Sexual Harassment – The Lack of a Common Definition On the Global Front
Karma Management Global Consulting Solutions Pvt. Ltd. one of the top 5 labour law consulting firms in the country, has recently hit upon yet another significant milestone in the journey of tying up SUNDEEP PURI ASSOCIATES AND ADVOCATE, where both these Firms have formally joined hands together to collaborate and create a bigger alliance by scaling up its business on Pan India basis and Internationally to give greater reach of its services together, to its hundreds of clients all over.
Sundeep Puri & Associates (S D Puri & Co.) with 55+ years of existence and helmed by Advocate Sundeep Puri & Advocate Ravi Paranjpe is one of the largest retainer firms in India specializing in “Employment Laws” advising the Corporate Sector. The Firm boasts of some clients being associated for the last 55+ years and the majority since the last 30-40 years. They have extensive experience in counseling Foreign MNCs and Indian MNC Clients having multi-locational Factories &/or Offices Pan-India on a daily basis on a wide range of “Employment & Labour” issues, keeping in view the cultural diversity of the workforce such as Acquisitions, Mergers, Consolidations, Reductions in the workforce, Maintaining union-free environment by not undermining the principles of collective bargaining & also preserving operational flexibility in unionized settings, providing tailor-made models for conflict-free productivity that is conducive Industrial Environment, as also in respect to the applicability of the various labour laws. They believe in Solution oriented Practical Advice backed by Law.
On the other hand, Karma Management Global Consulting Solutions Pvt. Ltd. since 2004 is backed by 25 years of prior experience since 1979, operating on Pan India basis and Internationally in the Americas and EMEA, helmed by Pratik Vaidya, is a leading giant in payroll management, compliance and governance, human resource services, professional employment staffing, and onboarding, recruitment and talent acquisition, advisory and consultations thereby offering a plethora of services with quick turn-around solutions including in-house flagship AI/ML based tech solutions so as to help organizations of different types and stature to perform better in Human Resource ensuring Risk Management, Compliance and Governance across Environmental, Social and Corporate laws and grow bigger.
So in this regard, besides the business profile of Karma Global relating to labour laws, it will now focus whole time also on legal and paralegal issues and matters with the collaboration of Sundeeep Puri & Associates who are already into legal matters such as disputes, litigation, arbitration, layoffs, retrenchment, and court cases.
Before We Go Into The Landmark Judgement Of the Supreme Court In The Case Of A K Chopra Versus Apparel Export Promotion Council, Let Us Look At The International Definition ……….!
Sexual Harassment – The Lack Of A Common Definition On the Global Front
Despite both national and international efforts to eliminate sexual harassment, there is no single definition of what constitutes prohibited behavior.
Generally, international instruments define sexual harassment broadly as a form of violence against women and as discriminatory treatment, while national laws focus more closely on illegal conduct.
All definitions, however, are in agreement that the prohibited behavior is unwanted and causes harm to the victim. At the International level, the United Nations General Recommendations 19 to the Convention on the Elimination of all forms of Discrimination against Women defines sexual harassment as including:
- such unwelcome sexually determined behavior as physical contact and advances, sexually coloured 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 grounds 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.
SEXUAL HARASSMENT – Types of Sexual Harassment
Sexual harassment can take a variety of forms. It includes both physical violence and more subtle forms of violence such as coercion or the creation of a hostile work environment. A hostile work environment includes situations, for example, when the victim is not appointed to important committees, does not receive information about training opportunities or is not considered for promotion because of family responsibilities. This type of sexual harassment is difficult to document but still can significantly affect women’s work and career paths.
U.S. law describes two different forms of sexual harassment:
(1) Quid pro quo, and (2) hostile work environment
(1) Quid pro quo means something for something and refers to an exchange. In this case, the exchange is between employees, where one provides sexual favours in exchange for something else, such as favourable treatment in work assignments, pay, or promotion. Quid pro quo sexual harassment occurs when employment decisions and conditions are based upon whether an employee is willing to grant sexual favours. Hiring, promotions, salary increases, shift or work assignments, and performance expectation are some of the working benefits that can be made conditional on sexual favours.
(2) A hostile work environment is one in which unwelcome conduct of a sexual nature creates an uncomfortable work environment for some employees. Examples of this conduct include sexually explicit talk, sexually provocative photographs, foul or hostile language or inappropriate touching.
The Act and India’s International Obligations:
By passing the Act, the Government of India has fulfilled its obligations under the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”), adopted by the General Assembly of the United Nations, in 1979, which had been ratified by Indian Government on June 25, 1993, and which provides that protection against sexual harassment is universally recognized human right. CEDAW had, in January 1992, adopted General Recommendation No. 19 which recognized the ill effects of sexual harassment at the workplace, and subsequently provided for measures, to be taken by respective states for the elimination of such practices. Such practices have to be outlawed not only because they result in gender discrimination, but also because they create a hostile work environment, which undermines the dignity, self-esteem, and confidence of female employees, and tends to alienate them.
All unwelcome physical contact, not sexual harassment: HC
NEW DELHI: All unwelcome physical contact cannot be called sexual harassment unless it is in the nature of a sexually oriented behaviour, the Delhi High court said.
Justice Vibhu Bakhru who made the observation also said that even accidental physical contact, though unwelcome, would not amount to sexual harassment.
Similarly, physical contact that has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment, the Court said.
Sexual Assault- Is ‘skin to skin’ contact necessary?
A recent judgment delivered by a single judge of the Bombay High Court at Nagpur in the case Satheesh v. State of Maharashtra (Criminal appeal no. 161/2020) is a classic example of incorrect application of the law and reeks of judicial insensitivity to the larger issue of child abuse. By requiring skin-to-skin contact as an essential ingredient for sexual assault the learned judge did stir a hornet’s nest.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013,
Commonly referred to as the ‘POSH Act’ is the law that provides a redressal framework for women at work, in case of sexual harassment.
The law states that sexual harassment includes:
- Any physical touches or advances.
- Demands or requests for any sexual favours.
- Making sexually coloured comments or remarks.
- Showing pornography or other sexually explicit acts.
Finally, To The Case – Apparel Export Promotion Council V. A.K Chopra
In this case, the Supreme Court upheld the dismissal of a superior officer of the Delhi-based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace.
Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.
The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”
Conclusion – Sexual Harassment Is a Social Issue That Not Only Affects the Women but The Society at Large!
Sexual Harassment brings gender discrimination to Society. Sexual Harassment at the Workplace discriminates the women and also hampers women’s empowerment.
Apparel Export Promotion Council versus A K Chopra was the first case in which the Apex Court upheld the Vishakha Judgement where it maintained its decision that Sexual Harassment of Women in the workplace violates the fundamental rights under Article 14, 19 and 21. The Judgement also upheld the validity of various international conventions like CEDAW which advocates several provisions for women due to absence of any domestic law regarding this issue at that time. Now the guideline given by the Apex court during the Vishakha Judgement laid the foundation stone of the POSH 2013 which aims to protect women from Sexual Harassment in Workplaces.
Karma Global has been at the forefront of rendering yeomen services to its hundreds of clients, often make it a point to sound them on the various acts especially the Industrial Disputes Act, The Employees Compensation Act, The Maternity Benefit Act, The Industrial Employment Standing Orders Act, as well as the clauses contained in the latest new labour codes and its impact.
Karma Global are professionals who have rich experience in their field of over 18 years since its inception in 2004, and the experts in Karma Global have a deeper understanding of the field that they are in and provide quick and easy solutions to all the challenges faced by its clients of over 10 years. Based on the queries of the clients, it offers expertise and provides expert opinion, analysis, and recommendations to a specific type of clients relating to the industry that they come from, who may be an individual, an organization or a group of people or a small and medium enterprise, or to institutions, Government bodies, Agencies, Associations, etc. to help them improve their business performance or activities that they are into so as to leave aside the complexities of laws to Karma Global for them to handle on their behalf.
Proprietary blog of Karma Global Tech Management LLC
This blog has been collated and compiled from various sources, adaptations, and illustrations by the internal staff of Karma Global with the knowledge and expertise that they possess, for its monthly newsletter Issue 08 of February 2023, and in case of specific or general information or compliance updates for that matter, kindly reach out to the Marketing Team – Kush@karmamgmt.com / yashika@karmamgmt.com