With so many South Asian countries evolving their harassment laws Helen Rowe
examines the changing times in India
It is a situation almost every HR director dreads. A female employee claims
a male colleague has sexually harassed her. Initial inquiries reveal there may
well be a case to answer. An embarrassing and expensive court case looms. Worse
still, it looks likely to end in heavy compensation being awarded against the
employer.
For HR practitioners in India, the situation is very different. Although the
Indian constitution does set down certain rights relating to gender equality, there
are no specific laws banning sexual harassment at work. In fact, despite the
huge growth in cases brought by employees elsewhere globally, there remains
relatively little pressure on Indian companies to prevent sexual harassment in
the workplace.
However, two rulings by the Indian Supreme Court over the past five years
appear to indicate that the status quo may be starting to change, albeit very
slowly. Although both rulings seem to have been widely ignored so far, they
have implications for all employers operating in India.
The first decision in 1997, Vishaka v State of Rajastan, set down a legally
binding requirement on all companies to provide female employees with
protection from harassment at work for the first time.
It ruled that it was laying down "guidelines and norms for observance
at all workplaces" until such a time as legislation was enacted
specifically to deal with harassment at work. As a result of this ruling,
employers are now – in theory – required to take preventative steps including
the specific banning of sexual harassment in employee rules of conduct.
Other measures required include the formation of a committee, headed by a
woman, to which a female employee can complain. Employers must now automatically
initiate disciplinary action following a complaint, and, in some cases, also
call in the police with a view to criminal proceedings.
Measures should also be taken to ensure that a female employee who makes a
complaint does not experience any further harassment. In a second important
ruling in 1999, Apparel Export Promotion Council v Chopra, the Supreme Court
threw out a decision by the Delhi High Court. The Delhi court had directed that
an employee should not lose his job because his attempt to molest a woman was
unsuccessful and as a result there had been no actual physical contact. The
case involved a male employee of the Delhi-based Apparel Export Promotion
Council and a female employee at a hotel who had been sent to work for the
council’s chairman.
The council employee was accused of attempting to "outrage the
modesty" of the young woman, an offence covered by section 354 of the
Indian penal code, rather than any specific legislation relating to the
workplace. A departmental inquiry was held which concluded that the employee
was guilty of gross misconduct and he was subsequently dismissed.
On appeal, the Delhi High Court reversed the decision on the basis that the
employee’s attempt at molestation had not been successful. It ordered that he
be reinstated. The Supreme Court, however, was unimpressed.
It criticised the Delhi court for allowing itself to be influenced by
"insignificant discrepancies" and expressed surprise that "an
employee should be reinstated because he only tried to molest a woman".
It ruled that actual physical contact need not occur for someone to be
charged with molestation, resulting in a redefinition of the term sexual
harassment. Despite these two rulings, India continues to be a long way behind
other regions in both protecting the rights of female employees and penalising
companies that fail to do so.
But as more court cases are brought, there is likely to be increasing
pressure to introduce policies that reduce liability. According to
international law firm Baker & McKenzie, awards in those few cases that
have been brought tend to be on the low side in international terms – a mere
US$847 (40,000 rupees) in one case of a company found to have failed to prevent
a female employee being harassed by her manager.
It advises companies to not only put in place the preventative measures now
required by law but also educate employees about what actually constitutes
sexual harassment in the eyes of the courts.
"The Supreme Court’s decision in the Chopra case demonstrates an
increasing sensitivity towards sexual harassment and the fundamental rights of
women," it says.
"It also sends an unambiguous message to lower courts of their
obligation to protect the right of women to be free from sexual harassment in
the workplace.
"As this trend continues to grow, more cases of sexual harassment are
bound to be brought to trial and decided in favour of victims." Others
believe that the real pressure to eradicate sexual harassment at work is more
likely to come from the boardroom than from the Indian courts.
Jay Easwaran, HR director of the Tality Corporation, electronic product
design specialists employing engineers in 14 locations worldwide including
Delhi, says the threat of legal action alone will not drive change. "If a
woman were to complain of sexual harassment she would be very quickly
ostracised by the male community in the office and they would make sure there
were not too many people taking her side," he says.
"The real pressure is likely to come from the top of enlightened
companies rather than the courts. For example, you tend to find that levels of
sexual harassment are low in multinational companies because they bring their
policies with them to India. That is what will drive it – the value system of
the employer."
According to Sridevi Kalavakolanu, programme manager for Business for Social
Responsibility, employment law in all the South Asian countries is based on
laws left behind by the British and is only slowly evolving. He says efforts to
introduce reforms have been made throughout the region but have so far failed
because of a lack of "political will to push the new laws through".
As a result of an amendment two years ago (1999) to Sri Lanka’s Trade Union
Ordinance 1956, it is now obligatory for employers to recognise a trade union
if it has a membership of 40 per cent or more among its workforce. If
membership is over 40 per cent the union must now be recognised in connection
with general demands. If membership is less than 40 per cent the union must
restrict itself to the voicing of individual grievances.
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