The truly problematic provision in a draft law against sexual predators at the workplace is the prescription of ‘conciliation’ between complainant and respondent as the first step in redress

Ratna Kapur (in her article titled “Sexually harassing laws,” Op-Ed, September 14, 2012) and I are in agreement on one point — that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2012 by the Lok Sabha is a “landmark” legislation, whose central objective stands in danger of being “lost in the technicalities and poorly conceptualised provisions of the bill.” Ms Kapur takes issue with the definition of sexual harassment, in that it has the potential to allow a woman to complain that an instance of “sexual gestures, offensive remarks, lurid stares, embarrassing jokes or unsavoury remarks” has created a hostile working environment for her.

Her objection is two-fold: one, by this latitude, the law makes acts that would at best cause “embarrassment to some,” the basis of an official complaint; two, these definitions have the potential of resulting in the curtailment of sexual speech and humour in the workplace, ultimately encroaching on rights to sexual autonomy. However, the question we must ask ourselves is whether the concerns that she expresses will be better addressed in a law that does not have these provisions.

From my experience in addressing matters of sexual harassment in a number of universities, there is no doubt that such a rich definition of sexual harassment is indeed required. Consider two examples.

In an undergraduate class, five women students were subjected to ridicule and lurid gestures by their male classmates both in and outside class, for a whole year, before they made an official complaint. Although there was no physical component to the violation, and no request for sexual favours, there was sustained harassment, including incidents in which a male student stripped off his shirt when the girls came into class, and a social boycott of the women who objected to repeated sexist remarks. Although technically, this constant harassment had no impact on the grades they received from teachers, the stress and anger caused by such discriminatory behaviour took a heavy toll on each complainant’s health and productivity.

In another example, the setting is a university in which teachers and students live on a campus together, and the campus has a culture in which students frequent teachers’ homes. Suppose that one faculty member insists that his woman research student meet him only at his home on campus, and only at times while his wife is away at work. No physical contact ever takes place, although there is something in the way that he looks at her, and the woman student felt progressively more and more uncomfortable. Ultimately the dread of another appointment at his home forces her to abandon her PhD and leave the university. Without a definition of sexual harassment wide enough to admit this research student’s complaint, no violation of her right to livelihood and autonomy can be institutionally recognised.

This is not to say that the questions Ms Kapur raises are irrelevant — indeed it will be prudent to take note of the caution she has advised. However, a mere narrowing of the scope of a definition of sexual harassment will not check the societal impulses of the moral and sexual policing of women; in fact, it may well be that this very definition could become the countervailing force that is needed to thwart them.

In fact, the devil lies in at least two other details of the Bill, which should be opposed vociferously (see a detailed critique on http://www.pragoti.in/node/4762). The first is Clause (10), which mandates that the first step of addressing a complaint of sexual harassment is “conciliation” between the complainant and respondent. Once a settlement has been reached, the Bill mandates “no further enquiry.” Can a mere complaint be a basis of conciliation? Surely the basis and terms of any settlement can only be determined by establishing that an act of sexual harassment has taken place, and the extent of its nature and severity.

While there has been some debate on the unfairness of Clause 15, the perils it poses for complainants has not been highlighted enough. Given that internal complaints committees are to be handpicked by employers from “senior” levels, it is quite likely that a junior woman employee will come under pressure to request conciliation rather than persist with their complaint. Moreover, the Bill creates hostility for women complainants by turning “conciliation” into a normative and foremost expectation of law. As per the Bill, it is only upon refusal to reconcile or non-fulfilment of the terms of the settlement, that an inquiry would be initiated — a provision that stands in direct contravention of the Vishaka judgment.

Clause 15 for “determination of compensation” is also problematic in that it seems to suggest that every case could merit the payment of “compensation.” More alarmingly, the Bill perverts the principle of employer liability, by holding that damages are to be ‘recovered’ from the person found guilty of sexual harassment. This, along with the provision that the quantum of damages must be determined bearing in mind the ‘income and financial status of the respondent,’ frees employers of all liability. Big corporations like Infosys, who recently settled a sexual harassment lawsuit for $3 million in the United States, would surely welcome this cap; but it will also benefit that small factory owner whose male employee absconds after molesting a woman employee, as all the owner has to do in such cases is to “direct” the respondent to pay the woman the damages. The provision for compensation must be reframed, so that it is paid to the victim by her employer, who may be allowed to retain the option of recovering the amount from the respondent.

(Ayesha Kidwai is Associate Professor, JNU.)

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