• Sanya Khurana

America or India: Who Has Better Laws Against Sexual Harassment?

Image Source: The Verge

If you ever happen to have a conversation with a girl about sexual harassment, she will have multiple stories to tell. The stories may range from off handed, distasteful comments in passing, to online harassment, all the way to unwelcome physical advances. The commonality - all such situations would involve mental agony that more often than not, leaves permanent scars.

In light of the #MeToo movement, many women came out with their stories, recalling their horrors, from being followed in broad daylight to almost being raped. MeToo was closely followed by #NotAllMen, that sought to describe how every man was not a sexual predator. Given that harassment is ingrained in our patriarchal structure, such vocal attention to it deserves serious analysis. While the media frenzy could be linked to the nature of such acquisitions, and the celebrities involved, there is no escaping the fact that #MeToo was women’s way of saying that they had suffered enough. Refreshing as it may be, a movement’s success can only be gauged by the lasting change that it brings. To this end, in this part of our series on the MeToo campaign, we will be looking at the evolution of laws against sexual harassment in two jurisdictions- United States and India.

The Declaration on the Elimination of Violence Against Women classifies violence against women into three categories:

[if !supportLists]1) [endif]Occurring in the family;

[if !supportLists]2) [endif]Occurring within the general community; and,

[if !supportLists]3) [endif]Perpetrated or condoned by the State.

The term sexual harassment is used in the Declaration to define violence occurring in the general community as,

"Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution."

America: Freedom and Solidarity, but what about Protection?

The US was the first country to codify laws against sexual harassment under the Civil Rights Act of 1964. This CRA prohibits discrimination of employees in the workplace based on race, religion, color, sex, and national origin. This discrimination was made illegal in Title VII of the Act. To this day, Title VII of the CRA is one of the most used provision in litigation under American law. In 1968, the Fair Housing Act was passed and it had the effect of reining in harassment in jobs created by government contractors, and provided affirmative action to for women employment.

In Williams v. Saxbe (1976) and Paulette L. Barnes, Appellant, v. Douglas M. Costle, Administrator of the Environmental Protection Agency (1977), it was held that sexual discrimination included terminating services for refusing a supervisor's sexual advances. Around the same time, in Bundy v. Jackson, the Federal Appeals Court held that workplace sexual harassment fell under employment discrimination. Five years later, the US Supreme Court affirmed the ruling in Meritor Savings Bank v. Vinson(1986) where sexual harassment was finally held to be under the umbrella of sexual discrimination.

In 1991, Jenson v. Eveleth Taconite Co. became the first sexual harassment case to be given class action (Explained: Class Action Lawsuits) status paving way for women to collectivize in pursuit of their rights. In 1993, the Supreme Court changed the process of trying sexual harassment cases in Harris v. Forklift Systems, ruling that victims did not need to prove that they suffered physical or detrimental psychological injury as a result of the unwelcome behavior. This meant that, for the first time, a simple proof of the act having been committed by the defendant was enough to entitle compensation. Finally in 2006, Burlington Northern & Santa Fe Railway Co. v. White revised the standard for retaliation against a sexual harassment complainant to ‘any adverse employment decision or treatment that would be likely to dissuade a reasonable worker from making or supporting a charge of discrimination’.

For the MeToo campaign, America was the mecca, with several cases abasing some of the most famous personalities in politics and Hollywood - President Trump (who went far enough to boast about his actions), the disgraced Producer and Hollywood mogul Harvey Weinstein, Roger Ailes and Bill O’Reilly (formerly) at Fox News and Matt Lauer are a few names that made headlines. The First Amendment, for its sweeping protections to free speech, provided considerable cover for women. This would not have been possible if US had European or Indian style free speech laws.

Thriving Technicalities

For all its developments, there are still a few places where American law comes up short. The US Supreme Court recognizes the Faragher–Ellerth defense, [endif] which, in most cases, makes the employer liable only when there is proof of negligence on its part, without contributory negligence from the victim. Another issue is that the statute requires harassment to be unwelcome to qualify as a violation of Title VII. This allows for victim’s behavior to become a relevant fact in court, leading to acquisitions on character that discourage many from pursuing claims in the first place.

The situation has worsened since the 2018 case of Vance v. Ball State University, where SCOTUS narrowed the definition of a supervisor to only those with hiring and firing power. The restrictive definition excludes harassment by coworkers who control work schedules but cannot technically fire people.

While it is extremely clear that the Supreme Court has set a deadly precedent by its judgments, the problem becomes even more acute as the Congress has failed to act to nullify the judgements by statute. The question here is not on the legality of sexual harassment – that has long been settled in most civilized societies – it is about the ability of women to pursue their rights and, the definition of what constitutes harassment. Unfortunately, sexual harassment has not yet been declared illegal, in principle, by Kuwait and Djibouti.

India: Principles without Pith

The Constitution of India, in theory, is based on the objective of equality of status and opportunity while seeking to provide social, economic and political justice to all. The Preamble to the Constitution enshrines these promises in a gender/sex neutral language. Article 14 of the Constitution enshrines the dual principles of equality before law and equal protection of laws, while Article 15 (1) and (2) prohibit State practiced or condoned discrimination against any citizen on a number of grounds, including sex. There are enabling provisions for affirmative action for several groups, including women.

The term ‘sexual harassment’ has not been specifically defined under Indian law. The Indian Penal Code, a British era legislation though severally amended, broadly identifies three offences that could be placed under sexual harassment. These are:

[if !supportLists]1)[endif]Molestation (Sec. 354);

[if !supportLists]2)[endif]Rape (Sec. 375); and,

[if !supportLists]3)[endif]Insulting the modesty of a woman aka, eve- teasing (Sec. 509), which can be related with sexual harassment of women in general and, at the workplace in particular.

India’s Supreme Court has held that actions which are suggestive of sex could fall under ‘molestation’. For this, the mere presence of a woman at the time of the act was enough and it was not necessary for the same to be even witnessed by her. Thus anything of the kind done around a woman fast asleep would also qualify to be molestation (State of Punjab v. Major Singh).

But, as in the United States, progress came at a price. In a later decision, the Supreme Court ruled that exposure of private parts in only amounted to indecency, and not assault or use of criminal force (Ashwani Kumar Das v. Raman Chandra). This is problematic because when there is no evidence to prove an assault or use of force, the offence would not fall under s.354, but under the far less consequential s. 509. Section 509 is less consequential because it has a very low standard of proof. It only requires proof of an action that exposes a woman to unwelcome sexual content. It was intended to deter the daily menace faced by Indian women in public such as lewd comments on the street- which is why it is also referred to as ‘eve teasing’. It carries a maximum punishment of only one year- which when compared to the amount of time it takes litigating cases in India is, measly.

It was, however, in an action on a Public Interest Litigation that one of the biggest reforms of India’s sexual harassment laws was carried out. In 1992, a social worker in the Indian state of Rajasthan was raped by local men in retaliation for her attempts at stopping child marriage - a prevailing social evil in the country. Following her a number of women’s group litigated the Indian Supreme Court to force governmental action on increasing cases of sexual harassment. The case, Vishakha v. State of Rajasthan has since yielded a number of progressive orders – most remarkably, a detailed set of guidelines to government and private employers. These guidelines provide for, among other things, establishment of elaborate reporting mechanisms for cases of sexual harassment at workplace. They also laid down the law on protecting women from retaliatory measures that could hurt their careers for reporting cases and other forms of harassment. This was supplemented by another SC ruling in a different case where physical contact was not required for an action to fall into sexual harassment. Since the order in 1997, they have become the hallmark of sexual harassment protections in the country. They were given statutory status by the Indian Parliament under the Sexual Harassment at Workplace Act, 2013.

The Criminal Law (Amendment) Act, 2013 introduced several changes to the Indian Penal Code, with respect to sexual offences. It made sexual harassment an express offence under Section 354A, while introducing new provisions against disrobing a woman without consent, stalking and sexual acts by person in authority. However, in India the problem has not been the existence of provisions but a reinforcing cycle of lack of reporting being furthered by little or severely delayed action against accused. Often, the action of the investigative machinery involves cover ups – especially when powerful men are involved – and that involves considerable dehumanization of the accuser’s character in court. There is a documented history of cases where defense lawyers have, in open court, attempted to prove that the victims had consented by bringing up wild theories of their active sexual life or worse still, of them engaging in prostitution. Such a process of systemic dehumanization precludes many from reporting instances of rape as well, while other offences are routinely silenced.

The trend, thankfully, is changing with progressing societal attitudes. A recent study (see here) of sexual harassment in BSE (India’s leading stock exchange) Top 100 companies indicated much higher reporting of instances of sexual harassment. But when a practice of dehumanization festers in a society for so long, it becomes systemic and the impact on the life of victims is entrenched. Another study, aiming to quantify the economic effect of sexual harassment by a student at Brown University (see study) found out that women from the University of Delhi – India’s premier undergraduate university – were more likely to choose their college on the basis of safety during commute rather than its quality and reputation.[if !supportFootnotes][endif]

Where are women more secure?

The problem is not just the act of sexual harassment alone, it is the stigma associated with talking about it and the manner in which victims are treated or in worse case, silenced. The fact that Power is no immunity from sexual harassment is coming to light with movements like #MeToo and #Time’sUp in the west – with obvious spillovers in other parts of the world as well. The various interviews, revelations about some of the biggest names of our times and the personal experiences who suffered is an incredible progression from the era of silence and tolerance.

How many times have women left early from a place just because they do not wish to commute when it’s dark? Let’s face it, it is not about the laws or their implementation. Unless a major change is not effected in the mentality of the world at large, the strictest of the laws will never be put to use and our future as a progressive society would never be realized. That is the spirit of the #MeToo and #Time’sUp movements – a spirit we must foster.

Comments are welcome at polemicsnpedantics@gmail.com.

About The Author

Sanya Khurana is a student of law at the IP University, Delhi, India. Sanya is also pursuing her Company Secretary course and is an avid follower of International Relations, in addition to being an established participant and organizer of Model United Nations Conferences at the national and international level.

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