Dr Bipin Adhikari
As per the General Recommendation No. 19 of the CEDAW Committee: ” Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advance sexually coloured remarks showing pornography and sexual demands whether by words or action.”
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 the objections would disadvantage her and connection with her employment including recruiting or promotion or when it creates hostile working environment. The issue of sexual harassment at the workplace is gaining gradual recognition as a problem of discrimination against women as workers at the workplace.
It is an issue that interfaces with two concerns: violence against women and rights of women in the workplace. Efforts at legal reform for combating violence against women have concentrated on the more extreme cases such as that of rape, while advocacy campaigns for women workers’ rights have concentrated on issues such as equal rights for equal pay, rather than on sexual harassment at the workplace.
Sexual harassment is an attack on a person’s privacy and dignity. It is a manifestation of power relations. Women are more likely to suffer because they lack power, are invulnerable and insecure positions, lack self-confidence and have been socialised to suffer in silence. A recent study by FWLD, Nepal has highlighted the fact that sexual harassment has deep rooted history in Nepal and Nepali workforce; yet, this subject had not been discussed openly in Nepal until a few years ago. The prevalent mental attitude in the society has been “Men will be Men and somehow the Women have to tolerate such behaviour.”
In Meritor Saving Bank FSB v Vinson, the Supreme Court unanimously recognized two types of sexual harassment:
a.) “This for that”, i.e Job related, Sexual Favours/Black Mail: Where there is a demand by a hierarchical superiors directed to a subordinate that the subordinate grant the supervisor sexual favours in order to keep or obtain certain job benefits. This type of harassment involves abuse of authority.
b.) Hostile environment sexual harassment: A broader type of sexual harassment involving unwelcome sexual advances or other verbal or physical conduct of a sexual nature which have the purpose of effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, abusive, offensive or poisoned working environment.
Sexual harassment at the workplace not only affects the individual in question but also the organization. Efforts have to be made in eliminating this persisting problem. In light of this, the newly promulgated Bill is a welcome addition towards addressing the problem. The bill follows the directive order on a writ petition issued by the Supreme Court of Nepal in 2060 giving clear instruction to enact legislation on sexual harassment.
Some of the major provisions incorporated in the Bill are as follows:
a) Addresses the fundamental right of individual to work in a safe environment.
b) Section 4: Incorporation of written, oral, gestural forms of sexual harassment.
c)Section 7: Claim, for sexual harassment, can be brought by the victim/ claimant or any one representing the victim.
d) Section 9: Protection for victim against adverse treatment at work as a result of sexual harassment claim.
e)Section 9: Provision for allowance of added security measures for witness and victims upon formal request.
f)Section 5: Obligations for the state to provide shelter and security measures to such victims.
g)Section 9 (8): Provisions to relocate/transfer such individual who has been proven to commit sexual harassment in order to maintain the sanctity of the workplace.
h)Section 13: Provision for compensation of the amount spent filing the complaint by the victim or any representative filing on behalf of the victim.
i)Section 15: Provision for in-camera proceedings upon request.
j)Section 18: Sexual Harassment to be incorporated in the academic curriculums for awareness purposes.
k)Section 21: Provision to enable Government of Nepal to create policy guidelines for the workplace.
l)Section 8: Provision for reconciliation between the parties through mutual consent. m)Section 13: Provision for jail sentence upto 3 months or compensation upto NPR 25,000 or both. The sentence and compensation to gradually double for repeated conviction.
Despite a lot of positives within the bill, there are persistent shortcomings inherent in the bill. As a result, experts have demanded that the definition of the workplace should be expanded. Similarly, they have advocated for increasing the time for filing complaints. Further, there needs to be more clarity in the complaint registration process and harsher punishment measures should be incorporated for deterrence purpose. Finally, there is a lot of debate on the validity of reconciliation procedures.
In light of this, some suggestions for amendments are as follows:
a) Section 2: Definition of “Workplace” needs to be broadened to include workers from the agriculture sector, informal sector, household workers and people working in unregistered/unorganised construction sector. Example: India’s Sexual harassment of the workplace (prevention, prohibition and redressal) Bill 2012 which includes “Domestic Workers” within its jurisdiction.
b) Section 4: Circumstances need to broaden to include electronic mechanisms through which sexual harassment could occur, i.e. through emails, websites, electronic messages etc.
c) Section 13: The grievous nature of sexual harassment demands harsher sanctions and as such stricter punishments should be proposed for offenders. In addition, the discretionary provision which allows the adjudicator to decide the compensation amount could lead to discrimination and as such it is recommended that a fixed amount scheme should be allocated for victims.
d) Section 8: Reconciliation provision should be scrapped altogether due to the sensitive nature of the sexual harassment cases. In order to deter abuse of power within the workplace, it is recommended that there be no avenues for reconciliation between the offender and the victim.
e) Section 9 Sub-section(8): The provision for transfer of the sexual harassment offender from one office branch to another upon conviction should be scrapped.
f) Section 15 Sub-section (2): The provision for in-camera closed proceedings to be initiated upon request from the victim should be amended to include a general provision to start all sexual harassment cases under in-camera proceedings in light of the sensitive nature of the crime.
In order to eliminate sexual harassment from the workplace, therefore, preventive measures, curative measures and rehabilitative mechanism in favour of the victims need to be activated. Effective implementation of laws, regulations and company code of conduct for workers should be ensured to check that sexual harassers do not go immune and victims’ rights are respected. In the present progressive, forward-looking ethos in Nepal, it is hoped that the socio-political environment will encourage formulation of appropriate strategies/legislation to address the problem of sexual harassment.
Also, talking about employer’s obligation, employer should recognize sexual harassment as a serious issue and treat every complaint seriously, sensitively, fairly and promptly. Where such conduct amounts to a specific offence under criminal law, or any other law, the management should initiate appropriate action in accordance with the law. Mental and physical health check-up facilities should be provided for the victim including legal assistance. Counselling facilities also need to be provided for victims to address psychological trauma. The employer should also make sure that there is no additional harassment and humiliation against the person who complains and the witnesses. Reporting against such incidents should not work against her.
Further, existing labour laws have tried to restrict employment opportunities for women in the name of protection by restricting working hours in many kinds of enterprises. Hence, corrective measure should be taken introducing the substantive model of equality under the policy and law for gender equality and overall development of women. Also, there are large numbers of workers involved in informal sectors as well as enterprises that are exempted from labour legislation.
Therefore, it is advocated for laws to be enacted for these sectors, which must include sexual harassment as a serious offence. Finally, a safe working environment has to be created by the management especially for the employees working in the night shift and special protection should be provided to the women workers in the night shift, implementing the prevailing labour legislation.
Moreover, nationwide training and awareness raising campaigns to raise awareness among workers and others regarding equal working rights and offences of sexual harassment and its effects should be initiated. Also, advocacy for recognition of sexual harassment as an offence should be undertaken. Also, he proposed for adequate measures to encourage victims to report sexual harassment, providing them with necessary support system including legal assistance and medical checkups.
Furthermore, the media should stop using women as a commodity and use its strong influence in forming public opinion, by playing a role in disseminating information regarding offences of sexual harassment and its effects, and help recognize sexual harassment as a crime, a violation of workers’ right to equality and right against exploitation. In terms of reconciliation, mechanisms as proposed in the bill should not be completely scrapped.
In light of certain harassment suits culminating as a result of misunderstandings, it is imperative that reconciliations mechanisms are available to sort out such issues promptly without escalating the incident.
