Sexual harassment is any sexually oriented conduct that may endanger the victim’s job, negatively affect the victim’s job performance or undermine the victim’s personal dignity. It may manifest itself physically or psychologically. Its milder and subtle forms may imply verbal innuendo, inappropriate affectionate gestures or propositions for dates and sexual favours. However, it may also assume blatant and ugly forms like leering, physical grabbing and sexual assault or sexual molestation.
As noted by Dickson, CJ of the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd. , in most cases of sexual harassment, the perpetrator misuses “a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands”. Sexual harassment involves “the unwanted imposition of sexual requirements in the context of a relationship of unequal power”.
It is important to bear in mind that the perpetrator of sexually harassing behavior may not be motivated only by sexual desire or lust. The perpetrator may simply be demonstrating his or her power to the victim. In many cases, such behavior may be a by-product of the prevailing stereotypes in the system. Thus, male perpetrators may indulge in sexually-harassing behavior to simply show the female victim ‘her place’ or to convey to her that she is good only for gratifying their sexual desires. While cases involving sexual harassment of subordinates by superior officers may be characterized by the perpetrator’s desire to assert power over the recipients, those involving sexual harassment by co-employees (including subordinates) and outsiders (like the employer’s customers) may be actuated by sheer lust or sexual stereotyping.
The following passage from the decision of the arbitrator in the Canadian Pacific Ltd. and B.M.W.E. (Parker), Re , depicts the wide range of sexual harassment:
“While physical touching and the making of sexual demands may be the crudest form of sexual harassment, giving rise to the earliest complaints and court or tribunal decisions, experience has shown that the concept of sexual harassment can be much broader. Innuendo by words or gestures, unwelcome staring, sexually abusive jokes or other language, the unwelcome displaying of pornography and the writing of graffiti on workplace walls which singles out or demeans individual employees are all now generally recognized as forms of sexual harassment, even though they may not involve an abuse of power or the making of sexual demands by the member of one sex upon a member of the other sex."
The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. The Courts are under a constitutional obligation to protect and preserve those fundamental rights. That sexual harassment of a female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated and that there can be no compromise with such violations,admits of no debate. Referring to the incidents of sexual assaults on working women, the Supreme Court said in Vishaka case: “Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty’. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or profession depends on the availability of a ‘safe’ working environment. Right to life means life with dignity.” Article 42 in Part IV-A of the Constitution which deals with the Directive Principles of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief. Amongst the fundamental duties of the citizen Article 51-A is relevant which states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women.”
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