Senior Lecturer of Law at the Colombo University A. Sarveswaran says ‘sexual harassment in workplaces’ is a serious issue that needs to be addressed urgently with effective legal provisions in the country’s legislature. He says it’s a silent plague crippling institutions and productivity.
In an interview with the Sunday Observer Sarveswaran says with more and more women entering the workforce this will be a major issue to the country’s economy unless preventive measures are taken to make the working environment conducive for women.
He says women are vulnerable to sexual harassment at the workplace. Harassment of the same sex – men to men and women to women – is no more a rare occurrence in Sri Lankan society today.
“Sending sexually coloured smss and e-mails are the new forms of sexual harassment.”
“In many instances of sexual harassment the perpetrators don’t realise they are violating someone else’s rights. The victims suffer silently not knowing that there is legal redress.”
Excerpts of the interview;
Q: What is meant by sexual harassment in general?
A: When you say sexual harassment the basic meaning is, unwanted sexual conduct. In 1979, Catharine MacKinnon, an American feminist and a visiting professor at Harvard Law School, defined sexual harassment as unwanted imposition of sexual requirement in the context of a relationship of unequal power.
When you say sexual harassment it involves all forms of physical, verbal and non-verbal and visual behaviour.
Generally this behaviour includes, pinching, touching, molesting, kissing , grabbing, winking, using obscene language or words, keeping offensive posters, drawing sexually coloured pictures, sexual comments/remarks and displaying pornography.
With the advancement of science and technology another form of sexual harassment has emerged, for instance sending e-mails or texts with sexually coloured jokes and uploading of sexual images in the intranet of organizations. In future, the forms of sexual harassment may change even further.
Q: In buses and on roads, we see people whistling at women and making personal comments or laughing out loud in offensive ways (eve teasing). Do these fall under sexual harassment?
A: Yes, all these are different forms of sexual harassment. Sexual harassment varies from place to place. It could happen in public transport, educational institutions or even at your own home. It has no ethnic prejudice.
Q: When you say workplaces, at what types of workplaces does such harassment take place most commonly?
A: In workplaces where women employees are engaged in lower wage categories as well as where women internal migrant workers are employed. This could also be witnessed in officers where women representation in managerial positions is less. When women are in decision-making positions, the incidents of sexual harassment have become less.
In households mostly, domestic workers are children and mostly women. They are also subject to different types of sexual harassment. The ILO’s convention Number 189 speaks of decent work for domestic workers.
Q: Who are more vulnerable to sexual harassment?
A: Mostly women workers but it does not say only women workers are being sexually harassed. It could be from the same sex. From a man to another man. But generally in Sri Lanka mostly women are more vulnerable to sexual harassment in workplaces.
Q: When such incidents take place do victims realise that they are being subject to sexual harassment?
A: I would say … when it comes to extreme forms of sexual harassment the perpetrator as well as the victim will know that what is being done is wrong.
But when it comes to other forms of sexual harassment, sometimes even perpetrators do not know their actions amount to sexual harassment and that they are violating the rights of other people. Lack of awareness is a huge issue.
Q: How often do the victims complain about sexual harassment?
A: The number of complaints is rising. One reason is that the number of such incidents may have increased.
The second reason is that awareness on sexual harassment is higher. But, according to my knowledge, still complaints as against the number of incidents are not satisfactory. The victims are reluctant to make official complaints.
One reason may be the ‘patriarchal perspectives’ within our society and also the social stigma. Mostly complaints can be low, because the victims are unaware of remedies available against sexual harassment, or that they are being sexually harassed.
In many instances it is the notion that the woman somehow provokes the treatment that she receives, that prevents her from talking about her experiences and then avoid formal complaints.
Workplace appraisals is another fear factor why the victims keep away from complaining. Unfortunately, many workplaces lack complain mechanisms or grievance handling mechanisms when it comes to sexual harassment.
Q: Is this situation unique to Sri Lanka, with regard to complaints?
A: No. This is a common trend in countries in our region. But in the Western World the issue of sexual harassment is a serious offence and the law has also developed.
Q: In what forms does sexual harassment take place in workplaces?
A: I could say in two forms. One is the ‘Quid Pro Quo’ harassment. This means seeking sexual favours in exchange for employment benefits, such as transfers, promotions, basically ‘something for something’. In other words this is a type of sexual blackmail in employment.
This is generally from superiors to subordinates. It affects the workplace in two ways. Unqualified people get promotions to important positions and this affects the performance of the institution.
When the other party rejects sexual proposals, then it creates a hostile environment. This is mostly among co-workers. It creates an unbearable and intolerable working environment.
Q: How does it affect the victims?
A: It causes fear, shock, anger and shame. It also affects their physical and emotional integrity and also psychological integrity.
It deprives the victim the right to work with dignity. It reflects in their performance, they may not be committed in their work, they will lose interest, hence the quality of their performance will slump. Absenteeism becomes common and ultimately the situation may lead to dismissal or quitting the job.
This involves expenses to the employer as new recruits involve training and learning.
The loss to the company will be huge.
Hence, taking preventive measures will prevent losses in individual institutions and to the economic development of the country as a whole.
Sexual harassment also leads to the segregation of the workforce. Females may prefer to go and work in places where they feel safe. It will affect the output of an organisation where women representation in the workforce is high.
Sexual harassment can affect their health and sometimes in worse situations it can lead to suicides.
Q: What are the preventive measures the employer could take?
A: It is unfortunate that there is no law that casts obligation on employers to take preventive measures against sexual harassment. But still the employer could initiate complain committees, grievance handling mechanisms, create awareness and introduce a code of conduct. This will be in the interest of the company as well as the victims and other employees.
Q: What are the legal provisions available in Sri Lanka against sexual harassment?
A: When it comes to Sri Lanka, we have about 35 legislations, to deal with labour issues. But unfortunately we don’t have any legislation which expressly provides for the prevention of sexual harassment at workplaces.
Under the Penal Code Section 345, sexual harassment is prohibited. But that provision is not limited only to the workplace. It applies to all places, wherever it takes place. In addition to that we have the Anti Ragging legislation to prevent sexual harassment during ragging [an offence in itself] in educational institutions.
It is only in the Penal Code that sexual harassment has been identified as a punishable offence. Having a provision in the Penal Code is not effective to prevent sexual harassment in workplaces. mainly because this spells out punishment after the crime is committed. It is not about prevention. When cases are dealt with under the Penal Code it becomes a criminal case. The standard of a criminal case is high, thus it makes it difficult to prove.
Generally sexual harassment takes place behind closed doors. It is difficult to gather evidence to prove the case. The victims too prefer not to get involved in a criminal case.
My opinion is that we need to amend existing legislation and to cast some obligation on the part of the employer to prevent this menace.
Q: When employers demand sexual favours, is it a violation of any law?
A: There is an interesting case in Sri Lanka. This was reported about a decade ago. In a government institution a superior demanded sex from a woman officer in recommendation of a transfer from Colombo to Kalutara.
Then the woman officer took the matter to the Bribery Commission. Finally he was arrested. A case was filed under the Bribery Act. The issue was whether demanding sex could be considered as a form of gratification under the Bribery Act.
The Court decided the action fell within the scope of the definition of gratification. He was convicted.
This is a good example that we could make use of existing legislature enacted for different purposes, to take action against sexual harassment.
Even provisions in the Constitution, Industrial Disputes Act, Trade Unions Ordinance or Workman’s Compensations Ordinance can be creatively interpreted to combat sexual harassment at workplaces.
In other countries the law has developed to the extent, that sometimes the employer can be held liable when it comes to work related suicide. If a worker has committed suicide due to an issue relating to the office and the employer had the reason to anticipate a suicide, action can be initiated against him.
Q: Could this be considered as a human rights issue?
A: Definitely. It is a violation of human rights. Workers have a right to work in an environment where there is no sexual harassment. Workers have a right to work with dignity and when it comes to sexual harassment, it is about human safety and basic human rights. When it comes to gender-based sexual harassment, it may be discrimination on the grounds of sex. It definitely becomes a human rights issue. Many international instruments relating to human rights have principles that may be interpreted to deal with this offence.
The Convention on Elimination of All Forms of Discrimination Against Women, for instance, has principles that can be used against sexual harassment but definitely it is a human rights issue.
Q: Can employers take disciplinary action against harassers/perpetrators?
A: Yes. When it comes to sexual harassment in the work place it is an issue about discipline in the organisation. The Employers can take disciplinary action even if this action is not expressly prohibited in the office. It depends on the nature or gravity of the offence. And also the employer can also take action against sexual entertainment.
The employer is not paying workers for having sex at the work place. Both sexual harassment as well as sexual entertainment come under disciplinary issues. Hence action against them can be initiated.
Q: Could employers be liable under civil law?
A: It is possible, in foreign countries there are many cases where Courts have held employers liable when employees failed to protect their employees. In a situation where the employer had known sexual harassment is taking place, their failure to prevent sexual harassment makes them liable.
There have been other cases in foreign states where employers have been vicariously liable for the acts of their employees within the scope of employers, that is the employer is liable to the actions of others under him.
But the law has developed to a greater extent in other countries. In India there was an important judgement given by the Supreme Court of India. It was known as the Visakha case.
When this case came up, India did not have effective provisions in the legislation against sexual harassment at workplaces. The Supreme Court made many guidelines to prevent this offence in the light of the international conventions to which India is a state party. This action filled the lacuna in the Indian legislation. Now India is making efforts to devise a special legislation to deal with sexual harassment in workplaces.
Q: If Sri Lanka is to bring in laws to combat workplace sexual harassment, where will it fit in best?
A: We could amend the existing labour legislation, may be the Industrial Disputes Act, etc to accommodate the laws. But I would say we could go beyond that and have a special legislation to prevent sexual harassment at the workplace.
Q: When an employee quits the job due to sexual harassment, could she file action seeking relief?
A: Yes, it is possible. When an employee leaves the workplace because of sexual harassment by the employer, that person’s action is not voluntary.
She is leaving because the employers’ actions have created an intolerable situation. In this situation she is forced to leave, this could be considered as constructive dismissal. Then it amounts to termination by the employer. If the person can establish constructive termination, then we have a case before a labour tribunal to seek redress.
Q: Can you file a human rights case against sexual harassment in workplace?
A: When it comes to human rights issues, we have provisions about fundamental rights in the Constitution, but the provisions are applicable when the rights are violated by the Government or its agencies.
For example if the act of sexual harassment is taking place in a government institution, it is possible to file human rights or fundamental rights cases for violation of constitutional provisions.
Q: What is the role trade unions can play to prevent sexual harassment at workplaces?
A: They need to play an important role. They could assist the victims to submit complaints to the top or the police. Sexual harassment in workplaces could be construed as an industrial dispute. Then the unions can take up the matter with the managers.
The unions can also bargain and include provisions in the collective agreements (agreements between trade unions and the employer) to prevent such incidents since Sri Lanka lacks laws that expressly cast obligations on employer to take preventive measures.
The unions can create awareness among their members so that both victims and perpetrators become aware of this offence. But unfortunately the trade unions in Sri Lanka are mostly male dominated, thus they are less concerned about this particular issue.
Q: Sexual harassment against women, is unusually common in Sri Lanka. Not just in workplaces but we experience or witness this in public transport, educational institutions and public places. It may be in a mild manner but lack of respect for women is a serious issue. How can we deal with this?
A: We have to include a chapter in the school curriculum to train children, in an effective manner, on the importance of values. Sexual harassment awareness should be incorporated in programs on Human Resource Management courses and university programs as well. This has to be made a separate course module.
By Manjula FERNANDO