Dipti Sapkota
In 1998, the Japanese automotive giant Mitsubishi Motors agreed to pay $34 million in compensation to female staff working at its manufacturing plant in Illinois, United States, as they were found to be routinely fondled, verbally abused, and subjected to obscene jokes, behavior, and graffiti by some male workers.
A woman working in a laundromat in Brisbane was subjected to escalating unwelcome conduct from her boss, and work was withheld from her when she rejected his advances. The sexual harassment included inappropriate touching of the woman’s bottom and legs, forcing the woman to touch the man’s genitals, asking for massages, repeated requests for sex, and explicit text messages. The woman was compensated with $130,000 for general and aggravated damages by the Industrial Court of Queensland in 2021. A survey published in Hong Kong in February 2007 showed that nearly 25 percent of workers interviewed suffered sexual harassment with one-third of them being men.
Sexual harassment in the workplace has clearly been one of the most prevalent mischiefs in our society for a very long time. It is a form of sex discrimination that has negatively impacted the working environment, undermines gender equality at work, creates unfair labor practices in employment. But importantly, it has severe adverse impacts on the dignity of the workers resulting in psychological stress for victims and loss of productivity eventually.
At the outset, sexual harassment may seem like those misbehaviors purely associated with sexual activities. Ideally, unwanted touching or grabbing may not be understood as acts of sexual harassment. But sexual harassment in the workplace is not just limited to sexual activities but encompasses a wide range of activities in physical, verbal, and non-verbal forms. It includes physical violence, touching, unnecessary close proximity along with verbal comments and questions about the appearance, lifestyle, comments on sexual orientation, offensive phone calls. Additionally, it also includes non-verbal activities such as whistling, sexually suggestive gestures, display of sexual materials, etc.
In the context of Nepal, Sexual Harassment (Prevention) at Workplace Act 2015 (2017) has prescribed an exhaustive list of acts which is deemed as sexual harassment. Interestingly, it has recognized acts committed by coercion, undue influence, or enticement by a person in power or higher designation. The list of activities recognized in Nepalese legal contexts includes physical contact and advances, showing or displaying pornographic material, expressing sexual motives by way of written, verbal, or non-verbal means, demanding or proposing for sexual favors, and flirting or harassing with a sexual motive.
In today’s modern-day culture, there seems to be a thin line of distinction between socialization and workplace harassment. Several unconventional ways of harassment have been in motion for the longest time. For instance, repeatedly asking a person to socialize during off-duty hours when the person has said no or has indicated that he or she is not interested. Furthermore, not taking “No” for an answer for non-work-related requests by a person who is in a senior position (maybe a supervisor) is an example of how people in seniority exercise their power to fulfill their interest in a subtle manner.
Not to forget the immense amount of effect it has on the victims, the workplace, and the employers. The victims do not usually report these acts of sexual harassment because of the fear of loss of job and consequently loss of income. Apart from this, the victims have to go through various psychological suffering including humiliation, reduced motivation, loss of self-esteem; behavioral change including isolation, deterioration of relationships; stress-related physical and mental illness including drugs and alcohol abuse; victims foregoing career opportunities, leaving employment or committing suicide.
Essentially there are remarkable impacts on the workplace as well. Along with reputational risks and concerns of unfair labor practice, progress, productivity, and innovation within the enterprise are hindered when the environment is deficient in trust and team spirit.
Despite several legal provisions that embark on recourse mechanisms for victims, it is seen that the victims have not reported the conduct of sexual harassment. As a matter of mitigation, it is the employer who is responsible for creating an atmosphere free of discrimination, harassment, abuse, misconduct, or exploitation, whether it is sexual or otherwise. This obligation exists, even if the victim does not wish to pursue a formal complaint.
Sapkota is Associate Advocate at Pioneer Law Associates.
