW and its commitments regarding women’s rights made at the Fourth World Conference on Women in Beijing.
The Court went on to define sexual harassment broadly as “unwelcome sexually determined behavior (whether directly or by implication)” including:
The Court also stated that when:
any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. (Vishaka, para. 16(2)).
In the years since the Vishaka decision, women’s rights advocates have continued the fight for implementation of the decision. In 2010, a bill to make the directives of the Supreme Court decision law was introduced into the lower house of the Indian Parliament. Unfortunately, the proposed bill contained provisions that would punish complainants who brought claims, if their claims considered false or malicious. The Bill also imposed onerous procedures for sexual harassment claims to be proven, as well as imposing a short time limit of three months for filing a complaint. In addition, the bill does not cover many workplaces, such as the armed forces and construction sites. These provisions are contrary to the powerful principles the Court had declared in Vishaka and subsequent decisions and could dissuade victims from coming forward to lodge claims. Despite advocacy to change the draft, the new law passed the lower house (Lok Sabha) in December 2012 with the provisions in place. While legislation to address sexual harassment is an important development, advocacy continues in order to address the shortcomings of the bill. See: Sexual harassment of women at workplace bill passed by Lok Sabha (Lawyers Collective, 2012); Flaws in Sexual harassment Act?, The New Indian Express, Sept. 21, 2012.
Watch a video about Indian women lawyers’ concerns about sexual harassment during their work in the courts, and the fact that the new law may not adequately address the issue.
Bangladesh: Advocacy on the Indian Model
Vishaka has had broad implications in India and beyond. In 2008, a coalition of NGOs in Bangladesh filed a petition similar to that in Vishaka alleging that sexual harassment constituted a violation of Bangladesh’s constitution. Following much of the reasoning of Vishaka, and quoting the Indian Supreme Court among others, the Supreme Court of Bangladesh issued guidelines with the force of law similar to those issued in Vishaka. The Court went even further in defining the types of conduct that could constitute sexual harassment, adding the taking of “still or video photographs for the purpose of blackmailing and character assassination; preventing participation in sports, cultural, organizational and academic activities on the ground of sex and/or for the purpose of sexual harassment; making love proposal and exerting pressure or posing threats in case of refusal to love proposal”, etc. (See: Bangladesh National Women Lawyers Association v. Gov. of Bangladesh and Others (2009)) Bangladesh’s law continues to be interpreted by the courts. A decision in 2010 confirmed that the guidelines issued in Bangladesh National Women Lawyers Association apply to women working in the educational setting. It found that a government education official who verbally abused a school headmistress in sexually colored remarks during a public meeting of her school because she did not wear a veil at the meeting had engaged in sexual harassment.
In 2011, mobile courts in Bangladesh were given the power to prosecute eve teasing, a form of public sexual harassment (see section on “eve teasing” below). Perpetrators can receive a year in jail, a fine or both. There is concern however that without a clear definition of sexual harassment enshrined in legislation, interpretation of the law could be uneven.
See: Advocate Salahuddin Dolon v. Bangladesh (2010); Women can’t be forced to wear veil, Women Magazine of Bangladesh, April 15, (2010); Pascal Villeneuve, Eve teasing is a form of sexual harassment, New Age, Dec. 7, 2012.
Next Topic Theories of Workplace Sexual Harassment