Page 1

Combating Sexual Harassment in Working place Recent trends and Responses:

Introduction: Harassment against women occurred from various sources. There was criminal harassment that usually took the form of kidnapping, rape, public humiliation, trafficking & abuse. Extra-judicial harassment was perpetrated by the prevalent penal system & by members of law enforcing agencies, usually against women in custody. Domestic harassment consisted in battering & even burning of women. And a graphic illustration of social harassment was the custom of karo Kari, killing of women in the family on suspicion of her having formed illicit liaison. None of these got reported on the scale it actually occurred.� Sexual harassment has emerged as an important issue in Bangladesh only recently. Though people experienced what constituted harassment, probably since the beginning of waged labor, the recognition of such behavior as 'sexual harassment' and bringing it under the purview of law is a development of the recent past. The examples of sexual harassment include, but are not limited to, sexual assault or rape, physical harassment including kissing, patting, pinching or touching in a sexual manner, verbal harassment such as unwelcome comments about a person's appearance, dress code, privet life or body, sexual harassment such as winks, nods, gestures with hands ,lags or fingers, licking of lips, written or graphic harassment such as passim or displaying pornographic materials any other suggestive materials that is sexually harassing, as well as


harassment via letters, e-mail and other modes of communication, and any behavior that makes some one emotionally vulnerable and isolated. 1 Harassment might take place both in heterosexual and homosexual relationships. Sexual harassment is not confined to the work premises, and might take place in the bus or on the street on way to workplace. There are different approaches characterizing sexual harassment. The most prevalent is sex stereotype approach. This approach holds the idea that it is discriminatory to behave toward people in a way that is based on sex stereotypes. That is, it is discriminatory to penalize women for not conforming to female stereotypes.

Women viewed as passive and willing recipient of sexual overtures of their male superior and exercising quid pro no for sexual harassment are based on sex stereotype. Sex stereotype also gives rise to harassment by creating hostile work environment by upholding the view that women are unsuitable to. And incapable of, work that is predominantly male controlled. In Bangladesh, sexual harassment is a reality in every woman's life in every field. Hilda (1995) states that "sexual exploitation, humiliation, or causing embarrassment to women in a manner which is an expression of male superiority or a perceived dominance by men who believe that they have an inherent right to victimize women". According to Hilda (1995), ' Women remain silent because of fear of reprisal as well as that of losing one's job and thus one's livelihood....Others do not know from whom to seek advice or assistance to stop the harassment'. In Bangladesh, the Suppression of Violence against Women and Children Act of 31 January 2000 (modified in 2003) for the first time made sexual harassment a criminal offence. The Act states: Any man who. in order to satisfy his lust in an improper manner outrages [he modest of a woman, or make obscene gestures, will have engaged in sexual harassment for this, the above mentioned male will be sentenced to rigorous imprisonment of not more than seven years and not less than two years and beyond will be subjected to monetary tines as well. 2 1 State of Human Rights 1995 of Bangladesh, Bangladsh Manbadhika

2 http://www.yobserver.com/front-page/10012113.html http://www.amnestyusa.org/women/humanrights.htmlS

Samonnoy Parishad; Page 70.


In Bangladesh, the Ministry of Women and Children Affairs is the government mechanism for the advancement of women. There is, however, no government monitoring mechanism to track the effectiveness of this law. Also there is no written code for dealing with harassing behaviors on the street. In spite of this, it is encouraging to have a legal stand at the state level to fight against sexual harassment. But at the micro level, the majority of organizations and companies working in Bangladesh do not subscribe to or follow any standard policy on sexual harassment in the work – place.

Chapter one: Defining Sexual Harassment in work place: At the very starting of the discussed the readers should be clear about some definitions: Work place: Work place means any premises or yard where industrial process in carried on. It is according in the Bangladesh Labour Code, 2006. Workplace is a refereed, open access journal published by a collective of scholars in critical higher education promoting a new dignity in academic work. Contributions are aimed at higher education workplace activism and dialogue on all issues of academic labor.

Harassment: Harassment covers a wide range of offensive behaviour. It is commonly understood as behaviour intended to disturb or upset. In the legal sense, it is behaviour which is found threatening or disturbing. Sexual harassment refers to persistent and unwanted sexual advances, typically in the workplace, where the consequences of refusing are potentially very disadvantageous to the victim. Famous research man Mr. Sanker said, Sexual harassment means talking to someone who is not interested to hear about sexual matters. It could be a boy or girl. Stalking somebody, show abusive signs, talk vulgarly, sending indecent mails or making abusive phone calls etc., can all be termed as sexual harassment? Development of women and gender studies


People who nurture positive thoughts never hurt their partners and harass them in any manner. Where there is true love, there is care, concern, sacrifice, mutual respect etc. one must learn to behave properly in a civilized society and not harass anybody.

Sexual harassment:

In the leading case of Vishnka v. State of Rajasthan1 ("Vishaka") the Supreme Court has defined "sexual harassment" as follows: "Sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as: Physical contact and advances; A demand or request for sexual favours; Sexually-coloured remarks; Showing pornography; Any other unwelcome physical, verbal or non-verbalconduct of sexual nature.Where any of these acts are committed in circumstances under which the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work (whether she is drawing salary, or honorarium or voluntary service, whether in government, public or private enterprise), such conduct can be humiliating and may constitute a health and safety problem, it amounts to sexual harassment in the workplace ("SHW"). It is discriminatory, for instance, when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work (including recruiting or promotion), or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. This definition is found in the guidelines formulated by the Supreme Court in Vishaka for the prevention and punishment of SHW. In discussing the definition of sexual harassment, this


manual assumes that it would be sufficient to establish that conduct comes within the definition of sexual harassment in the Vishaka guidelines in common law jurisdictions, the law generally categories sexual harassment at the workplace into two types. The first, termed "quid pro quo harassment", consists of sexual demands accompanied by the threat of adverse job consequences if the demands are refused. The second, termed "hostile environment" harassment consists of conduct that renders the environment-at the workplace offensive or derogatory to the victim by reason of her gender. Both types of sexual harassment are incorporated in the definition of sexual harassment in Article 2 of the Vishaka Guidelines3. The concept of "quid pro quo harassment" is present in Article 2 in reference to unwelcome sexually determined behavior in circumstances such that a woman believes that "her objection would disadvantage her in connection with her work." Article 2 also refers to unwelcome sexually determined behavior that creates a "hostile work environment". Since the definition of sexual harassment in the Vishaka Guidelines draws from law developed in other common law countries, judgments from these countries on sexual harassment can be referred to in illustrating and explaining the meaning of SHW.

According to the Supreme Court of Canada in the case of Janzen v. Platy Enterprises, Ltd. 2 ("Janzen"), conduct that constitutes sexual harassment varies "from overt gender based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment."

The Court quoted with approval from a book entitled Sexual Harassment in the Workplace by Arjun P. Aggarwnl The statement that "sexual harassment is any sexually-oriented practice that endangers an individual's continued employment, negatively affects his or her work performance, or undermines his or her sense of personal dignity." The Court also quoted with approval from another book entitled Harassment of Working. 3 524 US 743(1998) (1989)1SCR1252

The Secret Oppression Sexual


Same-Sex Sexual Harassment

In the case of On cal, by approaching a complaint of sexual harassment from the point of view of whether the conduct complained against was derogatory in a gender-related manner, and not restricting the definition of sexual harassment to conduct having sexual content, the US Supreme Court has opened the door to complaints of sexual harassment against a person of the same-sex. According to the US Supreme Court, a complaint may be made out even where a woman is harassed in sex-specific and derogatory terms by another woman in a manner that makes it clear that the harasser is motivated "by general hostility to the presence of women." This development in the law would be helpful, for instance, to women who find themselves being passed-over or otherwise discriminated against at work by their women superiors for gender-based reasons, such as that "women cannot take the same level of pressure as men," or that "women with families are less committed to their work than men," etc.

Other definition of sexual Harassment: Sexual harassment in this context, (as is described in the Supreme Court Judgment, and the JNU Policy), includes any unwelcome sexually determined behavior, whether directly or by implication, and includes physical contact and advances, a demand or request for sexual favors, sexually coloured remarks, showing pornography and other unwelcome physical, verbal or non-verbal conduct of a sexual nature. a.

When unwelcome sexual advances, requests for sexual favors, a ' verbal or physical

conduct of a sexual nature, explicitly or implicitly are made, a term of condition of instruction, employment, participation, or evaluation of a person's engagement in any academic or campus activity. b.

When unwelcome sexual advances and verbal, non-verbal, or physical conduct such as loaded comments, slander, remarks jokes, letters, phone calls or e-mail, gestures, showing of pornography, lurid stares, physical contact or molestation, stalking, sounds or display of a derogatory nature have the


purpose or effect of interfering with an individual's performance or of creating an intimidating, hostile or offensive campus environment. Quid Pro Quo Harassment The key elements of quid pro quo sexual harassment are a demand for a sexual favour and the threat of adverse job consequences if the demand is refused. It is implicit in the second element that the perpetrator has to be in a position to create adverse job consequences for the woman. Typically, such a person would have to be in a position of authority over the victim, although a quid pro quo sexual harassment situation may also exist vis-a-vis a colleague of the same rank, e.g., where work evaluation takes into account comments from co-workers, or when a co-worker makes sexual demands a condition for cooperating on a team project. Adverse work consequences may be 'tangible' such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, a decision to cause a significant change in benefits, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits and significantly diminished material responsibilities. These are some examples 'is by the US Supreme Court in the case of Burlington v. Ellerth3 ("Burlington"). It should be stressed here that it is not necessary in an allegation of quid pro quo harassment for the threat of adverse employment action to have been carried out. It is sufficient for the complainant to prove that such a threat was made. An example of such a case is Burlington. In 'his case the after reviewing these facts, the Hoiis of Lords stated as follows: "[a]’ he question of whether a reasonable person in her position might regard this as a deinmen', the background is. Hip fact that not only was it the practice for appraisals to be done by the chief inspectors but this was...endemic in the Force. There was evidence that [the chief inspector] had carried out as many as thirty five apj raisals since she was promoted to the rank of Chief Inspector. Once it was known, as it was bound to be, that this part of her normal duties was taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority."


In the opinion of the House of Lords, this was sufficient to establish that the chief inspector had suffered a detriment. Withholding the chief inspector's duty to conduct appraisals, which included counseling the constables, was also seen to be detrimental as it "was liable to detract from the respect accorded to her by her colleagues and to deprive her of an opportunity to impress senior officers with her capabilities." In the opinion of Lord Scott of Foscote, a justified and reasonable sense of grievance about an employment action could constitute a detriment.6 The US Supreme Court decision of Harris v. Forklift Systems7 ("Harris") is illustrative, where the Court held that it is not necessary to show that the behavior complained of impaired the work of the victim or that the conduct caused psychological injury. According to the Court, unlawful conduct may lie between conduct that is "merely offensive" and conduct that causes a tangible psychological injury. The Court stated that "a discriminatorily abusive work environment, evca one that does not seriously affect employees' psychological -veil-being, can and often will detract from employees' job-performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin" was contrary to the principle of workplace equality.

Bullying and Harassment Harassment in the workplace is prohibited under the Employment Equality Act 1998. Employers must also prevent staff from being bullied under the Safety, Health and Welfare at Work Act 1989. Workplace bullying is the repeated inappropriate behavior, direct or indirect, whether verbal, physical, or otherwise, conducted by one or more persons against another or others, at the place of work and /or in the course of employment, which could reasonably be regarded as under manning the individual’s right to dignity at work. An isolated incident may be an affront to dignity at work but as a once off incident is not considered to be bullying. Bullying can involve physical abuse or threats of abuse, loud voiced criticism or obscenities, using rumor, gossip or ridicule to undermine an employee, overloading an employee with


work, withholding information or setting meaningless tasks as well as social exclusion or isolation. Harassment can involve words, gestures or the production, display or circulation of material which are unwelcome to a person and could reasonably be regarded as offensive, humiliating or intimidating. Sexual harassment is defined as: acts of physical intimacy, requests for sexual favours, words or gestures or the production, display or circulation of written words or pictures which are unwelcome to a person and could reasonably be regarded as sexually offensive, humiliating or intimidating to that person. Under the Equal Status Act 2000, employers also have a duty to ensure that clients are protected from harassment by employees. Bullying or harassment can have a serious impact on a person’s well-being. It can cause psychological and physiological damage. People affected by this can change from being happy and confident at work to being isolated and withdrawn. It can also lead to greater levels of absenteeism and sick leave.4 If an employee has a complaint about bullying, a claim for ‘constructive dismissal’ may also be taken under the Unfair Dismissals Acts. If there is a sexual or discriminatory element, a claim may be taken under the Employment Equality Act. Importance of the sexual Harassment: We live in a world in which women do not have basic control over what happens to their bodies. Millions of women and girls are forced to marry and have sex with men they do not desire. Women are unable to depend on the government to protect them from physical harassment in the home, with sometimes fatal consequences, including increased risk of HIV/AIDS infection. Women in state custody face sexual assault by their jailers. Women are punished for having sex outside of marriage or with a person of their choosing . Husbands and other male family members obstruct or dictate women's access to reproductive health

4


care. Doctors and government officials disproportionately target women from disadvantaged or marginalized communities for coercive family planning policies. 5 Our duty as activists is to expose and denounce as human rights violations those practices and policies that silence and subordinate women. We reject specific legal, cultural, or religious practices by which women are systematically discriminated against, excluded from political participation and public life, segregated in their daily lives, raped in armed conflict, beaten in their homes, denied equal divorce or inheritance rights, killed for having sex, forced to marry, assaulted for not conforming to gender norms, and sold into forced labor. Arguments that sustain and excuse these human rights abuses - those of cultural norms, "appropriate" rights for women, or western imperialism - barely disguise their true meaning: That woman’s lives matter less than men's. Cultural relativism, which argues that there are no universal human rights and that rights are culture-specific and culturally determined, is still a formidable and corrosive challenge to women's rights to equality and dignity in all facets of their lives.

The Women's Rights Division of Human Rights Watch fights against the dehumanization and marginalization of women. We promote women's equal rights and human dignity. The realization of women's rights is a global struggle based on universal human rights and the rule of law. It requires all of us to unite in solidarity to end traditions, practices, and laws that harm women. It is a fight for freedom to be fully and completely human and equal without apology or permission. Ultimately, the struggle for women's human rights must be about making women's lives matter everywhere all the time. In practice, this means taking action to stop discrimination and harassment against women.’’

Nature & Scope of the sturdy: The present study is based on the premise that in Bangladesh the popular understanding of sexual harassment is inadequate, it is generally a less reported factor in organizations and that organizations in general lack proper support structure and commitment to the whole issue. In this connection, one could cite, for example, the lack of an enabling policy, absence 5 Reviewed: September 28, 2006 http://wwwBullying.org/women/humanrights.htmlS


of separate sexual harassment handling team/cell and of the evidence of taking disciplinary actions against harasser, and lack of moral support and encouragement especially for the women staff to speak out the issue. The research seeks to explore and validate such premises. In doing so it focuses on what the staff members of an international and a national' organization in Bangladesh see as sexual harassment (i.e. their definition of sexual harassment) and the support and commitment of the organizations to deal with and act on sexually harassing behavior. Along with this, the paper discusses about the legal provision (both international and national) which can facilitate addressing the issues of sexual harassment at an organizational level.6

Chapter two: Practical guide for identifying instances of SHW: I light of the definitions enumerated in chapter one, we may create a cheek list of the key elements of sexual harassment. Verbal Harassment are those : * Asking for or demanding sexual favors * Making comments with sexual overtones, suggestive remarks, double entendres * Talking to the woman employee about the wife * Making comments about a woman's pregnancy, or (related matters such as lack of children, etc.) * Insulting publicly,

saying something

demeaning, humiliating

* Commenting on personal appearance especially about parts of the body 6 .http://www.hrw.org/women/?PHPSESSID=f2b15928728c8d37f35d853e0099c6a


* Making obscene remarks, cracking obscene jokes, singing obscene songs * Asking personal questions about abortion, etc. upon submission of medical bills * Linking up with top bosses, "male bonding" and commenting/gossiping about women staff * Calling late at night, crank calls, leaving lewd messages on answering machine * Talking with unnecessary touching, brushing against another's body * Calling to the cabin unnecessarily (e.g. pretending to need a file) * Teasing and using names such as "darling", "honey", "sweetheart", etc. * Discussing marriage, fertility and other personal issues (i-'.g., "why don’t you wear sin door, ring, etc. ?") * Swearing unnecessarily, getting drunk and talking "nonsense" * Making sexist remarks, misogynist humor * Discussing somebody's sexuality in public without their consent * Making passes Conduct of a Sexual Nature is: * Physical contact or advances * Touching, pinching, grabbing, holding, rubbing up against, etc. * Sexual assault * Coming and sitting in the hotel room and drinking when out for conferences * Creating scenes in public * Following you * Cornering, trapping or blocking a person's pathway * Forcibly entering public transport * Forcing one to smoke * Locking the door while discussing work * Landing up at the residence every Sunday * Making a woman conscious of her surroundings, herself * Making it difficult for a woman to come to the office * Asking the woman to dress in a particular way * Opening belt after eating * Sitting in an obscene manner * Leering or staring at another's body and/or sexually suggestive gesturing


* Stalking * Drinking in the office * Excessively lengthy handshakes * Display of pornographic material or sexual explicit written material * Display of sexually visual material such as pinups, cartoons, graffiti, computer programmers, or catalogues of a sexual nature * Sending

e-mails

with

propositions,

advances, pornographic or

inappropriate materials, sexually colored remarks or jokes, etc. The Discrimination Amounting to Sexual Harassment: The core elements of discrimination amounting to sexual harassment may be------* Disallowing women to come up above a particular grade * Failing to provide rest rooms, ladies toilets and day care centers * Addressing certain issues to men and certain to women * Giving extra work simply because the employee is a woman * Trying to unnecessarily find fault with work * Not a friendly work environment for women * Giving more attractive assignments to men * Commenting on a women's attributes rather than her work * Treating a woman like an ornament * Making the women give bouquets, etc. * Refusing to take complaints seriously *

Condoning

acts

of

SHW

by

actively

encouraging

or

passively not

taking affirmative steps to prevent them * Asking unwarranted questions when women want to take leave * Gender stereotyping * Discriminating on the basis of sexual orientation * Trivializing the issue, telling a woman who complains of harassment to forgive and forget Unacceptable Victimization : In the category of unaccepted victimization the following issues are included------


* Threatening harm to victim and her family * Transferring * Giving bad Annual Confidential Reports * Defaming on refusal * Making physical threats and attacks * Terminating services * Stopping increments, promotion * Troubling and involving relatives and friends * Hiring hoodlums to harass you * Conducting bogus inquiries * Intimidating or threatening the peers in whom the victim confided * Filing defamation suits * Threatening witnesses

Chapter three: ‘Sexual Harassment’ as defined in other parts of the word: EEOC, United States of America In 1980 the American Equal Employment Opportunity Commission produced one of the first set of guidelines dealing with sexual harassment." The Commission took the position that sexual harassment was a violation of Title VII of the Civil Rights Act of 1964. US courts including the US Supreme Court have approvingly referred to the EEOC guidelines while deciding complaints of discrimination on ground of sex under Title VII. The EEOC guidelines have been quoted with approval even by courts and human rights tribunals in Canada. The EEOC guidelines define 'sexual harassment' as follows: Harassment on the basis of sex is a violation of Section 703 of Title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or


rejection of such conduct by an individual is used as basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. In

determining

whether

alleged

conduct

constitutes

sexual harassment, the

Commission will look at the record- as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis."7 In California, the Fair Employment& Housing Act [The Californian Administrative Code, Title 2, Regulation 7287.6 (1988)] defines the term "harassment" as employed in the Act, thus: (1) Harassment includes but is not limited to: Verbal harassment, e.g., epithets, derogatory comments, or slurs.... Physical

harassment,

or

physical

any

e.g.,

assault,

interference

with

impeding normal

or work

blocking or

movement,

movement

when

directed at an individual .... (O Visual forms of harassment, e.g., derogatory posters, cartoons or drawings .... (D) Sexual favors, e.g., unwanted sexual advances which condition an employment benefit upon an exchange of sexual favors .... (ÂŁ) In applying this sub-section, the rights of free speech and association shall be accommodated consistently with the intention of this subsection." United Kingdom: In the UK courts have held sexual harassment to be a conduct prohibited by the Sex Discrimination Act, 1975. However, the term 'sexual harassment' is not found in the 1975 Act; nor is such conduct expressly dealt with therein. The 1975 Act is essentially designed to

7 ILO, Sexual Harassment at work: National and International Responses,2005.deirdre McCann p.3,20


deal with the mischief of discrimination "on the ground of sex", i.e., gender specific discrimination. Section l (l) (n) of the Sex Discrimination Act, 1975 provides: "A person discriminates against a woman in any circumstances relevant for the. purposes of any provision of this Act if— (a) on the ground of her sex he treats her less favorably than he treats or would treat a man."8 Section 2(1) of the Act provides that Section 1, and the provisions of Parts II and III of the Act relating to sex discrimination against women, are to be read us applying equally to the treatment of man, with the requisite modification-;. Section 6(2), which

8 45 federal register 74,677(10th November,1980),codified in 29(CFC),section1604.11


is in Part II of the Act, provides that it is unlawful is a person, in relation to employment by him at an establishment in Britain, to discriminate against a woman by dismissing her, or subjecting her to any other detriment. The courts have defined 'sexual harassment' in cases arising out of the Sex Discrimination Act, 1975. They have held it to be a "detriment" within the meaning of Section 6(2) of the Act.14 "Detriment" means a disadvantage suffered by the complainant and encompasses both tangible economic loss (quid pro quo sexual harassment) and deterioration of the working environment to the point where the harassment, being severe or pervasive, detrimentally affects the complainant (hostile working environment sexual harassment).

Canada In Canada, the Canada Labour Code defines ‘sexual harassment’ as follows: "Section 247.1.[Sexual harassment' means any conduct, comment, gesture or contact of a sexual nature (a) that is likely to cause offence or humiliation to any employee; or in 1989, Dickson, CJ for the Supreme Court of Canada also endorsed a broad approach for defining the terra sexual harassment, thus: "Without seeking to provide an exhaustive definition of the term, 1 am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse in-related consequences for the victims of the harassment. It is, as Adjudicator Shame observed in Bell v. Latins, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being."

Australia Before its amendment in the year 1992, the Federal Sex Discrimination Act, 1984 defined the term 'sexual harassment' as under:


"A person shall, for the purposes of this section, be taken to sexually harass another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favor, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and (a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or9 (b) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work. "Section 28(4) of the above Act provided, "A reference in sub-section (3) to conduct of a sexual nature in relation to a person includes a reference to the making to, or in the persons of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing." In 1992, the commonwealth House of Representatives Standing Committee on Legal and Constitutional Affairs, Australia conducted an inquiry regarding equal opportunities and status for women. The Committee recommended repeal of Section 28(3) of the Sex Discrimination Act and its replacement by a new section containing a birder definition of 'sexual harassment'-. Resultantly, the Sex Discrimination Ac

was amended by the Sex

Discrimination and Other Legislation Amendment Act, 1992. Section 28(3) was repealed and replaced by Section 28-A that defined sexual harassment in broader terms. Section 28-A of the Sex Discrimination Act provides, thus: "A person sexually harasses another person if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed In circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated." 9 Canada Labour Code,s.17,part 3,source:www.canlii.org (1980)1CHRR D/155(Ont. BD.)


Queensland provides for a yet broader definition of sexual harassment in Section 119 of the Anti-Discrimination Act, 1991: "119 Sexual harassment happens if a person— (n) subjects another person to an unsolicited act of physical intimacy; makes an unsolicited demand or request (whether directly or by implication) for sexual favors from the other person; or makes a remark with sexual connotations relating to the other person; engages in any other unwelcome conduct of a sexual nature in relation to the other person; (e) with the intention of offending, humiliating or intimidating the other person; or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Section 120 of the Anti-Discrimination Act, 1991 provides as follows: "120. The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include — (a) the sex of the other person; and (b) the age of the other person; and (c) the race of the other person; and (d) any impairment that the other person has; and (e) the relationship between the other person and the person engaging in the conduct; and (/)

any other

circumstances of the other person."

New Zealand In New Zealand, the Employment Contracts Act provides that "an employee is sexually

harassed

...

if

that

employee's

employer

or

a representative of that

employer (a) makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity which contains (i) an implied

or

overt

promise

of

preferential treatment in that employee's employment; or an implied or overt threat of detrimental treatment in that employee's employment; or an implied or overt threat about the present or future employment status of that employee; or (b) by the use of words (whether written or spoken) of a sexual nature; or physical behavior of a sexual nature, subjects the employee to behavior which is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) is either repeated or of


such a sign; leant nature that it has' a detrimental effect on that employee's employment job performance, or job satisfaction" Switzerland In Switzerland no statute explicitly defines sexual harassment. However, one court has defined 'sexual harassment in these terms: "Persons who in their position of employer (physical person), supervisor or collaborator, take advantage of their position or influence in an enterprise to harass an employee or a job applicant of the same sex or of the opposite, by unwelcome propositions, immoral comments, images, objects, gestures or undesired behavior, ... with the goal of directly or indirectly obtaining sexual favors in making understood either verbally or „ tacitly that the acceptance or refusal of such favours should or could constitute a decisive criterion for the signature, content, means of application or the continuation of an employment contract, or ... with the goal, or with the result, of poisoning the existing or future working environment", would be guilty of committing sexual harassment. International Confederation of Free Trade Unions (ICFTU), 1986

10

The 'union guide on sexual harassment at work' published by the Women's Bureau of the International Confederation of Free Trade Unions (ICFTU) in 1986 defines and describes 'sexual harassment' as under:

10 Combating Sexual Harassment at Work,p.131 Vol.11, 1/1992.ILO,S.29(1)


"What is Sexual Harassment? Sexual Harassment is any repeated and unwanted verbal, physical or gestural sexual advances, sexually explicit derogatory statements, or sexually discriminatory remarks made by someone in the workplace which are offensive to the worker involved, which cause the worker to feel threatened, humiliated, patronized or harassed, or which interfere with the worker's job performance, undermine job security or create a threatening or intimidating work environment. It is a new name for a problem which is certainly not new. It is not sexual flirtation based on mutual consent. Sexual harassment is frequently a display of power, which is intended to intimidate, coerce or degrade another worker. It is a form of victimization about which increasing concern is being expressed in the workplace. Sexual harassment encompasses a wide range of unwanted sexual advances including unnecessary physical contact, touching or patting; suggestive and unwelcome remarks, jokes, comments about appearance and deliberate verbal abuse; leering and compromising invitations; use of pornographic pictures at the workplace; demands for sexual favours; or physical assault. 11

United Nations: The Committee on the Elimination of Discrimination against women constituted by the

United Nations in is General Recommendation (January 1992) titled 'Violence again women said that 'sexual harassment' is a form of gender-based violence. It is gender based because "it is directed against a woman because she is a woman or which affects women proportionately". This in chides "acts which inflict physical, mental or sexual harm or suffering, threats of such acts (and) coercion". The Recommendation defined the term 'sexual harassment' as follows:

11 SCC 241: AIR 1997 SC3011. Combating Sexual Harassment at work,p151-155,Sourch:ILO


"Sexual harassment includes such unwelcome sexually determined behaviour as physical contacts and advances, sexual) colored remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment." India: In India, in the absence of any statutory definition of the term sexual harassment, it was left to the Supreme Court to do the needful. Relying on international conventions and norms, particularly General Recommendation No. 19 (January 1992) of the Committee on the Elimination of Discrimination against Women (CEDAW) constituted by the United Nations, the Supreme Court defined the term sexual harassment for the first time in the year 1997 in Vishaka v. State of Rajas than. The definition is almost in puri materia with the one proposed by the CEDAW, United Nations and reads: "sexual harassment includes such unwelcome sexually-determined behaviour (whether directly or by implication) as: (a) physical contact and advances; (b) a demand or request for sexual favours; (c) sexually-colored remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection) disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.'


The above definition of 'sexual harassment' as provided by the Indian Supreme Court, thus, recognizes both forms of sexual harassment, viz., quid pro quo sexual harassment and hostile environment sexual harassment. "An analysis of the above;' definition," said Dr A.S. Anand, CJ in Apparel Export Promotion Council v. A.K. Chopra ''shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her." The judgment of the Mumbai High Court in Saudi Arabian Airlines, Mumbai v. Shehnaz Mudbhatka illustrates how a typical case of sexual harassment may include both quid pro quo and hostile environment elements. In this case the victim, a lady, was employed with the Saudi Arabian Airlines as Secretary to the Station Manager. One B, a male, subsequently took charge as Station Manager (Airport). The said B made "repeated attempts to transgress the limits of healthy working relationship" with the victim who was his subordinate. B used to make persistent demands to the victim that she should come out with him for lunches and dinners, which she politely declined. Then he started making indecent and objectionable personal remarks, like, for example, asking her the details of the method of family planning followed by her. Now, this was not a purely personal matter with which neither he nor any other superior officer could have any concern. Naturally, the victim protested vigorously against such offensive, unwelcome personal remarks. She also told B politely, but in unmistakable terms, that she had no interest in having any personal relationship with him as it offended her moral values. However, this polite rebuff evidently offended the macho male ego of B and he then started systematically harassing her. The victim was denied the promotion due to her. Instead, her junior was promoted. B's improper requests and unwelcome sexual advances, however, continued during the day-to-day working. When a second vacancy for the promotion post for the victim arose, she made a representation requesting for being promoted. Soon thereafter B telephoned to her residence around midnight and asked her to visit his residence right away to discuss the issue of her promotion. The victim considered the suggestion extremely offensive, expressed .her displeasure at the conduct of B and reported


the matter to the Petitioner's entry Manager (India), who assured her that suitable action would be taken sit. The Country Manager also requested her "not to make a big issue" of conduct by officially making a written complain .if the incident, as it would, reparation as well as the prestige of the- Petitioner Airlines. The Country Manager without is putting anything on record. Palled up and this led lo B adopting vindictive attitude towards the victim. Her representation was totally ignored and the promotion was given to someone else who was her junior and in fact had been trained by her on several job functions. The constant harassment at work led is to continued mental tension and anxiety for the victim and resulted in her sickness and applying for leave as approved by the Petitioner's doctor. Even after she resumed work, B continued to sexually harass and humiliate nearby issuing her false memos on untrue and trouped up allegations of negligence in work. Her request for a vacation was rejected. She was denied training facilities. Though serious mistakes of other staff were overlooked, but she was promptly given warning letters on petty and, on occasions, non-existent grounds. She was even forced to carry out typing work which was not part of her regular job. The continued harassment meted out to the victim constrained her to complain to her Supervisor, seeking his intervention in the matter. When the Supervisor sought clarifications from B, the latter immediately sent the victim on leave, though earlier he had rejected such leave. However, when the victim attempted to resume duty on the expiry of her leave, she was not allowed to do so for four days, nor was she allowed to sign the muster-roll or perform any other duties despite her going to the office every day. During this period of four days, B threatened her that she would be dismissed from work and that he would make sure that the job of her husband in Saudi Arabia would be put in danger. During that period the victim was living alone in Mumbai with two small children. Her husband was employed in Saudi Arabia. The pressure tactics of B resulted in creating an acute state of mental anxiety on the part of the victim and enabled B to extract an apology letter from her, after which she was taken back on duty. While taking the said apology letter, B assured the victim that it would not be used for official purpose. Contrary to this assurance, B got her suspended


without wages for five days. When the victim resumed her duty and told B that the suspension was illegal and that she would take up the matter with the Head Office of the Petitioner in Saudi Arabia, B complained to the Country Manager who summoned the victim to his office and threatened her that, with the help of the Consul General of Saudi Arabia, he would ensure that her husband lost his job in Saudi Arabia if she attempted to challenge the suspension order. Left with no recourse, the victim succumbed to this threat and endured the punishment, though it was based on false grounds and was without basis.12

Chapter Four Sexual harassment in hostile work environment Hostile Work Environment Frequently, a quid pro quo situation does not exist. Many sexual harassment victims are never threatened with termination or lack of advancement. Rather, they suffer repeated abuse by a hostile work environment, which is an alternative ground for bringing a Title VII sexual harassment action. A hostile work environment arises when a co-worker or supervisor, engaging in unwelcome and inappropriate sexually based behavior, renders the workplace atmosphere intimidating, hostile, or offensive. In one early case, Bundy v. Jackson, the District of Columbia Circuit Court of Appeals characterized hostile environment cases as presenting a "cruel trilemma." 53 In Bundy the victim had three options: (1) to endure the harassment, (2) to attempt to oppose it and likely make the situation worse, or (3) to leave the place of employment. A hostile work environment, the court held, represented discrimination under Title VII and constituted grounds for legal action. Over the next few years other courts followed this holding. In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, endorsed the notion of a hostile work environment. Placing strong emphasis on EEOC guidelines, the Court held such sexual misconduct constitutes prohibited sexual harassment, even if it is not linked directly to the grant or denial of an economic quid pro quo, where "such conduct has the

12 (1999)2LLJ109(Bom);(1999)1CLR597SC;AIR1999SC625;(1999)1SCC759.


purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." This decision set the stage for a broader definition of sexual harassment. It also gave rise to a debate over two related issues: What degree of abuse is needed to constitute hostility that interferes unreasonably with a victim's work performance, and what is the nature and extent of an employer's liability for a hostile work environment. What Is a Hostile Work Environment? As part of its decision in Meritor, the Supreme Court stated that a hostile work environment constitutes grounds for an action only when the conduct is unwelcome, based on sex, and severe or pervasive enough "to alter the conditions of [the victim's] employment and create an abusive working environment." This standard raises numerous questions. What is unwelcome? When is conduct based on sex? Are employees allowed to flirt on the job anymore? Can they tell off-color jokes? What happens when someone gets offended? Who decides what is appropriate, and what is not? Should employees be required to tolerate some minimal level of offensive sexual behavior within the workplace? The EEOC itself has stated, "Title VII does not proscribe all conduct of a sexual nature in the workplace." The line is drawn between acceptable sexual conduct and sexual harassment where the conduct becomes unwelcome. However, as the courts continue to grapple with the definition of unwelcome sexual conduct, their decisions has not followed a predictable pattern. Nonetheless, the courts now grant relief for sexual harassment far more often than they did initially. Today, courts will more likely find an illegal hostile environment present when the workplace includes sexual propositions, pornography, extremely vulgar language, sexual touching, degrading comments, or embarrassing questions or jokes. The following cases illustrate conduct that creates a hostile work environment. (1) In Hall v. Gus Construction Co., a construction company hired three women to work as "flag persons" or traffic controllers at road construction sites. Male co-workers immediately and continually subjected the women to outrageous verbal sexual abuse. One of the three women developed a skin reaction to the sun and the men nicknamed her "Herpes." When the women returned to their car after work one day, they found obscenities written in the dust on their car. Male co-workers continuously asked the woman if they wanted to engage


in sexual intercourse or oral sex. In addition to the verbal abuse, the women were constantly subjected to offensive and unwelcome physical contact. On one occasion, the men held up one of the female employees so that the driver of a truck could touch her. The men subjected all three women to other types of abuse, including "mooning" them, showing them pornographic pictures, and urinating in their water bottles and automobile gas tanks. The company's supervisor was well aware of all of these activities. The court found this conduct violated Title VII because it was unwelcome conduct of a sexual nature, even though it did not contain "explicit sexual overtones." (2) In Robinson v. Jacksonville Shipyards, Inc., a shipyard company employed a female welder who was continually subjected to nude and partially nude pictures posted by her male co-workers. The men posted these pictures not only in common areas, but also in places where the victim would have to encounter them, including her tool box. The men referred to the victim as "baby," "sugar," "momma," and "dear." In addition, the men wrote obscene graffiti directed at the victim all over the plant. The men also made numerous suggestive and offensive remarks to the victim concerning her body and the pictures posted on the walls. The victim complained about this atmosphere of harassment on a number of occasions, but the company's supervisory personnel provided little or no assistance. The court found this conduct violated Title VII because the plaintiff belonged to a protected category, was subject to unwelcome sexual harassment, the harassment was based on sex, it affected a term or condition of her employment, and the employer knew or should have known about the harassment and failed to take remedial action. (3) In Waltman v. International Paper Co., the harassment began when a co-worker broadcast over the company's public address system obscenities about the female victim, who then received over thirty pornographic notes in her locker. The men covered the walls of the facility and the elevator with pornographic pictures and crude remarks concerning the victim. In addition, one of the victim's supervisors told her that she should have sex with a certain co-worker; he also physically accosted her. Another employee told the victim that "he would cut off her left breast and shove it down her throat." On another occasion, this same employee held the victim "over a stairwell, more than thirty feet from the floor." Other male employees also physically grabbed and pinched the victim. The court found this conduct stated a claim of hostile environment discrimination under Title VII, because


employees touched her in a sexual manner, directed sexual comments toward her, and continued to write sexual graffiti throughout the workplace. Even though these examples involved blue collar workers, the problem of sexual harassment permeates all businesses and reaches upper management. No company or supervisor can prudently ignore the problem. Another issue concerning hostile environment cases is whether a victim may only recover for sexual harassment aimed at the victim, or whether she may cite examples of sex-based conduct directed at other employees to establish her prima facie case. A number of courts have held that incidents involving employees other than the victim are relevant in establishing a generally hostile work environment. In the last few years, new rulings have introduced another element into the fray. In 1991, the U.S. Court of Appeals for the Ninth Circuit stated that sexual harassment should be examined from the perspective of what a "reasonable woman," not a "reasonable person," would find offensive. This holding has raised additional questions: Whose perspective should prevail? What is meant by a "reasonable woman?" By a "reasonable man?" By a "reasonable person?" If a reasonable woman standard is utilized can a male ever be confident of his conduct? Although the courts are toiling over the details of hostile environment cases, the Supreme Court remains steadfast in its view that federal law prohibits that type of sexual discrimination. In the 1993 case of Harris v. Forklift Systems, Inc., the Supreme Court extended its ruling in Meritor to include conduct that does not actually cause psychological injury. In this case, the Court reaffirmed its holding that Title VII is violated when a workplace is permeated with unwelcome discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. The Court added that "Title VII comes into play before the harassing conduct leads to a nervous breakdown. . . . Certainly Title VII bars conduct that would seriously affect a reasonable person's psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it to be psychologically injurious." Thus, the Court apparently employed a reasonable person standard. Acknowledging that this test is not and cannot be mathematically precise, the Court emphasized that whether a work environment is hostile or abusive can be determined


only by looking at all the circumstances. The Court provided some guidance by noting some factors that could be part of the "circumstances" of the case: 路 Frequency of the discriminatory conduct; 路 Severity of that conduct; 路 Whether it is physically threatening or humiliating or a mere offensive utterance; 路 Whether it unreasonably interferes with an employee's work performance. The Court additionally stated that although psychological harm is relevant to determining whether a victim found the work environment abusive, it like any other relevant factor -- is not required. This decision makes it easier for sexual harassment victims to win law suits using a hostile work environment as grounds for the action. Consequently, attorneys should advise their clients to take stringent steps to limit their legal liability. Above all, they should explain that companies should make certain their employees understand that all sexual matters belong outside the workplace. Hostile Environment Sexual Harassment As stated above, the phrase "hostile work environment" is found in Article 2 of the Vishaka Guidelines. This phrase is also used in the subsequent decision of Apparel Export v. AK Chopras ("Apparel Export"), where the Supreme Court relied on the statement in the relevant enquiry report that the perpetrator's conduct created an "intimidating and hostile working environment." The Court cited this as one of the reasons for reversing the finding of the High Court that there had been no sexual harassment. However, the phrase "hostile work environment" is not defined in either decision of the Supreme Court. For this readers may refer to the hostile environment cases decided in other common law countries. 13 In Meritor Savings Bank v. Vinson9 ("Meritor"), the US Supreme Court undertook a detailed analysis of what constitutes "hostile environment" sexual harassment. In this case, the Court quoted with approval the Federal Equal Employment Opportunity Commission Guidelines on Sexual Harassment. The Guidelines stated that sex-related misconduct which "has the purpose or effect of unreasonably interfering with an individual's work 13 (1999)1 SCC 759; 477 US 57(1986)


performance or creating an intimidating, hostile, or offensive working environment." whether or not it was directly linked to an economic quid pro quo, constituted sexual harassment. The Court stated that employees have "the right to work in an environment free from discriminatory intimidation, ridicule and insult" and that "a requirement that a man or a woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as the harshest of racial epithets." The Court of Appeal for Ontario, Canada in Bannister v. General Motors of Canada Limited1速 ('Bannister") has taken the view that sexual harassment at the workplace is a wrong not simply because it may lead to adverse job-related consequences but "is a demeaning practice, one than constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment at the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being." The Court further held that in work environments where abuse and sexual innuendo flowed freely in all directions "it is not a question of the strength or mettle of female employees, or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented." Simpson v. Consumer Association if Canada12 ("Simpson"), which ruled that it is not only

14

those in the, workplace who are the direct victims of sexual harassment who may have a complaint about the conduct of a harassing employee. This means that the recipient of unwelcome sex-related conduct at the workplace need not bear the burden of bringing a complaint alone. Rather, the complaint may be brought by a fellow employee or group of them, on the grounds that acts directed towards one woman create a hostile work environment for other women at the workplace. The judgment of the US Supreme Court in the case of Faragher v. Boca Raton ("Faragher") is instructive in elaborating on the types of conduct that constitute hostile environment sexual harassment. In this case, the complaint was that the supervisors 14

www.law.harvard.edu

510 US 17(1993)


of the complainant spoke of women "in offensive terms," that one of the supervisors had said "that he would never promote a woman to the rank of lieutenant," and that another had said to the complainant "[d]ate me or clean the toilets for a year." The supervisors also subjected the complainants and her fellow women employees to "uninvited and offensive touching." Further illustrations of the type of conduct that has been found to constitute sexual harassment are found in the decision of the Court of Appeal for Ontario, Canada in Bannister. In this case, conduct that was found to be harassing included the form in one woman made a commit about her weight and her superior (against whom the complaint was mad) said "why don't you take your clothes off and we'll be the judge of that." Thereafter when she reported a small box fire, she heard over the intercorrfc, words "whose box is on fire/' and when she complained to the supervisor about the sexual innuendo in this remark, he laughed at her. On another occasion the supervisor told a story in her presence of watching sexual interplay between a couple at a hotel and made sexual gestures. The supervisor asked another woman on repeated occasions to sit on his knee and "give him a kiss," he would give her a bear hug and make growling noises which the woman reported she did not consider sexual but made her feel "uncomfortable and intimidated," he described pornographic movies using sexual gestures to portray the scenes, he told a woman who asked him for a pencil that he would give it to her "for a kiss," he commented to co-workers on his ability to see one of the female worker's bra through her wet shirt, he stood close to her so that there was physical contact or would position his face within two or three inches of hers, and he told another woman that he loved her and that his wife was sick and did not understand him. In the U.S. Supreme Court decision of Harris it was stated that there cannot be a mathematically precise test as to whether an environment is 'hostile' or 'abusive', and that this can be determined only by looking at all the circumstances. The relevant circumstances may include the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, and whether it unreasonably interfered with an employee's work performance. A "request" for sexual favours is included as a type of behavior that constitutes sexual harassment in Article 2 of the Vishaka Guidelines. This means that even if sexual favours are not demanded aggressively or in a threatening manner, they may fall within the prohibited conduct. This would cover, for instance, invitations to a hotel room when on a


business tour or to meet outside of the office, requests to talk or to be alone, or repeated requests for a date.15

15 Section 354 of the Indian Penal Code, I860 provides:


Chapter Five: Constitutional Guarantees: Right to work : The fundamental Principles of the State policy provided for in the Constitution relating to workers are to be found in those Articles: Article 14, which require the State to emancipate peasants and workers from all from exploitation; Article 15, which holds the State responsible to ensure the right to work, that is the guaranteed employment at a reasonable wage having regard to the quantity and quality of work, and reasonable rest, recreation and leisure; Article 20(1). Which recognizes work as a right and requires that, “everyone shall be paid for work on the basis of the principle from each according to his abilities, to each according to his work?" In addition, the fundamental rights guaranteed in Chapter in, especially relevant

to

workers’ rights, include: Article 34, which prohibits all forms of forced labor and makes it a punishable offence and Article38. Which guarantee the right to freedom of association and to form trade unions?

16

The Rights which is guaranteed by our Constitution: In our constitution it is mentioned in article 28 (2) that women shall have equal rights with men in all spheres of the state & of public life. The same article in clause-4 states that nothing in this article shell prevent the State from making special provision in favour of women & children or for the advancement of any backward section of citizens. By amending the constitution through XIV amendment it is provided that except three hundred seats in 16

"354. Whoever assaults or uses criminal force to any woman, intending to outrage her modesty, shall be punished with imprisonment." Section 509 of the Indian Penal Code, 1860 provides:

"Whoever, intending to insult the modesty of any woman, utters any void, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished." For further details on criminal law, please see Chapter 4.


the parliament rest 45 will be preserved only for the women who will be selected as per the ratio of the political parties representing in the parliament. In article-27 of the Constitution provide that all citizens are equal before law & are entitled to equal protection of law. Despite the Constitution mandate that women cannot be discriminated in respect of any employment or office of the state. By amending the constitution through xiv amendment it is provided that except three hundred seats in the Parliament rest 45 will be preserved only for the women who will be selected as per the ratio of the political parties representing in the Parliament. In respect of criminal offences a woman will get some preferences than a man such as a death penalty will not be applied against a woman if she is pregnant under section-382 of the CR PC & also a woman even after committing a non-believable offence may be released in bail under section-497 of the same code. There are some special laws in our country which was enacted to protect women from repression such as “Women and Child Repression Prevention Act, 2000 (2003), The Dowry prohibition Act, 1980; the Child marriage Restraint Act, 1929; the Acid Harassment Prevention Act, 2002 etc. Woman’s rights under International and Constitutional Developments: The UNCEDAW

Committee

in

its

review

of

Bangladesh's

progress

on

implementation of the convention in 2004 had recommended that the Government a time limit for withdrawal of reservations of Articles 2 and 16.(c), and take measures to incorporate into domestic law all unreserved provisions. In particular, : had recommended the enactment of legislation to grant equal citizenship rights to and men, and on remedies for domestic violence. It also called for ensuring participation of women in the political process through direct elections17.

17 .The Constitution of Peoples Republic of Bangladesh; Art. 9,27,28.1,28.2,28.4,65. www.independent-bangladesh.com Ahamuduzzaman, International Human Rights Law, page 88


Minister of women and Children's Affairs, who led the official delegation to the committee hearings, committed to the Government to review the reservations, to id the citizenship laws and to enact a law on domestic violence before the next reporting period. The Minister did not agree with recommendation for direct is to be held for seats reserved for women in the National Parliament since was no constitutional bar on women directly contesting for the general seats Bill on Domestic Violence. Law commission had prepared a draft Bill on domestic violence after eliciting from the Judges of the Nari o Shisu Nirjatan Court, District Judges; District its, Family Courts, women's organizations, NGOs, academics and others. Bill, if enacted, would have gone some way to meet the recommendations of the JAW Committee, which had urged States' parties to

adopt) rehensive approach to address violence against women and girls," and is

legislation on domestic violence within a clear time frame." The Bill a definition of domestic violence as follows: Violence perpetrated by a man upon a woman and vice versa in course of leading a domestic life. Domestic violence is not confined to married couples only, but extends to cover other couples who are jointly living together. It may also cover men and women other husbands and wives, such as parents, brother, sisters or co-tents, domestic help, etc. Domestic violence, according to the Bill, included physical, sexual and psychological abuse. It fell short of expressly identifying economic deprivation as violence, although this is a major means for controlling a woman's mobility and autonomy. Controversially, section 3(b) (ii) extended sexual abuse to imply “forcibly marrying a religiously prohibited woman (sic) or establishing illicit sexual connection with such a woman voluntarily or otherwise..." The Bill proposed authorizing the Court to issue an interim protection order Pending any investigation relating to an offence of domestic violence (sec.4), for a Period not exceeding twelve months (sec.6) and direct to the offender to pay Compensation (sec.10), in case of personal injury, psychological damage or damage to property, financial loss or trauma. ASK and BNWLA, while supporting the need in principle for such legislation, held separate discussions with judges, lawyers, women's rights defenders and other stakeholders on the Bill, and submitted detailed comments and recommendations to the Ministry of law. ASK; in addition, recommended that the Government adopt the


following strategies to curtail domestic violence:Enact laws and regulations prohibiting discrimination against women. Amend laws to criminalize marital rape. Maintain national statistics on the nature and degree of domestic violence. Launch awareness campaigns about the laws and its utility. Establish a clear domestic violence policy within the justice system (police, local bodies, and courts). Formulate clear guidelines for police intervention in domestic violence cases.

Violation the women right

Develop standardized protocols for medical personnel and provide training on the management of domestic violence survivors. Expand the number of shelter homes for survivors and their dependents and improve the quality of services. Provide comprehensive services for medical and health care, police protection and security, legal help, counseling and shelter. Support NCOs work in deterring domestic violence. Provide 4 legal representations for survivors of domestic violence. Expand women's access to micro-credit, skills training, and employment. Women's Political participation:

18

In the Eighth Parliament, only six women were elected to general seats; in a 51 member Cabinet only three women were appointed as ministers. The Prime Minister Khaleeda Zia

18 ASK, The Daily Star, 19August, 2006.


and the Leader of the Opposition Shekh Hasinahad each contested from multiple constituencies. Following the enactment of the National Parliament (Women's reserved Seats) Amended Act, 2004, 36 women were nominated to represent their parties in 45 seats. The women members were not particularly defeats. Several of them were nominated to serve on the Standing Committees but there is no record of whether they raised women's concerns either in the committees or in the Parliament.

Table No - 1: Women's Participation in the Cabinet from 1972- 2006.

Ruling party

Period

Cabinet

Women

members

Ministers

Percentage

AL

1972-75

50

2

1

BBBBNP

1976-82

101

6

5.94

Jathyio Party

1982-90

133

4

3

BNP

1991-96

39

3

7.69

AL

1996-01

38

4

10.52

party 2001-06

51

3

5.88

4 alliance

Women members elected to the Union Perished were reported to have been more actively involved in shalish (mediation) conducted at the UP offices than in previous years, and also took on other responsibilities. Violence against Women:

19

Newspaper statistics on violence are most likely gross under estimates, since reporting is sporadic and it is not followed. Women in Bangladesh are exposed to extreme forms of insecurity as a result of different forms of violence within the family, the community and in public spaces. This is why socio-cultural and economic dynamics of gender relations s a cause of such violation need urgent examination. The recent trend in incidents of suicide by 19 Jugantor, 28April, 2006


women, instigations to commit suicide, or murders passed off as suicides needs to be studied seriously. How does women's subordination and lack of mobility catalyze cases of suicide or domestic violence? While legislation, support structures and economic opportunities for women may offer a framework for autonomy, strong social messages need to be disseminated through the popular media and culture, so that violence is recognized as a crime and not interpreted as an inevitable condition of gender relations.

Chapter Six: The Harassment which are committed against women: There are many women's organizations that document various forms of harassment against women. Odhikar, however, includes such incidents where they are part of the organization’s human rights agenda - political repression and harassment by law enforcement agents. The organization is, however, also conducting a project involving the violation of women and children's rights, and thus, some incidences of acid-throwing and rape have been reported. According to investigations carried out by the organization under this project, one thing has clearly been learned: despite laws protecting women's rights and punishing offenders of crimes against women, there is a continuous lack of implementation and disinterest shown by responsible government agencies. A. Dowry related harassment against women in Bangladesh: Dowry-related harassment is a common feature in Bangladesh, affecting the lives of many women. Other then specific acts of harassment such as killings, torture, the throwing of acid & the like; dowry demands affect the lives of women socially & culturally accepted forms of the discrimination against them. They can affect the life of girls form the very starts. Preference for boys after begins with the parental realization that the burden of finding dowries falls on them as soon as the child is born. Thus the devaluation of a child takes place in culturally subtle forms the very beginning this continues throughout their early years & up to the time of marriage.20 The emending, giving and accepting of a dowry is an offence under the laws of Bangladesh. The practice, however, still prevails in many sections of society. One of the reasons for this 20 http://www.yobserver.com/front-page/10012113.html www.independent-bangladesh.com.


persistence in demanding a dowry is rising unemployment among young males, especially in rural Bangladesh.

Often the bride's parents cannot contribute the whole amount of the dowry at once. However, they must pay a portion of it at the wedding ceremony. Later the demand for the rest of the dowry becomes intense, and the object of the brutality which follows a delayed payment is the wife. The dowry issue is probably the most common source of domestic harassment in rural Bangladesh where not only the husband but his parents and relatives take part in reminding the wife that the remaining payment is still due. The incidents of murder or attempted murder are regular items in the country's daily newspapers.

Dowry Related Family

Case Study On Oct. 9, 2000, 18-year-old Rahima Khatun of Jehnaigati in Sherpur was beaten by her husband and forced to leave her husband's home while her six-month-old daughter Ontora was murdered. Rahima told Odhikar investigators that she had been married for four years to Abdul Wahab, who drives a rickshaw van and is a habitual gambler. He had sold what little property he had to pay his gambling debts. After he began stealing from home to pay off his debts, his father threw him out of the house. He then took his wife to live on the homestead of his sister and brother-in-law.


Under such circumstances, Rahima was constantly pressured by her husband to bring the rest of her dowry from her father's house. This took the form of beatings and other kinds of physical and mental harassment. Soon this harassment became a common part of her daily life, and even her sister-in-law and her husband joined in the verbal and sometimes physical abuse. At one point, her father, a poor farmer, managed to scrape together 10,000 takas (US5) for his son-in-law, which then led to even more demands. On Oct. 8, after a severe beating from her husband, Rahima took Ontora and went to her father's house. The next morning her brother gave her some rice and 50 takas (US.92) and sent her back home. On seeing her, her husband became violent and began to beat her again. He pushed her out of the house and told her to go back to her father's home. He forcibly kept Ontora with him. Rahima had no choice but to return to her father's house. The next day Wahab's younger brother came to her bearing the news that Ontora had died. Fearing that she may be harmed, the upazilla chairman and local elders restrained her from going to see her daughter. Her sister's husband went instead and found that the child had been buried. On Oct. 12, Rahima's father filed a case against Wahab in the court of the cognizance magistrate in Sherpur. Immediately on hearing the news Wahab went to the local chairman, who was politically influential, and both of them, along with the same upazilla chairman who prevented Rahima from seeing her child, began to pressure Rahima's family to retract the case. On Oct. 20, a shalish was arranged, and Wahab was forced to give Rahima 1,400 takas (US9) as "compensation." However, her family was told to withdraw the case. Rahima told Odhikar investigators that her family did not have the economic support to continue the case and decided to terminate the case. She also does not want to return to her husband's home, for she is afraid that she will meet the same fate as her six-month-old daughter. On January 2004 the Daily Star newspaper in Bangladesh observed that A woman on fire has made dowry deaths the most vicious of social crimes. It is an evil prevalent in the society & despite efforts by some activities and women’s rights organization to eliminate this menace; the numbers have continued to climb. In villages marriages was once considered a much sanctified bond united in the worst or best of times, in sickness or in


health through the vicissitudes of life. But dowry related deaths have shattered that bond of peaceful and happy relationship. A recent survey by the Bangladesh human Rights Organization & Bangladesh women Lawyer Association revealed that in 2001, there were 12,500 cases of women repression, in 2002 the figure rose to 18,455 and in the year ending in 2003 the figure climbed to 22,450. 21 The grisly act of a brute and greedy husband in Chapai Nawabganj as reported in the newspapers in December 27 last is a story better is not heard. Having failed to realize a dowry claim of Tk. 20,000/= Shamsher killed her wife Marina just on the 22 nd day of their marriage. The most grisly side of the story is that Shamsher hired three other monsters for Tk. 300/= and Marina was slaughtered by Shamsher after she was forced to be gang raped by four by four human monsters including himself. (Text as received). Har ass me nt Wo me n for Do wr y Dowry–

related harassment is in part caused by a misplaced get rich quick

mentally whereby dowries are seen as the project instrument for upward material mobility. Middle and upper class as well as better–educated grooms demand huge dowries. Often, even after the payment of a dowry, the husband or their families may demand more money or goods. The following story from the same media report as cited above is just one out of so many such tales of harassment: “Beauty Akhtar of Dhamrai Upazila was married to Muntaj Ahmed of Arpara village in Manikganj about two and a half years ago. Beauty’s father met his son–in–law’s dowry demand paying three lakh taka. But Muntaj’s greed was insatiable. He started torturing her 21 http://www.4woman.gov/harassment/types/ht.cfm


for more money & at one stage locked her in a room for three days without food. It so happened that on November 12 last, the entire family including husband, father–in–law, mother–in–law & other in–laws beat her with iron rod in a row. Table 2: Total dowry related harassment Victims

of

Total dowry related

Month(s) January February March April May June July August September October November December

Killed 20 12 14 13 19 31 29 25 26 15 15 8

Suicide 0 0 3 2 1 2 2 2 5 1 1 0

Torture 6 20 5 5 9 7 15 11 14 9 12 10

Acid 4 1 2 0 1 0 2 1 1 1 0 0

Divorce 0 0 0 0 0 0 0 0 0 0 0 0

harassment 30 33 24 20 30 40 48 39 46 26 28 18

Total

227

19

123

13

0

382

B.Trafficking: Human trafficking is when a person is lured, recruited, or taken by force into another country, where they are forced to work under brutal and inhuman conditions. Human trafficking happens all over the world. Traffickers target mostly women and children in countries where living conditions are very poor. Victims can be lured with false promises of good jobs and better lives in another country. Sometimes, victims are kidnapped. Once in the new country, victims are forced to work under terrible conditions. Trafficking victims may work on farms, in sweatshops, as maids or nannies in private homes, or as sex workers.22

22 . www.independent-bangladesh.com.


Trafficking Grals

Women and children from poor countries are especially vulnerable. They are often lured into other countries where they are forced into sex work. These women may be sold to pimps, locked up in rooms or brothels for weeks or months, drugged, terrorized, and raped over and over again. Being in a foreign country with no friends or family to turn to and having little or no money makes it hard, if not impossible, to escape. Today, many of the women sold into sex work come from Eastern Europe, where lack of jobs and poverty have forced women to look to other countries for jobs. Women are not just forced into sex work; they also might be forced into other types of "women's work," such as domestic work. These women may be held hostage in homes where they have to cook, clean, or take care of children for many hours a day, receiving little or no pay for their work. Many times, they are not allowed to have contact with the outside world.


The women trafficking rate in Bangladesh has increased dramatically. Pictorial documents are being published both at home & abroad. In a presentation of the Manila– based ISIS International, it had been reported that 150 women are being trafficked from the country each month. We are in no position to deny this report by the IS. Continuous trafficking of women from the country had overridden all other incidents in the country. The average of women and children rescued during smuggling in just eleven months stands at 20.73. Of the women rescued 5 are from Chuadanga, 3 from Chapai–Nawabganj, 5 from Jessore, 11 from Dinajpur, 30 from Satkhira, 9 from Manikganj, 5 from Bagerhat, 3 from Comilla, 5 from Jhenaidah, 3 from Tangail, 3 from Chittagong, 6 from Dhaka & 5 from Bangaon, India. The mean number is 845. The traffickers are using all the routes available on the border. But the rate is slightly higher in the south–west border. One human rights organization from Jessore has been investing the trafficking status for quite a long time. In 1993, this organization conducted a fact–finding programme in collaboration with another human rights organization in India. The organization is still carrying out their programmes in this regard. According to their information, the traffickers are freely using the south–west border (Satkhira, Jessore, Chuadanga, Meherpur, Jhenaidah, Kushtia). About 60 percent of the trafficking is done through these borders; Jessore and Satkhira lead these districts. Fact finding showed that, after 1975, a group of brokers became involve in women trafficking. Little by little their reign expanded. In 1977-78, many women were smuggled to Pakistan through the hands of these brokers. Although these women were promised good job in the Middle East, most of them ended in the brothels of Pakistan, & the rest with numerous landlords throughout the country. After martial law in 1982, trafficking stopped for some time. Then it restarted and increased from 1985 and created much anxiety. Later, when pictorial articles were published in the newspapers of Bangladesh, India & Pakistan many institutions in these countries commenced their activities to stop this menace. But, in a very short time, the traffickers built a very strong centre in India. This centre is used as the “transit” for the traffickers. After selection, some women were sold to Indian brothels there. Although Pakistan is the main destination of the Middle East traffickers, due to many obstacles they are forced to sell some of the women in the India brothels. These brothels


were previously dominated by Nepalese women, but Bangladeshi women are slowly taken over. One Nepalese source said that there are approximately 40,000 Nepalese women forced into prostitution in India. Most of these are victims of trafficking. Bangladeshi women, therefore, are now sold more in India than are being trafficked into Pakistan. This is because of three main reasons. Firstly, the border security of these countries has been strengthened in recent years. Therefore, no one wants to meet the fate of the Rann of Kuch of Banashkanta District, Gujrat (Indian security forces have found fifty corpse of Bangladeshi men and women near a well Rann of Kuch, Banashkanta, Gujrat. These people were trying to enter Pakistan when they were chased by the border security, lost their way, and died of thirst23.

In the UNICEF report “Progress of Nations”, 1995, it has been reported that around 40,000 Bangladesh children are engaged in prostitution in Pakistan. Another 10,000-12,000 are forced into prostitution in Bombay and West Bengal, according to human rights sources, of which 4,500 are in West Bengal alone. The correct statistics of women being kept by Pakistani landlords are not known. Investigation revealed that around 70 percent of the women trafficked, both successfully and unsuccessfully; voluntarily join the traffickers in hope of a high paid job. About 90 percent could not tell their actual destination. They are only told that they are being taken to Pakistan for well–paid jobs. Seven percent come across the border with their husbands, 5 percent are kidnapped. Statistic shows that in 1995 135 children & 93 women were rescued while they were being smuggled out of the country while 76 traffickers were caught. This statistical data is based on the newspapers, human rights organizations, police & BDP reports from January 1, 1995 to November 1995. These numbers could be broken down further into months- 19 women and 3 children rescued in February, 29 women & 38 children in March, 7 women & 5 children in April, 8women & 3 children in May, 3 women & 7 children in June, 6 women & 5 children in July, 4 women & 4 children in August, 5 women & 49 children in September, 6 women & 10 children in October, and 15 women & 7 children in November. These figures 23 http://www.4woman.gov/harassment/types/ht.cfm


are just a fraction of the actual scenery in reality; the numbers are much greater due to the many incidents at the grassroots level which are not published in the newspapers.

Corrupt officials, complicit state authorities, xenophobia, and a profound lack of political will coalesced to guarantee impunity for traffickers and to exacerbate the suffering of their victims worldwide. Traffickers moved their human victims around the globe, held them in debt bondage, seized their passports, and threatened them or their families with harm if they resisted. Ever-tightening border controls and the lack of legal opportunities to migrate often forced women to turn to traffickers, increasing their vulnerability to abuse. Sold as chattel and forced to work for little or no pay, trafficked persons feared local law enforcement authorities, perceiving, in many cases correctly, that an appeal to police would end in prosecution and deportation, rather than protection. Trafficking victims from ethnic minority communities faced an even more daunting situation, including at its worst xenophobic harassment, racism, and, in the case of trafficked hill tribe women and girls in Thailand, statelessness. States continued to fail to combat trafficking. The token prosecutions of traffickers merely proved the rule. 24

24

State of Human Rights 1995 of Bangladesh, Bangladesh Manbadhika Samonnoy Parishad; Page 72-73.


Trafficking Grals

One positive development brightened the picture slightly in 2001. The opening for signature of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, marked a small step forward in the battle against trafficking. By late November, one hundred countries had signed the protocol, committing their governments to punish traffickers and protect the human rights of trafficking victims, but only three had ratified it. Lackluster anti-trafficking efforts in Nigeria, Bosnia and Herzegovina, Colombia, Japan, and Israel illustrated the disheartening trends, however. Even countries that ratified the protocol, such as Nigeria, failed to adhere to those commitments. Women's organizations protested that Nigeria fell far short in the effective investigation and prosecution of individuals engaged in trafficking of women and children. The 2001 U.S. State Department report on trafficking in persons cited widespread corruption among law enforcement officials as a major stumbling block to combating trafficking in Nigeria. Trafficking victims


alleged that some Nigerian immigration officials colluded with traffickers, assisting them in forging documents and bringing persons across borders, and accused others of actively engaging in trafficking. Nigerian citizens, mostly women and children, facing stark conditions and oppressive poverty, chose to migrate but found themselves preyed upon by traffickers who transported them to Lagos and other cities and forced them into domestic servitude or prostitution. Traffickers seized all wages to pay off the trafficking victims' debt. In addition to trafficking within Nigeria, traffickers also sent Nigerian citizens to other West African countries to work on farm plantations or as domestic workers. Other signatories to the protocol showed little progress in combating trafficking in women. Bosnia and Herzegovina failed signally to confront endemic corruption and state complicity in trafficking. Traffickers and employers held women trafficked from Ukraine, Moldova, and Romania in debt bondage in brothels throughout Bosnia and Herzegovina. Trafficked women reported to the United Nations (U.N.) that their employers sometimes forced them to provide free sexual services to local police officers. In a handful of cases, Bosnian police actively participated in trafficking, either as part owners or employees of the clubs, or by procuring false documents for traffickers. Trafficking victims, terrified of retaliation by traffickers, feared reporting the abuse to law enforcement authorities. Eager to fan that fear, employers routinely claimed that they counted police officers among their friends. The U.N. also stood accused of complicity in trafficking when allegations emerged that International Police Task Force (IPTF) officers--United Nations police charged with monitoring local Bosnian police--had gone to brothels as clients and, in a small number of cases, purchased women for personal use. In December 2000, the U.N. repatriated an American IPTF officer after learning that he had purchased a Moldovan woman from a Sarajevo brothel for 6,000 Deutschmarks (U.S. $2,777). In June 2001, Jacques Klein, special representative of the U.N. secretary-general for the United Nations mission in Bosnia and Herzegovina, defended the anti-trafficking measures implemented by the mission, declaring that the U.N. mission had a zero-tolerance policy for sexual or other serious misconduct. The justice system within Bosnia and Herzegovina rarely delivered convictions of traffickers in the cases brought to court. U.N. officials and NGO leaders blamed inadequate laws and a lack of political will on the part of the Bosnian government for the failure to gain convictions of traffickers. Most often, trafficking victims, not traffickers, faced prosecution,


detention, and fines for illegal entry into the state, document fraud, and failure to procure a work permit--all administrative violations are that directly arose from their status as trafficking victims. In March 1999, the U.N. stepped in to facilitate voluntary repatriation of trafficking victims through an International Organization for Migration (IOM) program, but some trafficked women fell through the cracks of the screening process, serving thirty-day sentences in Bosnian prisons before facing deportation. By October 2001, the IOM had completed over three hundred voluntary repatriations of victims ranging in age from thirteen to thirty-six years old. Government authorities in Colombia, another signatory to the protocol, estimated that between two and ten women were trafficked from Colombia each day, the vast majority of them to Europe. In July 2001, new anti-trafficking legislation went into effect; however, the legislation only treated trafficking victims as those who had been trafficked outside of Colombia for forced prostitution, failing to protect persons trafficked into other forms of forced labor. In addition, NGOs lamented that the law established prison sentences of just four to six years for traffickers. In mid-2001, the Colombian Congress began debating an anti-trafficking bill that would enhance the definition of trafficking, the range of victims protected, and the severity of the penalties for the crime. Experts warned that passage of the bill could take up to a year and a half. Colombia also failed to implement a witness protection system to ensure the safety of victims who agreed to cooperate in the prosecution of traffickers. In Japan, women trafficked into the sex industry accounted for a significant proportion of the estimated 260,000 undocumented migrants. Yet, the government, a nonsignatory to the protocol, took no concrete steps to prevent trafficking and continued to treat trafficked women as illegal immigrants, detaining them and failing to provide them human rights protections. The minority of trafficked women who managed to escape from their employers with the help of NGOs or their embassies found themselves placed in detention and then deported as illegal aliens, unable to seek redress or sue for compensation.


Thailand continued to be a major country of origin for women trafficked into the Japan's socalled snack bars. Discrimination against minority groups in Thailand heightened some women's vulnerability to trafficking. Hilltribe women, denied citizenship and rights by the Thai government, suffered from extremely limited educational and employment opportunities. Since births among the hilltribe communities were often not registered, and because hilltribe people did not possess official Thai citizenship, hilltribe people were left effectively stateless. The Thai government frequently refused to allow hilltribe women trafficked to Japan to return to Thailand, denying that they qualified as Thai citizens. Israel, meanwhile, failed to provide even minimal human rights protections for persons trafficked into its territory for domestic servitude, agricultural labor, forced prostitution, and construction work despite the passage of an anti-trafficking law in 2000. Trafficking victims feared cooperating with law enforcement officials and had no incentive to do so, absent witness protection, shelter, and relief from deportation, or legal assistance. State complicity and corruption also played a role in trafficking into Israel. In March 2001, the Hotline for Migrant Workers, an Israeli NGO working with trafficking victims, reported to the United Nations Human Rights Commission that six trafficking cases involved policemen: in one case a policeman stood accused of managing a brothel; in four cases police officers tipped brothel owners off on upcoming raids; and in another case a policeman faced charges of selling a trafficked woman to another brothel owner after arresting her. Israeli authorities continued to treat trafficked women as criminals rather than victims, and failed to prosecute those responsible for trafficking. The U.S. State Department report on trafficking in persons ranked Israel in the lowest tier of countries for failing to combat trafficking. 25

C. Acid-Throwing:

25 12 www.hrweb.org/legal/undocs.html - 15


After thro wing Acid

In 2000, Odhikar recorded 186 incidents of acid-throwing compared to 178 incidents in 1999 and 101 in 1998. According to Odhikar's documentation, 33 of the victims in 2000 were between the ages of 6 and 15. In a majority of cases, the primary reasons for the perpetration of this crime were jealousy, the refusal of advances and revenge after an argument.


After throwing Acid

D. Rape: Rape is now probably one of the most common forms of harassment against women in Bangladesh. Unfortunately, despite the fact that in most cases the violator is


known to the victim, nothing is done to bring the former to justice. Usually money and muscle are the reasons why the crime goes unpunished. In most of the investigations conducted by Odhikar, the victim's family was too poor and ignorant of the law to seek legal recourse. In one case, the victim's father, a rickshaw puller, told Odhikar that he "did not know the lawyer's name but knew what he looked like." In another incident, the lawyer was demanding payments for every appearance and asking the court for more time. The mother of the victim in this case had no more money to give the lawyer and is now at the mercy of the Bangladesh Mahila Perished.

Raped Grail

Case Study On Nov. 18, 2000, people who opened their daily papers were aghast on being faced with the news of the rape of Nasima Khatun and her stepdaughter Ozufa Shundari, who was subsequently murdered. On Nov. 25, Odhikar went to the village of Berbinni in the district of Jhenaidha to carry out an investigation of the incident. When the investigators went to Berbinni, at Horinakundu, they could not find the mother, Nasima Khatun, at home. Her father-in-law Abdur Bishwas informed Odhikar that she was undergoing treatment in the Jhenidaha Sadar Hospital and that his son Monju Biswas, Nasima's husband, was in the Jhenidaha jail as an accused in a murder case. Mojnu Bishwas's first wife Hajera Khatun committed suicide by taking poison, leaving two children, Ozufa Shundari and Fuli. After the death of his first wife, Majnu Bishwas married Nasima Khatun, daughter of Amir Uddin of the same village. Three or four neighbours who wish to remain anonymous told Odhikar that on the night of Nov. 17 at about 10:00 o'clock Nasima took Ozufa to the toilet outside of their house. At that time, a group of people gagged them and forcefully took them to the betel leaf boroj (plantation) belonging to Shamshul Islam that is adjacent to the village. They raped both of them and murdered Ozufa.


The neighbour women said they learned of the incident from Nasima herself. They also said Nasima could recognize some of the rapists, including Moinuddin, who is the son of Jainuddin, Jainuddin's son-in-law Shamsuddin, Jahar Ali's son Kamal and Gahar Bishwas' son Mangal of the same village. They further said that on the morning of Nov. 18 at about 6 o'clock the day labourers who come from other villages to the boroj to work found Nasima on the ground senseless and found Ozufa naked and dead. When they informed the owner of the boroj and others, people gathered and sent Nasima to the Jhenidaha Sadar Hospital. Shamshul Islam informed police about the incident, who arrived at about 12 p.m. and sent Ozufa's body to Jhenidaha Sadar Hospital for an autopsy at about 2 p.m. On Nov. 19 at about 8 p.m., Ozufa was buried. After the incident, a case was filed under the penal code. However, no case was filed under the Prevention of the Suppression of Women and Children Act of 2000, which would have been a more appropriate law under which to file the case.

Rape by Law Enforcement Officers: The protectors of society have become the violators as members of law enforcement and security agencies - the police, army personnel, etc. - continue to rape women. Very few police officers who rape women in custody are brought to justice as the State does nothing to punish them. One of the reasons for this neglect to prosecute law enforcement officers is perhaps because it is the police who conduct the investigations regarding crimes allegedly committed by their own colleagues. Furthermore, government investigation and inquiry commissions are created that take months to produce a single report, which is then not disclosed to the public. Thirteen women were raped by members of law enforcement agencies in 2000, the youngest being a girl of 6 who was raped by a police constable in Packagers on June 17. Women and girls are often raped by soldiers or forced into prostitution. For a long time, the international community has failed to address the problem of sexual harassment during armed conflict. However, sexual assaults, which often involve sexual mutilation, sexual humiliation, and forced pregnancy, are quite common. Such crimes are motivated in part by the long-held view that women are the "spoils" of war to which soldiers are entitled.


Trafficking in women is a form of sexual slavery in which women are transported across national borders and marketed for prostitution. These so-called "comfort women" are another example of institutionalized sexual harassment against women during wartime. Sexual harassment is sometimes viewed as a way to destroy male and community pride or humiliate men who cannot "protect" their women. It is also used to silence women who are politically active, or simply inflict terror upon the population at large. Mass rapes may also form part of a genocidal strategy, designed to impose conditions that lead to the destruction of an entire group of people. For example, during the 1990s, the media reported that "rape and other sexual atrocities were a deliberate and systematic part of the Bosnian Serb campaign for victory in the war" in the former Yugoslavia.

26

The figures of the last column show the percentage of respondents who did not tick the corresponding issues. It may be assumed that according to these respondents the situations did not constitute sexual harassment or that they were not sure of the concepts. Table 3: Issues coming under the definition of Sexual Harassment:

Issues

Docs

not Docs not constitute

constitute

sexual

sexual

according

harassment

national org. staff

according

to

Int'l org staff Unwelcome sexual advances, irrespective of

12%

16%

Epithets, jokes, written or oral references to 27%

18%

whether such advances involved physical touch

sexual conduct

26

. http://www.yobserver.com/front-page/10012113.html http://www.un.org/womenwatch/daw/public/cover.htm

harassment to


Gossip about an individual's sexual activity, 30%

16%

Displaying suggestive objects, pictures, 39% deficienciessexually or prowess

29%

Passing pornographic material in print or cartoons,on calendars

61%

Passing written electronic form offensive messages of a sexual 33%

55%

nature Unwelcome

leering,

ridiculing,

whistling, 21%

42%

brushing against the body, suggestive or embarrassing comments. Unwelcome

comments/references

about 42%

45%

dress or appearance Demands for sexual favors

27%

Unwelcome invitation to dinner/lunch from a 39%

42%

66%

person in authority Expressions that suggest superiority of one 36% gender

over

the

other

including

68%

jokes

demeaning one gender Behavior that creates an intimidating, hostile or 42%

61%

offensive work environment Any conduct of sexual nature which is an 24%

66%

implicit or explicit a condition of employment

Any conduct of sexual nature that may affect 27% the decision for one's promotion, salary or any other job condition

45%


While the situations described in the Box above reflected the various manifestations of sexual harassment. In addition to the likely ignorance of the respondents about what constituted sexual harassment, the findings also suggest that a different organizational culture might prevail which shaped the respondents' perceptions. Thus they might interpret such behavior as demonstrating friendship and mutual trust and as not exhibiting personal attention in 'sexist' ways, though the possibility of such an egalitarian situation is very slim. Data reveals that thirty-nine and sixty six percent of respondents in the two organizations did not consider an unwelcome offer of going out to dinner/lunch from a person in authority, to constitute sexual harassment (quid pro quo type). This can be interpreted either as their relative ignorance of the many manifestations of sexual harassment; or it can also indicate a relatively new work-place culture where men and women work with such ease, comfort and respect that going out with co-workers (including seniors) do not necessarily translate into "sexuallyMotivated “act as a part of a harassment scheme on the side of the senior.

E. Police harassment: With increasing pressure against keeping women accused in police station overnight & the stiffening of the law against it the errant members of the law enforcement agencies began turning to other method for their exploitation of women. They either directly is joined criminal gangs that, among other things assault or kidnap women, or they used accessibility & the terror of police methods to trawl their prey. Late one night 11 policemen including ASP Allah Ditta & head constable Mohammad Akram raided Aisha’s house in village Engam in Pasroor, Among other things they took two young daughters of the house with them, But as they left the villagers promptly rallied overtook them & in a darning reversal of forced the party back & locked up the raiders gang in a room. It took a reinforcement of policemen to come & rescue their colleagues. Two Okara policemen raided a railway quarter &raped a woman. When the people gathered in protest the policeman took the women & the leading protester to the police


station & locked up them. The woman who was subject to further harassment soon died. Then they register a case against the protester under Hudood Ordinance.

Harassment Women by the police

Rather than simply killing off whole populations, government forces may carry out programs of torture. Torture can be either physical or psychological, and aims at the "humiliation or annihilation of the dignity of the person." Physical torture might include mutilation, beatings, and electric shocks to lips, gums, and genitals. In psychological torture, detainees are sometimes deprived of food and water for long periods, kept standing upright for hours, deprived of sleep, or tormented by high-level noise. 27 Torture is used in some cases as a way to carry out interrogations and extract confessions or information. Today, it is increasingly used as a means of suppressing political and ideological dissent, or for punishing political opponents who do not share the ideology of the ruling group. In addition to torture, tens of thousands of people detained in 27 State of Human Rights in 1995: Human Rights Commission of Pakistan; Page 139.


connection with conflicts "disappear" each year, and are usually killed and buried in secret. Government forces "take people into custody, hold them in secret, and then refuse to acknowledge responsibility for their whereabouts or fate." This abduction of persons is typically intended to secure information and spread terror. In most cases, interrogations involve threats and torture, and those who are arrested are subsequently killed. Corpses are buried in unmarked graves or left at dumpsites in an attempt to conceal acts of torture and summary execution of those in custody. Because people disappear without any trace, families do not know whether their loved ones are alive or dead.

Policy ratifies sexual harassment in Jahangirnagar University: The jahangirnagar University authorities are yet to take any initiatives to ratify a policy against sexual harassment despot the high Court made it mandatory for all educational and work institution on May 14. Much before the high court order, the university authorities had decided to formulate a complete policy against sexual harassment in the face of students' demonstrations in protest at incidents of molestation by a student leader in 1998.Several committees was formed to formulate a policy but none of them went further than submitting a draft. The last committee, formed in 2006 and headed by .Professor ATM Atiqur Rahman of history department, submitted a draft policy in consultation with students, teachers and employees. Rights activist 'Sultana Kamal, also a former adviser to the interim government, was on the ten-member committee who helped to check the relevance of the rules and regulations of that draft with the existing laws. The draft was sent to the syndicate in February 2007, but was not officially approved. It was agreed only' in principle as the members felt that it required more consideration. The draft submitted by the committee resembled the set of guidelines by, the High Court and it only needs a syndicate approval to be implemented. Economics department teacher Professor Anu Muhammad, also a committee member, blamed some teachers for not ratifying the policy. These teachers think if the policy is approved, one can bring false allegations' against a teacher using it as a tool of personal enmity. There is a clause in the, policy that says if the allegation is proved false the complainant will be liable to punishment,' he said. Swadhin Sen, assistant professor of archaeology department, opined for formulating a separate special policy for the university as it had a


special character (the only residential university). He accused the male dominating characteristics of the policymakers behind the procrastination. Bangladesh Chhatra Union president of the university unit SM Shuvo told' New Age, We have waited long. This time the policy should be formulated without delay.' .Pro-vice-chancellor Muhammad Muniruzzaman told New Age, 'We are yet to get the High Court order. We will 1 decide on the matter after getting the copy.' In 1998, the university students went on' severe demonstrations against.'the then university League general secretary Jasimuddin Manik after he celebrated 'century of rapes'. Manik and his followers were driven out. Of the campus the campus on August 2, 1999, since then, the -left-leaning political and cultural organizations of the university have been. "Observing 'Killer-rapist resistance day on August. Every year on the campus with a renewed call to formulate the policy.

Chapter Seven: Legal &Judicial Responses to Sexual Harassment Constitutional Law The Constitution of India guarantees to all Indian citizens certain bask and necessary fundamental rights. Fundamental rights include the right to equality and non-discrimination based on gender, the right to work and the right to live with dignity. Certain fundamental rights have been extended to all persons; irrespective of Indian citizenship. 1 such constitutionally guaranteed rights go a long way in ensuring that women in India are protected from the problem of sexual harassment at the workplace ("SHW"). The Indian Supreme Court first recognized SHW as a violation of guaranteed fundamental rights in its landmark judgment in Vishaka v. State of Rajasthan.2 This chapter deals with the law recognizing SHW as a violation of fundamental rights under the Constitution and is divided into three parts:


An account of the Vishakn judgment and its effect; the content of fundamental rights that SHW is a violation of; the remedies available in the sphere of the constitutional law to victims of SHW.28 The Supreme Court on SHW: Vishaka v. Sfafe of Rajasthan The Indian Supreme Court in its landmark decision Vishaka v. State of Rajasthan ("Vishaka") recognized that SHW is a violation of constitutionally guaranteed fundamental rights for the first time. In 1985, X was appointed as a saathin i.e., a female village level worker, under the Women's Development Programmed by the Government of Rajasthan. The project was initiated for the empowerment of women. As part of her work, X was expected to encourage people to send their children to school, to discourage "held marriages, to help widows get their pension and other similar activities. In 1992 was gang-raped by five ‘upper-caste’men in revenge for her campaign against child marriage. The incident exposed . he aids to which a working woman exposed in course of her world. And the urgent need to put into place safeguards that would prevent the occurrence of, SHW,3 leading to the intervention before the Supreme Court in. the Vishaka case. The primary question in (the Vishaka case was whether the' State had responsibility to protect its employees and workers. A writ petition was filed in the Supreme Court with a three fold aim: (i) Firstly,

to

assist

in

finding

suitable

methods

for

the realization of gender

equality, (ii) Secondly, to prevent sexual harassment, and (iii) thirdly, to fill the vacuum in the existing legislation.29 28 Articles 14 and 21 as example of the protection of fundamental rights being extended to all person and not just citizens of Bangladesh; (1997) 6 SCC. 241. 29 Please note that while the Vishaka case involved acts of sexual assault (rape), the term 'sexual harassment at the workplace' includes a whole range of sexually offensive conduct. Please see Chapter I on "definitions" for a


The Vishaka case sought the enforcement of fundamental^' rights of working women tinder Articles 14, 19 and 21. The Court held that each incident of sexual harassment of women at the workplace resulted in the violation of the fundamental rights to gender equality and the right to life and liberty, including right to work dignity. Accordingly, the meaning am content of the fundamental rights guaranteed in the Constitution of India were found to be of sufficient amplitude to encompass all the facets of gender equality, including prevention of sexual harassment or abuse. In the absence of domestic law occupying the field, the Court formulated measures to prevent sexual harassment, relying of the content of international conventions and norms, including the Convention on the Elimination of all forms of Discrimination; Against Women (CEDAW). Constitutional Remedies for the violation of Fundamental Rights: SHW is violation o' fundamental rights guaranteed in; Articles 14,19 and 21 of the Constitution. Accordingly, a woman who has been sexually harassed can access certain constitutional remedies provided for the violation of fundamental rights. Instead of leaving it to the general law of remedies under the civil law, the Constitution of India has provided certain special remedies for the enforcement of the rights created by the Constitution. Article 32 of the Constitution of India guarantees the right to move the Supreme Court through appropriate writ petitions for the enforcement of fundamental rights in Part III. Similarly, Article 226 provides for the right to move the, appropriate High Courts for the enforcement of fundamental rights and other legal rights. Article 32 is deemed to be one of the basic features of the Indian Constitution. 72 Both Articles 32 and 226 cannot be curtailed by any legislation short of an amendment to the Constitution. The right to detailed discussion. (1997) 6 SCC 241, 24,", page3


approach the Supreme Court for the enforcement of fundamental rights under Article 32 is itself a fundamental right.Through the writ jurisdiction available under Articles 32 and 226, courts has the jurisdiction to enforce fundamental rights guaranteed by the Constitution.

30

Advantage of Using Constitutional Remedies In the first place, it is important to note that there are certain broad advantages of using the constitutional remedies in Articles 32 and 226 in a case of SHW. In recent times, there has been an expansion in the jurisdiction of Article 32 and 226 because of a corresponding acceptance of an expansive interpretation of the content of fundamental rights. The Vishaka interpretation is itself an example of this expansive role undertaken by the Court. In addition, the list of fundamental rights within the phrases 'life' and 'personal liberty' of Article 21 now includes the right to privacy*0 and similar rights that are of relevance to a case of sexual harassment. Courts have also evolved positive duties and obligations under each of the Directive Principles in Part IV and, reading them into the fundamental rights, have treated them as 'supplementary and complementary to each other.81 In addition, the courts now employ a liberal use of directions under Article 32 and 226 to enforce fundamental rights to cover the gap until the legislature steps in or the executive discharges its role.82 There has also been an extensive use of public interest litigation, as in the case of Vishaka, which permit persons other than the victim who have sufficient interest in the matter to approach the court. The Court is entitled to evolve new principles of liability and new remedies to make the guaranteed remedies to enforce fundamental right real and effective. The court May also use the article 32 remedy to do complete justice to the person aggrieved.'' In Vifhaka v. State of Rajnathan. The Court articulated the power of the

30Minerva Mills v. Union of India, AIR 1980 SC 1789. In re Kerala Education Bill, AIR 1958 SC 956. Bodhisatlwa Gantam v. Subhra Chakraborhj, (1996) 1 SCC 490. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. (Ghulam v. Union of India, AIR 1967 SC 1335). Mandamus is a command directing a person or organization, requiring him or them to do some particular thing therein specified which pertains to his or their office and is in the nature of a public duty.


Court under Article 32 to make fundamental rights meaningful. The obligation of the Court under article 32 to enforce fundamental rights was seen to extend to the incorporation of progressive international law to provide for lacunae in the domestic law field and to hold that such judge made law would be treated as law declared by the Supreme Court under Article 141 of the Constitution. 31 Limitations of Article 32 and 226: (1) Articles $2 and 226 only apply against the 'State' Fundamental rights are available only against the 'State'. This is laid down in Article 12 of the Constitution. This means that only agencies, bodies, organizations and individuals who fall within the ambit of the word 'State' can commit infringements of fundamental rights. Therefore, remedies under Article 32 and 220 (to the extent that Article 226 deals with fundamental rights) will only be available against the 'State'. Once a body is understood as 'Stale', it has an obligation to comply with all fundamental rights and directive principles of state policy under the Constitution. Persons and organizations that cannot be interpreted as 'State' cannot be held liable for

32

infringement of fundamental rights. It is a different issue that they continue to be liable for violations of ordinary legal rights and under other laws besides fundamental rights in the Constitution. From a constitutional law perspective, a writ under Article 226 on grounds other than fundamental rights violations becomes particularly relevant here. The discussion of 'State' under Article 12 becomes significant for two reasons - first, it becomes important to outline the limitations of the fundamental rights discourse and the remedies available for the violation of such rights; secondly, it is important to point to the growing expansive understanding of 'State' in constitutional law, which makes more individuals and organizations liable for fundamental rights violations.

31 (AIR 1969 SC 1306). (AIR1967SC1) AIR(1965)SC497;AIR(1963)SC784;(1997)1SSC 301&151;

32 AIR(1980)SC 1789;AIR(1958)SC956;


The Supreme Court holds that sexual harassment at the workplace is a violation of fundamental rights: Vishakc v. Stale c, Rujasthan (1997): "Each incident of sexual harassment results in violation of fundamental rights of Gender Equality and the Right to Life and Liberty. It is a clear violation of the rights under Articles 14, 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(l)(g) to practice any profession or to carry out any occupation, trade or business...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." Apparel Export Promotion Council v. A.K. Chopra (1999): "There is no gainsaying that each incident of sexual harassment at the place of work, results in violation of the fundamental right to gender equality and the right to life and liberty - the two most precious rights guaranteed by the Constitution."

Civil Statutes on sexual harassment: Damages are not available under Title VII). A series of cases and guidelines ultimately led to legally recognized equality of The United States' experience of using Title VII of the Civil .Rights Act ("Title VII") to combat sexual harassment is particularly illustrative. The enactment of Title VII demonstrated that tort remedies were inadequate in dealing with employer discrimination. After several attempts by women to use Title VII to address sexual harassment, the U.S. Supreme Court in Meritor Savings Bank v. Vinson4 ("Meritor") formally recognized sexual Harassment

negatively

impacting

employment

as

sex

discrimination. Title VII thus became a powerful tool for women in obtaining equitable relief, including reinstatement, back pay and appropriate injunctive relief. (Compensatory and punitive is


employment opportunity for women by proscribing "quid pro quo" and "hostile work environments" harassment. The Supreme Court in Meritor, referring to the Restatement (Second) of Agenc-s.19 (1957), 1 old that to be actionable, sexual! Harassment must be pervasive a ad severe. Courts have since held that harassment by court is actionable, and that employers are liable for harassment; if such harassment creates a hostile work environment. 33 The Need for a Civil Statute on SHW in Bangladesh: It has been demonstrated in all of these countries that court directives (e.g. Visliako) coupled with employer commitment are simply not enough to combat a problem as serious as SHW. In India, private initiatives are currently drafting a civil statute on SHW. If such a statute is enacted, potential benefits may ensue. The following list of potential benefits is meant to be illustrative, not exhaustive: The enactment of courts specifically to deal with SHW cases, similar to Mahila courts; The opportunity to have rules of evidence in favour of women, e.g. presumptions; Speedier justice for women, so they do not have to go through consuming avenues,

traditional

time-

delaying justice for years; and Specifically articulated remedies

available for victims. The need for a law against sexual harassment arises because of the urgent requirement for an affirmative legislative stand against SHW. This law will enhance the constitutional prohibition against sexual harassment at the workplace as laid down in Vishaka. Only the law can make enforceable a declaration that sexual harassment is a violation of rights, and create an atmosphere of obedience. This can be accompanied by an effective enforcement machinery and adequate deterrent effect.

33 Carol H. Lefcourt, Women and the LAW. ยง3.05(4)(d). 47U.S.57(1986).


Recourse Through Tort Law The existing tort regime in India does not provide sufficient recourse to victims of sexual harassment L, the workplace. In comparison to other areas, Indian tort jurisprudence is underdeveloped and tort law is underutilized and characterized by lengthy delays, overburdened courts, a multiplicity of appeals, prohibitive court fees, lack of sensitizations, lack of judicial awareness on SHW issues and limited damages. These deficiencies arc particularly glaring in the context of sexual harassment in the workplace. It will therefore be beneficial to examine in detail existing tort regimes in other common Jaw countries when evaluating options for victims of sexual harassment. Under English law, most claims are brought under the SDA and PHA.65 English law does allow for tort liability but the SDA and PHA overshadow tort laws in this area. The existing tort regime in the United States, however, provides several bases for sexual harassment claims and complements the Title VII regime. 66 Tort claims, although providing plaintiffs scope for collecting monetary damages, present challenges as well. For example, cross-examination creates particular scrutiny of the plaintiff's personal life. This is distinguishable from filing a suit under the civil statute Title VII, where the first step is arbitration and related procedures, and the filing of a lawsuit is a last resort. Here, the plaintiff is less likely to face cross-examination, since arbitration as a first step severely limits the usual civil trial procedure and remedies. In India, tort damages can be awarded for mental pain, distress, indignity, loss of liberty and death. 67 However, emotional distress per se without physical harm is not actionable. According to the SAHLLISE Court, "An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In cases of assault, battery and false imprisonment the damages are at large and represent a solatium, for the mean pain, distress, indignity, loss of liberty and death. In the U.S. each slate adjudicates tort claims independently other states. Examples of progressive tort law application sexual harassment cases, as in specific U.S. states, May ser guide and reference for India. Indian


sexual harassment la benefit from similarly progressive applications of Indian to sexual harassment claims, as such applications would be the scope of relief available to sexual harassment victims. Trespass to Persons: The tort of trespass is based on the premise that "any direct invasion of a protected interest from a positive act is actionable subject to justification.

If the invasion

unintentional there will still be no liability if the conduct c defendant was reasonable, or even if it was unreasonable the invasion was an unforeseeable consequence. There arc important rules: (1) that it is for the defendant to plead, prove justification and not for the plaintiff to show that the defendant's conduct was unreasonable; and (2) that damage is not an essential element and need not be proved by the plaintiff. Assault and Battery: Assault is defined as an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act. Battery is defined as the intentional and direct application of any physical force to the person of another Assault and battery are two distinct torts, although the two an often conflated. Assault and battery often serve as the bases ft tort action in sexual harassment cases in the U.S. and a) included in the same cause of action.34 A Criminal Law Perspective: This chapter will demonstrate how the provisions of the Penal Code can aid in the event of sexual harassment in the work place ("SHW"). In the PC, there is no chapter specifically dealing with "crimes against women" and there is no act listed or described as "sexual harassment." To invoke the operation of penal provisions, the sole requirement is that the act complained of, e.g. sexual harassment, 1 must have all the ingredients of the commission or omission of the offence. 34 Ratanlal and Dhirajlal, the law of Torts, 22 nd edition (1997),p.200


In the well known case of Vishaka v. State of Rajasthan ("Vishaka") the Supreme Court of India ("SC") expressed its serious concern over sexual harassment. The Court stated that where "conduct amounts to a specific offence under IPC or any other law," the employer is under a legal obligation "to initiate appropriate action in accordance with law by making a complaint with the appropriate authority." The SC observed that "sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: Physical contact and advances; a demand or request for sexual favours; Sexually-colored remarks; Showing pornography; any

other

unwelcome physical,

verbal or non-verbal conduct of sexual nature. 35 A section 354 and 509 of the Penal Code covers such behavior. It may be noted that the definition of sexual harassment given by the SC is an inclusive one. it does not preclude the possibility of other serious manifestations of sexual harassment being covered under offences that are already defined in the penal code. COMPLAINT: Report to the in instigating agency (police) that the offence has been committed and request/demand that appropriate action be taken in the matter. A difference between civil and criminal proceedings is that in the former only the aggrieved has standing to complain of the wrong, in the latter; any one can make a complaint that the offence has been committed. In the event of SHW, an employer is under a legal obligation to file a complaint to the police. INVESTIGATIONT:

35 Sections 509,354,376,503,339&642 in CR.P.C


The investigation is aimed at collecting evidence which is relevant to determining whether the accused is guilty or not. A SHW investigation may involve recording the statements of coworkers, preparing a site plan of the office, searching the office or the residence of the accused and seizure of relevant items (usually documents), taking photographs (in the case of, for example, obscene writing on the walls). For the purposes of investigation, the police can arrest the accused. The failure of the police to take immediate and effective steps in investigating the matter allows the accused in SHW situations to tamper with the evidence and influence or pressurize witnesses. Therefore, such failure must immediately be brought to the notice of the magistrate having jurisdiction over the area and request should be made that adequate steps be taken. The adequate steps may range from the collection of particular evidence, arrest of the accused, and/or transfer of the case to another police station, agency or investigating officer who may be expected to deal with the matter more sensitively and expeditiously.

COGNIZANCE OF THE OFFENCE BY THE COURTAs soon as the court applies its mind to the case presented before il for any purpose, it takes cognizance of the matter. The purpose may be to seek police remand of the accused for investigation when the accused is sent to judicial custody (in the case of cognizable offences), or for the purpose of seeking permission to investigate the offence in the case of non-cognizable offences. Labour and service law : Can a dispute be raised relating to sexual harassment at the work place? The ID Act lists the following as "unfair labour practices. * To interfere with, restrain from, or coerce workmen in the exercise of their right to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection; * To discharge or dismiss workmen by way of victimization or not in good

faith or for

patently false reasons, on, patently trumped up charges or in utter disregard of the principles of natural justice in the conduct of a domestic enquiry. * To transfer a workman mala fide from one place to another, under the guise of


management policy; * To show favoritism or partiality to one set of workmen regardless of merit; * To indulge in an act of force or violence. Therefore, applying these generic principles to the context of SHW, the followings actions could constitute unfair labour practice: * If the management tries to restrain or coerce you or interfere in your efforts to assist or agitate a case of SHW; * If the management discharges or dismisses you for complaining against SHW perpetrated against you or some other person; * If the management transfers you for complaining against SHW perpetrated against you or some other person from one place to another, under the guise of management policy; * If the management favours or shelters a perpetrator of SHW; • If the management fails to lake appropriate preventive and protective action against SHW. How should the complaint of sexual harassment be made? A complain, of sexual harassment can be made orally or in writing, but it is advisable that it is given in writing. Make sure the following facts a; e present in your complaint: (i) The date of the complaint; (ii) A clear statement of the name(s) and designation(s) of the person causing the harassment; (ii) Details of the incident(s), with date(s), time(s), place(s) of occurrence, the context, etc., in chronological order. If you do not remember the exact dates, at least mention the month and the year, which post you were holding at the time, and which post the perpetrator(s) was holding, etc; (iii) If the harassment has been going on for several months, begin from its genesis and explain events leading up to the current period. By its very nature, incidents of sexual harassment start off with small things like unwelcome comments/statements(invitation unsolicited

attention

(complementing

the

for coffee/dinner),

dress/ appearance), etc., which

may, by themselves, appear too trivial to complain about, but which will slowly build


up into more direct advances and unwelcome incidents. It is important that everything is narrated chronologically like a story; (iv) If there have been any witnesses to the incident, mention the names of these witnesses. If you have confided in any person immediately after the incident, mention the name(s) of this co-worker. However, before mentioning the names of co-workers, check with them to make sure you can mention their names. Some may not have the courage to take a stand, and may even give in to pressure from the perpetrator, especially if he is a superior officer, (v) If the perpetrator is your immediate superior, and has direct control over you in the workplace, mention this fact; (vi) If you have repulsed the advances, mention this; (vii) If the fact that you have not given in to the illegal demands of the perpetrator has

resulted

in

a

facilities, promotions,

hostile

work environment (such as denial of opportunities,

writing; of adverse confident reports, issuance of threats,

etc.), mention this along with all factual details. For instance, if a project 01 assignment has been denied to you, mention the name c f t; e project, the date/ period, what role the perpetrator denied you, etc; (viii) If the perpetrator has made any verbal comments about you, e.g., about your physical appearance, include the comments as accurately as possible, to the extent possible; (ix) Make sure you incorporate as many details as possible in the complaint because if you fail to say something in the first instance and subsequently add the information, it will be considered to be an afterthought and hence false. Formal Complaint Procedure If (his informal proceeding is deemed inappropriate by the complainant, or if the matter is not resolved, the complainant may initiate the formal grievance procedure. The complainant is required to make .1 complaints to the SHC within a reasonable time after the informal resolution has failed or within ten months of the incident cited as sexual harassment.'1 the complaint must be in writing and must be signed by the


complainant. No particular form is required; however, the complaint ordinarily contains the following: “The full name and address of the complainant; the full name and address of the respondent; a specification of the charges; A brief statement of the relevant and material facts.� The complainant should submit any evidence in support of the complaint that she has, including affidavits of witnesses, if any, with the complaint- Where (lie complaint is vague or too general, the SHC may require the complainant to specify the acts complained of as sexual harassment in writing within a reasonable time from the receipt of notice. Note that a withdrawal of the complaint made or filed at any stage of the proceedings shall not preclude the SMC from proceeding with the investigation of the complaint. Furthermore, where the SHC receives a complaint anonymously, the Committee need not proceed further with the complaint, unless he or she considers that the complaint alleges matters that ought, in the interest of good administration, to be investigated further. The task before the SHC, once it receives a complaint of sexual harassment, is to conduct a preliminary enquiry and to reach a conclusion about the veracity of the complaint made. Once the veracity of the complaint is verified and the SHC reaches the conclusion that the alleged harasser has in fact sexually harassed the complainant. It shall forward its enquiry report to the relevant disciplinary authority, which is turn of shall take appropriate disciplinary action against harasses after giving him an opportunity to defend himself. Guidelines under sexual harassment in workplace by the HC: The High Court has made mandatory the guidelines it worked.-out against sexual harassment of women and girls for all educational institutions and workplaces with the force a law under the mandate and within the meaning of Article 111 of the constitution. The High Court bench of Justice, Syed Mahmud Hossain and Justice Quamrul Islam Siddiqui issued the


guidelines on May 14 in its verdict in a public interest litigation writ petition filed by the Bangladesh national women lawyers association. The certified copy of the verdict; however, could be, obtained by the association on June 15 and the association disseminated the copy of verdict at a news briefing on Saturday. "The directives are aimed at filling in the legislative vacuum in the nature of law declared by the High Court under the mandate and within the meaning of Article 111 of the constitution,' the verdict said. The article stipulates, the law declared by either division of the Supreme Court. Shall bind on all court. Subordinate to it are inclined to issue certain directives in the form guidelines to be followed arid observed at all work places and educational institutions, till adequate and effective legislation is made. In this field,' the court said in the verdict. Judiciary: -and - legal experts have observed the guidelines have the force of a law as an act of the parliament. As the guidelines has been issued in the form of law declared by the High.Court under Article 111 of the constitution stipulating, punishment for sexual 'harassment and detailing the' procedure for dealing with the complaints, it must have the force of a law form chief justice told New Age on Saturday. Supreme 'Court lawyers ZI Khan Panna, also the Bangladesh Bar Council's human right committee chairman, Shahdeen Malik; also' a rights activist, and Adilur Rahman Khan, also rights

organization Odhikafs general secretary, made-similar observations. The

verdict also stipulated' punishment for sexual harassment. If the accused is found .guilty of sexual harassment; the authority concerned shall treat it as misconduct and take proper action according to the disciplinary rales of all workplaces and the educational institutions, in both public and private sectors within 30 days and/or shall refer the matter to .the appropriate court of tribunal if the act constitutes an offence under any penal The authority concerned may suspend the accused person (other than students) and in case of students, may prevent them from attending their classes on the receipt of the recommendation of the complaint committee. 'Where such acts do not constitute misconduct under the disciplinary rules, an appropriate and effective mechanism must be evolved at the workplaces and educational institutions for record and redress of the complaint,' the verdict said.


According to the guidelines, the identity of the complainant or accused will not be disclosed until the allegation is proved and security of the complainant. Must be ensured by the authorities concerned. A' complaint can 'be lodged by a victim or through her relatives, friends, or lawyers and it can .be sent by mail arid it can also be filed with a female member of the complaint committee separately. The court ordered formation of complaint committees. at all workplaces and educational institutions in order to receive complaint and to conduct investigation and make recommendations. The complaint committee, headed by a woman, will have minimum five members, mostly women. It should have a least two members from outside the organization, preferably from organizations working on grader issues and sexual abuse. The complaint committees need to submit. Annual reports to the government on the compliance of the guidelines, the verdict said. On procedure of the complaint committee, the guidelines stipulate that a complaint needs to be' lodged within 30 working days of the occurrence. In case of minor .harassment, the complaint committee will dispose of the complaint, with the consent of the parties’ .involved and report to the authority concerned, the guidelines said. In all other cases, the complaint committee must investigate the matter. According to the guidelines, the complaint committee will have the power to send registered notice by mail to the parties and the witnesses, conduct hearing, gather evidence and examine relevant documents. Apart from oral evidence, emphasis should be given on circumstantial evidence. The deposition recorded in camera. If the complainant wants to withdraw the complaint 'or stop the investigation, the reason behind needs to be investigated and mentioned in the report. The complaint committee must submit the investigation report with recommendations within 30 working days to the authority concerned of the organization, the guidelines stipulate, adding that the time limit can be extended up to 60 days, if required. The relevant office of the; organization will be bound to extend any cooperation requested by the committee in conducting the work of the complaint committee effectively, the guidelines said. According to the definition stipulated in the 11- clause guidelines, sexual harassment includes, ''unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances, attempts or efforts 'to establish physical relation having sexual implication ;by abuse, of administrative, ' authoritative or professional powers, sexually


coloured verbal . Representation, .demand or request .for sexual favours; showing pornography, sexually coloured 'remark or gesture, indecent gesture, teasing through; abusive language, stalking, 'joking having; sexual implication, letters, telephone 'calls,, cell phone :calls, SMS, pottering] notice, ;cartoon, writer on. Bench, '.chair, table, notice-boards, ! Walls of office, factory, classroom, washroom. having 'sexual implication,' taking still of video photographs for the purpose of blackmailing and character assassination,, ' preventing participation in ; sports; 'cultural, organizational and academic activities on the ground of sex and/or for the purpose'-of sexual harassment, making love proposal and exerting . Pressure or posing, threats in.; case of refusal to love proposal and attempt to establish sexual relation by intimidation, deception or falls assurance.36

36 Paper, new Age 21 June 2009,page1&6


Chapter Eight Concluding Remarks: Recommendations: In consideration of to above prolonged diseased above I would like to recommend the following moves as a minimum: 1. Government should move earnestly towards ensuring appropriate early representation of women in all elective bodies. 2. Strong steps need to be taken to enhance employment & promotion opportunities for women. In addition to fixing progressive quotas for different levels of employment in both public & private sectors necessary steps should be taken to make this possible. These steps will include……… a. women presence on every appeal mechanism; b. training facilities for career development & for decision-making responsibility; c. appointment or promotion to policy making position on matching qualifications; d. creation of an environment conducive to their working including in provision for affirmative, transportation, health-care; and e. development of time formed strategies for affirmative action & for creation of social support mechanisms. 3. The marriage 7 families laws should be revised to accord women a legal status that is equal & equitable in relation to men & is in keeping with their rightful place in the family & society. Among other things………


A. the age of consent of a girl should be raised to 18, her freedom of choice should be guaranteed, & all violation be

cognizable & more promptly & deterrent

punishable than the present law. B. the right of divorce & dissolution of marriage should be equitable for both sides & subject to the same condition. C. the principle of best interest of the child in the matter of his/her custody following an end to marriage should be enforced in its intended spirit, & emouonal consideration should weigh at least as heavily as material; & D. there should as soon as possible be as many family courts presided over by women judges as by men. 4. The marriage & divorce laws of non-Muslim should be amended in accordance with the prevailing danseuses or reprehensive women view in those communities. 5. The gender discrimination in all the other laws, such as the Hudood & Qisas & Diyet Ordinances, should be removed. 6. Strong administrative & penal measures need to be taken to curb police harassment against women, which occurs both in custody & outside of custody. An effective monitoring mechanism & exemplary punishments in case of lapses will be necessary in the initial stage to change habits & detoxicate the system. The women police force needs to be helpful to citizens in difficulty. 7. Incidents of kidnapping & rape should be pursuer with far greater seriousness than heretofore & the police station made more directly responsible for such crimes in their areas. Registration of complaint should face no hindrance. 8. There should be separate jails for women. All staff from superintendent down should be female. Bail & parole for women generally & for pregnant or breast feeding ones in particular should be easy. Within the jail there should be arrangements for education & imparting of skills. The wait for & during the trial should be short ended as far as possible. 9. The law should be prompt, effective & unsparing in cases of public humiliation of women. Steps should be taken to break the clout that warders, chador’s & such others exercise in this respect.


10. Custom like marriage to Quram & karo kari should by law & community pleasure also built against them.37 11. Darul Aman should be develops as what its title claims. It should not function

as

another prison. It should act not only as a sanctuary against cruelty but also as a place to heal the motional inflicted. It should have good facility for family & marriage counseling. 12. Domestic harassment may be hard to curb until women become less unequal & more confident of themselves. 13. CEDAW should be ratified without reservations. 14. Investing in the human development of rural women through education, health and nutrition programmers and provision of safe drinking water; 15.

Inclusion in national development and poverty alleviation strategies a gender-

perspective and focus on creating jobs and opportunities for women in rural areas; 16. Increased provision of micro credit to rural women and development of new micro credit institutions. 17. Strengthening international cooperation to offset the negative impact of globalization, especially those that affect rural women. 18. Women should be targeted as direct beneficiaries of development projects & programmers. They should be treated as equal partner in mainstream activities & in the development process.

19. Women’s contribution to the development process must be properly evaluated & recognized that they are & have been all along part of & key contributors. 20. Government’s policy support must include improving the access of women to land & to financial & social services such as education, health, nutrition, sanitation & water supply. For this women must be represented in decision making at all levels at an increasing numbers.38 37 State of Human Rights in 1995: Human Rights Commission of Pakistan; Page 147-148.

38

www.independent-bangladesh.com


Conclusion:

The increase in crimes against women and acts of harassment against them raises serious questions regarding the effectiveness, transparency and accountability of those responsible for maintaining law and order in the country. It shows to what extent the law and order situation has deteriorated, especially in the case of the inhuman crime of rape perpetrated on children. It is also disturbing to note that even acts of harassment against women, perpetrated by people who are well-known and thus identifiable, slip out of the grasp of the supposedly "long arm of the law." The newly introduced Women and Children Repression Act of 2000 is a small improvement on the ordinance of the same name of 1995, which has now been repealed. The new law provides for stringent punishment for offenders and considers their offences non-boilable. What good though will the introduction of new laws do when the whole infrastructure is weak with pockets of corruption and existing laws not implemented? No, we do not need new laws, but we must be more realistic and identify genuine harassment against women which have no remedies or punishment yet. These can be included in the laws already in force. For example, there is no law presently against domestic harassment; the crime is still seen more as a social norm than a legal matter. Provisions against this crime could be included in the penal code. In order to improve the lives of women, the various state mechanisms need to tackle and amend the realities of indifferent police officers, corruption, the criminalization of politics and the poor participation of women in policymaking and then rewrite the laws that already exist in Bangladesh.

Bibliography:

State of Human Rights 1995 of Bangladesh, Bangladesh Manbadhika Samonnoy Parishad;


Policy against sexual harassment in Jawaharlal Nehru University; Law relating to sexual harassment at work, Indian book; Development of women and gender studies, BNWLA http://www.hrw.org/women/?PHPSESSID=f2b15928728c8d37f35d853e0099c6a www.independent-bangladesh.com. http://www.4woman.gov/harassment/types/ht.cfm www.hrweb.org/legal/undocs.html - 15 http://www.un.org/womenwatch/daw/public/cover.htm Antonio Cassese, Human Rights in a Changing World. (Philadelphia: Temple University Press, 1990), 90. http://www.hrw.org/reports/2001/chechnya/RSCH0301.PDF

http://www.hrw.org/wr2k2/women.html 18. The Constitution of Peoples Republic of Bangladesh ; Art. 9,27,28.1,28.2,28.4,65. Ahamuduzzaman, International Human Rights Law, page 88 Abbreviation AIDS…………

Acquired Immune Deficiency Syndrome.

ASP…………..

Assistant Superintendent of Police.

BNWLA……… Bangladesh Women Lawyers Association. Cr.P.C………… Code of Criminal Procedure. CJ……………..

Chief Justice .

EEOC…………

Equal Employment Opportunity Commission.

HIV…………..

Human Immune Deficiency Virus.

IPC…………..

Jnternational Paralympics Committee.

IPTF………….

International Police Task Force.

ICFTU………..

International Confederation of Free Trade Union.

IOM………….

International Organization for Migration.


JNU…………..

Jawaharlal Nehru University.

JU……………

Jahangirnagar University

NGO…………

Non Government Organization.

PHA………….

Pulmonary Hypertension Association.

SMC…………

Senior Magistrate Court.

SHW…………

Sexual Harassment in Work.

SHC………….

Sexual Harassment in Children.

UNICEF……….

United Nations International Children’s Emergence Fund.

UN……………...

United Nation.

UK…………….

United Kingdom.

US……………

United State.

UNCEDAW…… Women.

Convention on the Elimination of all forms of Discrimination Against

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Harassment against women occurred from various sources. There was criminal harassment that usually took the form of kidnapping, rape, public...

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