Why Didn't They Get It? - The Sexual Harassment Bill (2010)

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Last week I delivered an experiential seminar on Equality to a group of Senior International development policy makers. Present in the room were mostly white, middle aged men, a handful of white women, one woman from a minority group, one male student from a minority group and a young electrician.

At the end of the seminar, the young woman from the minority group and the male student raved about the session. From the corner of my eye I spotted the electrician wrapping up the wires, gesturing me in his direction. I went. He instantly shared his genuine enthusiasm about the session- how he had been listening in and had learnt so much about inequality and how he wished his girlfriend (a counsellor) could have been there. He then paused. “But can I ask you something?” “Ofcourse”, I replied. Pointing to the rest of participants he asked- “Why didn’t they get it”?

Over the past two years, between the GOI and NCW, we have seen several drafts/versions of Sexual Harassment Bill. In that period, I have on many occasions attempted to submit my comments. I have never received a response. And as of November 4^th, it seems we have a Bill.

Sexual harassment as a rights issue found its place on the map of India in 1997- in the Vishaka case- five years after I filed a PIL asking the Court to frame binding guidelines for the benefit of women at all workplaces. (I have written an extensive blog on this earlier for those who would like some history. Just scroll to the blog titled “The Aspirations of Law”.) Bhanwari, a rural based change agent in Rajasthan was the source of it all- her suffering, courage and extraordinary perseverance are what made the “Vishaka” victory so meaningful. Our memories are short- the Bhanwaris amongst are what make remembering worthwhile.

That being said, some key recurring themes have been the focus of my comments. Some of these are summarised below:

1. The Goal of Equality.

Ensuring the reality of those most disadvantaged by inequality (in this case women, by sexual harassment) should inform any response. If you ask people what does sexual harassment look like- most have a stereotyped picture which involves explicit physical contact. But most have never thought about it. Because most have never stepped into the shoes of those disadvantaged by the nuances of sexual harassment. When we do, the distinction between ‘flirting’ and ‘hurting’ become amply clear. Women know that experience best because women are most affected by it. And indeed some men too- though the percentages are far less and even then, male experiences of sexual harassment are often attributed to the actions of other men. That apart, the experience of sexual harassment is subjective. Just like a colored person’s experience of racism or a minority person’s experience of ethnic or religious exclusion. The goal of Equality is to walk in another person’s shoes and acknowledge that experience. As has been aptly phrased by Madame Justice L'Heurex Dubé (Justice, Supreme Court of Canada, rtd.) "It is important to walk a mile in another person's shoes. As it is possible to grow up in the same family, neighbourhood, school..... And yet, have totally different experiences depending on whether you are a man or a woman. The way to resolve differences therefore is not to suppress those who are different, but to notice them and not try to see our reflection in them.” After its opening Preamble, the current Bill abandons the shoes of Equality at the door and simply walks out.

2. Prevention.

Unless we enrol people into the idea that a healthy workplace is of benefit to us all, there are no stakes in challenging inappropriate behaviour at work. It is not in our nature to do so especially when we think we are least affected by it. The current bill fails to prioritise prevention- the most innovative aspect of Vishaka. The judgement placed a positive onus on employers and other ‘responsible persons’ to prevent sexual harassment at work. As a result, we have witnessed the advent of workplace policies complemented by orientation and training on the sexual harassment. In some countries “sexual harassment and non-discrimination training” are mandated by state law and go so far as to stipulate a minimum level of training. A preventive approach builds workplace champions in recognising and responding to sexual harassment. Enrolling individuals in this way is inevitably more inclusive and far-reaching in building awareness, capacities and a culture of change in professional/appropriate workplace conduct. Prevention enables people. It goes to the root of what underlies inappropriate behaviour- attitudes.

In my years of engaging with workplaces on this issue, most have been willing to comply with prevention. It is an opportunity for workplaces to assume responsibility to create safe and healthy work environments for all persons (women as well as men). In other words, prioritising prevention has helped build stakes amongst workers/employees and others to take responsibility for eliminating sexual harassment at work. Such education has equipped even junior level functionaries with language, an ability to identify direct and indirect forms of sexual harassment and the skills to determine appropriate levels of intervention. Such intervention can sometimes involve a simple request for an individual to cease behaviour which is unacceptable. The 2010 Bill fails to capitalise on this reality and so harness an increasing level of willingness to comply.

For these reasons, I had suggested the Bill be framed as the “Prevention of Sexual Harassment” Bill. Its current title - “The Protection of Women Against Sexual Harassment”, like most legislation affecting women, continues to stereotype women as ‘victims’ of abuse rather than as agents of change- a pitch that is incompatible with the equality principle. It smacks of paternalism which undermines men and women as equal partners in creating a culture of change- a more holistic and inclusive response to unacceptable workplace behaviour. Eclipsing the importance of prevention denies the possibility to orient and enroll employers and others towards attitudinal change (the very obstacle which has historically denied women access to equal and fair decision-making at workplaces).

3. Expertise.

Vishaka created a unique model of redress for workplace sexual harassment. There is nothing like it in any other country. It includes:

Ø A committee with 50% women and a chairperson as a woman

Ø The presence of a 3^rd party ngo with expertise in sexual harassment.

However, the Committee was intended as an option of last resort when effective preventive mechanisms have been either ineffective or unsuccessful.

50 percent women and a woman chairperson have been retained under the proposed Bill. Third party ngo presence well versed with the issue of sexual harassment have unfortunately been diluted to include ngos committed to “the cause of women”. That’s like inviting a software engineer to do an electrical engineer’s job. Presence on a committee is no guarantee of sound understanding or skill to address sexual harassment. Experience has shown that the presence of skilled persons generates a three-fold benefit:

i. someone who is knowledgeable and experienced about the issue of sexual harassment;

ii. someone who can orient other committee members around that knowledge base and expertise (i.e. institutionalizing expertise) and

iii. someone skilled in achieving a more fair and equal outcome

As part of a preventive approach, civil society organisations (CSOs) have been called upon over the years to orient and train workplaces on the issue. Not only has this inspired collaborative processes, developed skills and created a knowledge base on the issue, but it has required workplaces and CSOs to understand and adapt to the language and culture of one another. Through the current Bill, that potentially rich resource of understanding and skill accumulated over the years has simply been watered down and marginalised.

4. Cost effective.

Prioritising prevention over redress stakes individuals as well as institutions/workplaces to effectively and efficiently respond to the majority of cases involving sexually inappropriate behaviour in the very first instance. In 2004, the US recorded a 16.4 billion dollar net benefit as a result of the 1994 Violence Against Women Act which adopted a preventive approach. In other words, in terms of time, money, harm, reputation and health, prevention simply costs less.

5. “False and Malicious Complaints”.

Through the many versions of this Bill, there has been a resounding demand to delete this provision as it simply nullifies the law’s purpose. Not only does it project mistrust as a starting point but it serves to discourage women who already know and understand the pitfalls of ‘proving’ sexual harassment. In no other area of law, does such a penalty clause exist with reference to a specific group of people. The proposed clause is not only discriminatory but rooted in historical stereotypes about women complainants. Of note is the emphasis of the section on a “false complaint”- no parallel penalty is given for misleading submissions of an accused. Irrespective such provisions are hostile and divisive in addressing any human rights concern.

6. Much more can be said about some glaring inconsistencies in the Bill which betray inadequate research, knowledge and regard for the subject. These include- inconsistency in projecting sexual harassment as an established form of discrimination; a poorly drafted section on so-called “prevention” which fails to address the impact sexual harassment can have on workers as a whole when it pollutes the workplace environment (internet pornography for instance); an alienating shift from the user-friendly approach developed through Vishaka to a courtroom approach; emphasising harmful and outdated criminal law standards of ‘proof’ rather than "probability" as a measure for determining the outcome of a sexual harassment complaint; failing to address intimidation of witnesses or the complainant which can result from filing of a complaint; and wholly inadequate consequences for non-compliance which betrays any serious attempt to understand or eliminate sexual harassment at work.

We live with archaic notions of law. All sources of law do not end with the word “Act”- take customary law, International law, or judge-made law for example. Vishaka, is law. A rare but wise Supreme Court at the time, understood the snail’s pace with which Parliament would respond to the reality of sexual harassment. So guidelines were created and made binding “in law” Bureaucrats have lived with the insecurity of that knowledge and 13 years hence, yet another Bill is born.

It has always been my concern as a lawyer that laws are accessible, user friendly and doable- for the people, by the people so to speak. Law has to be simple enough so that people can internalise it into their daily choices. If they can’t internalise it, they won’t trust it. That’s common sense. It means most of us would want to work in safe and healthy spaces and would invariably choose to reject inappropriate workplace behaviour. Vishaka built on contemporary equality to give value to such choices and breathe life into everyday-decisions as they impact us. For 13 years the legislature, rather than take proactive steps to strengthen our choices, went to sleep. It emerged, as sleeping beasts often do, hungry and resentful. Behemoths like this are determined to drag us back into a legal jungle of rules, procedures, legalise and ignorance and in the process usurp our common sense, forsake our trust and slay our choices.

In my years of working on this issue, I have found many workplaces, institutes, organisations and individuals willing to entertain a conversation and practice around sexual harassment because Vishaka made it user friendly, inclusive, non-threatening and doable. The practice has been not to create mini-courtrooms at workplaces but rather, enable people to address the issue as a workplace concern that affects each and every one of us- men and woman- through common sense. In my years of working on this issue, I have found many workplaces, institutes, organisations and individuals willing to entertain a conversation and practice around sexual harassment because Vishaka made it user friendly, inclusive, non-threatening and doable. The practice has been not to create mini-courtrooms in workplaces but rather, enable people to address the issue as a workplace concern that affects each and every one of us-men and woman. No doubt there are an equal number of workplaces who simply aren’t interested- where gender concerns don’t seem worth it. Responding to the latter is never resolved through an “Act”. It calls for action- the political will to implement what is already there. Vishaka has been lauded around the globe as an innovative milestone for contemporary human rights.Following the success of Vishaka, Bangladesh created a similar law through a judgment of its own highest court in 2009. In its present form the current Bill not only snubs that ‘difference’ but sadder still, belittles the courage that characterised a Vishaka outcome- from its origins, a rural woman who suffered the absence of a law, to a special Judge and his Court who rose to the challenge and provided her with one.

Thirteen years post Vishaka, our understanding and experience of sexual harassment has matured. My question to the legislature in creating this Bill echoes that of my friend, the electrician - why didn’t they get it?

©Naina Kapur 2010