Introduction With an increasing presence of women at workplace, sexual harassment cases have increased all over the world. It had always existed in the past but most working women accepted it as an occupational hazard and kept quite, bearing it silently but fuming inside. The sad part of it was they had no effective means of redressal and they were often mocked or ridiculed or labeled as trouble makers, in case they complained. It was one's words against another with very few witnesses willing to come forward and testify. Since the number of women at workplace was not large, it did not get noticed perceptibly. Surprisingly, sexual harassment of males by female employees and bosses are also increasing. Cases of women filing false sexual harassment complaints are also on the rise. Despite all the progress we have made in recent times, it is a sad reflection on our society that sexual harassment of women, exists in large numbers and in high places.
The Situation In India, the former Police Commissioner of Punjab, an IPS officer and a Super cop, was accused by a lady IAS officer for patting and stroking her bottom a few years ago. It became a notorious case but its outcome is still not clear. It was being fought in civil courts. Sexual harassment invariably occurs in high places and in high positions and people get away with it by virtue of their power and position.
Ms. ******, formerly of Infosys Inc., USA won a 3 million dollar suit against the company alleging that the former Sales Manager harassed her sexually. It was settled out of court in USA.
In Fiscal Year 2005, the U.S. Equal Employment Opportunity Commission (EEOC) received 12,679 charges of sexual harassment. The EEOC resolved 12,859 sexual harassment charges in FY 2004 and recovered $47.9 million in monetary benefits for charging parties and other aggrieved individuals not including monetary benefits obtained through litigation - Information courtesy www.globalcompliance.com web site.
According to various sources and research, a large number of sexual harassment cases get settled out of courts in many countries through their respective lawyers to save time and court fees. As a result we may not know the exact numbers. It is estimated that 1% of women workforce experience discrimination and/or harassment of sexual nature and around 3 to 4% of non sexual nature in their career all over the world and at all levels of management - Information courtesy MMG Consulting - www.mmgconsulting.biz
There is a very thin line separating sexual harassment and consensual sexual relations in some cases. Some people have an overwhelming power and position for the other party to acquiesce under duress. It is difficult to prove it in a court of law.
Sexual Harassment Almost all countries have sexual harassment laws in place but unfortunately, most employees do not have a clue as to what constitutes a sexual harassment at workplace ? It can be physical, verbal, visual or unwelcome conduct. Expressions of sexual nature or following a person without any work related reason comes under sexual harassment. It is a form of sexual discrimination. The legal definition of sexual harassment is “unwelcome verbal, visual, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.” Unwelcome conduct is not sexual harassment, if it is welcomed by the other party. For this reason, it is important to communicate (either verbally, or in writing, or by actions) to the harasser that the conduct makes you uncomfortable and that you want it to stop and it is not welcome.
Conduct Of a Sexual Nature Any conduct that is of a sexual nature can be sexual harassment, if the behavior is unwelcome and if it is severe or pervasive. Comments about clothing, personal behavior, or a person’s body; sexual or sex-based jokes; requesting sexual favors or repeatedly asking a person out; sexual innuendoes; telling rumors about a person’s personal or sexual life; threatening a person with sexual assault; impeding or blocking movement; inappropriate touching of a person or a person’s clothing; kissing, hugging, patting and stroking. Looking up and down a person’s body; derogatory gestures or facial or body postures. Posters, drawings, pictures, screensavers or emails of a sexual nature.
Non-sexual conduct may also be sexual harassment if you are harassed because you are female, rather than male, or because you are male, rather than female. For example, it may be sexual harassment if you are a woman working on an all-male job and you are the only one whose tools are frequently hidden. The conduct of the harasser must either be severe or pervasive to be called sexual harassment. A single incident is probably not sexual harassment unless it is severe. Although a single unwanted request for a date or one sexually suggestive comment might offend you and/or be inappropriate, it may not be sexual harassment. However, a number of relatively minor separate incidents may add up to sexual harassment if the incidents affect your work environment. Some questions you can ask yourself to determine whether the conduct is pervasive are: How many times did the incidents occur? How long has the harassment been going on? How many other people were also sexually harassed? If you are fired, refused a promotion, demoted, given a poor performance evaluation, or reassigned to a less desirable position because you reject a sexual advance, that certainly is sexual harassment . Even if the conduct does not result in economic injury or change the status of your job, it may be sexual harassment if the conduct unreasonably interferes with your work performance or creates an “ intimidating , hostile, or offensive work environment.” For example, it may be illegal sexual harassment if repeated sexual comments make you so uncomfortable at work that your performance suffers or if you decline professional opportunities because it will put you in contact with the harasser.
Retaliation Not only is sex harassment against the law, but so is retaliating (taking revenge) against someone for complaining about sexual harassment or for participating in an investigation of sexual harassment. Examples of retaliation include: you complain about sexual harassment and are made to take an unpaid leave of absence, although the harasser continues to work; after you write a letter describing sexual harassment that you witnessed, you are reassigned to a less desirable position in the same or different department. If your employer retaliates against you for complaining about sexual harassment or for participating as a witness in an investigation of sexual harassment, you may take any or all of the steps under law. Laws against sexual harassment are designed to protect you from your superiors, co-workers, and customers at work. Both men and women can be sexually harassed. Someone of the same sex can also sexually harass you. While the sexual orientation of a person does not bar him or her for employment under the laws, it does not mean sexual harassment can take place at work by anyone. The law is common and applicable to everyone.
There are no specific actions an employer must take to satisfy the requirement except that it take reasonable care to prevent or stop sexual harassment. An employer may satisfy the requirement of reasonable care to prevent sexual harassment by having and distributing to employees a policy prohibiting sexual harassment and informing employees how to make a complaint. However, if an employer has a policy but does not enforce it, or if an employer fails to investigate sexual harassment complaints but investigates other complaints of misconduct, then the employer may not be taking reasonable care. However, before an employer can be held legally responsible for not taking reasonable care to correct sexual harassment, the employer must be aware that the harassment has occurred. For this reason, it is important to follow the internal grievance procedures, if they exist ,or to otherwise notify your supervisor if you are experiencing harassment. It is sometimes hard to report sexual harassment because you might feel embarrassed or think that it was your fault even though it is not. Reporting sexual harassment to your employer is important. It may or may not stop the behavior but it makes your employer responsible for stopping the behavior. Many do not report it for various real and imaginary reasons but by not doing so they are doing disservice to themselves and fellow employees.
Things to do Remember that every situation is different. There is no one best thing to do. You should always report the sexual harassment to your employer. You then have the option to use your company ’s sexual harassment complaint process, file a charge with a state or federal or central agency , and/or go to court . It is important to talk with a lawyer or legal services organization to discuss your choices. They can help you to under-stand your choices, their benefits and risks as well as the strengths and weaknesses of your case.
Avoid wearing revealing clothes in a predominantly male environment. Though there is no law against fashionable dressing, this is my personal opinion. Most males think that a woman who is fashionably dressed in such a manner is easy picking. You can't blame the men if they look and stare. It is a natural behavior. If they don't do that, they are saints.
Tell the person that his/her behavior offends you. Firmly refuse all invitations. If the harassment doesn’t end promptly, write a letter asking the harasser to stop and keep a copy.
Do not get physical and slap or punch or hit the person with what is available at hand. Two wrongs do not make a right. The minute you do that the people around you and the law are no longer sympathetic to your case and cause.
As soon as you experience the sexual harassment, start writing it down. Write down dates, places, times, and possible witnesses to what happened. If possible, ask your co-workers to write down what they saw or heard, especially if the same thing is happening to them. Remember that others may read this written record at some point. If you take any photocopies, have them notarized. It is a good idea to keep the record at home or in some other safe place. The best place is your lawyers office. Lawyers are generally very good at record keeping and retrieval. They have a unique docket system. Do not keep the record at work. Have all the documents scanned and store them in your computer or web site for easy access and reference.
Tell your supervisor, your human resources department or some other department or person with in your organization who has the power to stop the harassment. If possible, tell them in writing. Keep a copy of any written complaint you make to your employer. It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a co-worker, client or customer’s actions. Even if your harasser was your supervisor, you may need to show that you reported the harassment to your employer or give a good reason as to why you didn’t. Please remember that not complaining may go against you and make people feel that what happened earlier was with your consent and you are complaining now because the relationship has gone sour.
When you report the sexual harassment to your employer, do it in writing. Describe the problem and how you want it fixed. This is important. Do not ask for the person's dismissal or head. This will make you look prejudiced and vindictive. All you want is the person out of your way. Let the employer decide on the person's fate. This creates a written record of when you complained and what happened in response to it. Keep copies of everything you send and receive from your employer. If you have to post the complaint, send it by registered post. Have copies made and send it by registered post to yourself simultaneously. Do not open the envelope as it will have all the necessary stampings. You may need it, if necessary, as proof.
It is your right to see your personnel file under certain circumstances. If you work for a private employer, in certain states including California, you have the right to request and receive copies of everything in your file that you have signed in case you want to file a lawsuit in federal or state court. Employers must not take sexual harassment cases lightly. They may have to pay heavy penalties in such cases. Falsifying, tampering or removal of records is an offense and amounts to perjury.
Many employers have policies for dealing with sexual harassment complaints. You may be able to resolve the problem through this process. To find out your employer’s policies, look in your employee manual/personnel policies and/or speak to a human resources officer. It is important to follow your employer’s procedures.
If you belong to a union, you may want to file a formal sexual harassment complaint through the union and try to get a shop steward or other union official to help you work through the grievance process. Get a copy of your union’s grievance policy and see if it discusses the problems you are experiencing. If you use your union’s grievance procedure, you must still file a complaint with a government agency if you want to file a lawsuit in federal or state court. In India you must file a complaint with the local labor court.
If you want to file a lawsuit in federal or state court, you must first file a formal sexual harassment complaint with the federal Equal Employment Opportunity Commission (EEOC) and/or your state’s fair employment agency (in California, this is the Department of Fair Employment and Housing). If you are a federal employee, follow federal guidelines on how to lodge a sexual harassment complaint.
Do not miss deadlines for filing with the EEOC or other government agency! Do not delay in filing a complaint with your employer! If you start to feel that your employer’s process for dealing with the sexual harassment may not help you, don’t wait to file a formal complaint. This is very important! You can not bring a lawsuit against your employer unless you have first filed a formal sexual harassment complaint with the EEOC or your state fair employment agency. In India you can file a complaint with the local labor court and state human rights commission. In case of any physical abuse you need to file a FIR with the nearest police station. Make sure you collect your copy. You will also need a Doctor's certificate for any personal injury or violation.
Under federal law in California, you have 300 days from an act of sexual harassment to file a formal complaint. Under federal law in other states, you may have only 180 days to file a formal complaint . It is important to check with the EEOC or a legal organization to find out the time limits. Call Equal Rights Advocates or a lawyer to find out what you need to do and when. Under California law, you have one year from an act of sexual harassment to file a formal complaint. The deadlines under other states' laws differ. Call Equal Rights Advocates or a lawyer to find out what to do and when.
After you file a formal complaint with the EEOC or your state’s fair employment agency, you can also consider filing a lawsuit. You can sue for money damages, to get your job back, and you can also ask the court to make your employer change its practices to prevent future sexual harassment from occurring.
Sexual harassment at workplace has become a big universal problem. While every country and state has its own laws, we have given the guidelines as followed in California, USA, which probably has the most advanced legal provisions for sexual harassment at workplace. This California act is being adopted as a model in all states of USA.
Compiled and Written by Madhavan T Gopalachary References:
Document of Equal Rights Advocates, 1663, Mission street, San Francisco, California, USA. www.equalrights.org.
Sexual harassment at workplace - To learn more about this author, visit Madhavan T Gopalachary's Website.
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Madhavan T Gopalachary
(Visit Madhavan's Website)
Madhavan Gopalachary, nick name "madgopes"
(g pronounced as in go) given by IIT
classmates, is a Mechanical Engineer and
an alumnus of Indian Institute of
Technology, Madras having passed out
specializing in IC Engines &
Thermodynamics.
He has nearly 35 years of experience in
the Corporate World. He started off as a
trainee and handled sales, marketing,
manufacturing, product management, profit
center management, strategic planning and
corporate development including R & D in
various organizations and at various
levels before becoming a CEO. His last two
professional assignments were at CEO level
before embarking to start management
consultancy business on January 01, 1998.
He has worked for British, Swedish MNCs as
well as very large Indian business houses.
He has spent a large portion of his time
from June 1998 till date in East African
Countries practicing as an independent
Management Consultant.
More details can be obtained at the
following web sites:
mmg.name/
mtg.html
mmgconsu
lting.biz/
Madhavan's articles can be accessed at www.madgopes.com
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