“Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.” – Mahatma Gandhi
More than half of the total population of Bangladesh are women. Unfortunately, employment of women in Bangladesh is much lower than most countries of the world.‘Work’ is recognized as a right as well as an honour as per Article 20 of the Constitution. Moreover, as per Article 19(3), the state shall ensure equality of opportunity and participation of women in all spheres of national life. By interpreting the term ‘all spheres of national life’, it may be said that all spheres inevitably include ‘workplaces’. So, women have a right to work and right to equal opportunity in workplace with male counterparts.
The presence of women in working place has increased very swiftly within the last two decades. This huge female labour force has been participating in rural agricultural sector and certain specific sectors e.g. garment industries. Their contribution to the GDP growth can hardly be overstated. Women have the right to work with full freedom without harassment. It is a matter of great regret that working women are frequent victims of sexual harassment, and not to mention other forms of discriminations, in their workplaces.
Section 354 as well as section 509 of the Penal Code; Section 76 of the Dhaka Metropolitan Police Ordinance, 1976 and section 10 of the Nari O Shishu Nirjatan Daman Ain, 2000 deal with the term ‘Sexual Harassment’. In 2009, the Supreme Court of Bangladesh laid down a landmark decision in this regard. The BNWLA v. Bangladesh, 14 BLC 694 case has defined the term sexual harassment. A wide range of behaviors, from indecent gesture, teasing through abusive language, stalking, jokes having sexual implication to attempts or efforts to establish or demand or request for physical relations are included as sexual harassment in the definition. It also includes sexually determined unwelcome behavior or verbal representation, making love proposals and posing threat in case of refusal, showing pornography, taking video photographs for the purpose of blackmailing. The Supreme Court discussed the leading Indian case Vishakha v. State of Rajasthan, AIR 1997 SC 3011 in defining such acts as sexual harassment. We can define sexual harassment in short as a behavior with sexual implication which is unwelcome to the women. Besides the aforementioned behavior as defined in BNWLA case, there are other behaviors which can be termed as sexual harassment.
From the definition given by BNWLA case, Vishakha case etc. the term sexual harassment may be classified into three following categories.
- Unwelcome physical touch/contact,
- Verbal-derogatory remarks,
- Non-verbal -gesture.
Giving personal gifts to a female employee in workplace, blocking the way of a woman, throwing flying kisses can be termed as sexual harassment. Even standing close to a woman and touching her hair, neck, shoulders, and body etc, calling a woman ‘baby’, ‘doll’ or ‘honey’, turning discussions to sexual topics, asking a woman about her sexual or social life, spreading rumors about a woman’s sexual personal life are all examples of sexual harassment.
It is a misconception that the sexual harassment in workplace is always committed by a person of one sex to the person of the opposite sex. But in reality, a man or woman can be sexually harassed by a person of the same sex to which he/she belongs. But this concept has yet to develop in Bangladesh. It has developed in different countries especially where homosexual relationship is not prohibited. This principle has been decided in Melnychenko v. 84 Lumber Company, 424 Mass. 285(1997) by the Supreme Judicial Court of Massachusetts. In the USA and other countries, the court has prohibited same-sex sexual harassment. In those countries, even a woman can be convicted for harassing other women. Bangladesh should incorporate this broader notion of sexual harassment.
The consequences of sexual harassment in the workplace are dangerous. The physical and mental well-being as well as the economic opportunities of a woman are seriously affected by it. Insomnia, depression, nervousness, fear and other symptoms of psychological harm are its results. It leads the female workforce to a complete emotional breakdown. In consequence of the emotional breakdown, independent physical effects such as headache, loss of appetite, loss of weight, nausea and fatigue may occur. It reduces the performance of working women and hinders their economic prospects. The social and economic consequences of sexual harassment have other devastating effects. Sexual harassment is a form of discrimination as it causes economic harm to the women. As it hinders the working capability of the women in their workplace, it reinforces the subordination of women.
Along with the perpetrator, the employer(s) of the victim may also be vicariously liable for sexual harassment by their employees or agents. As per the well-established principle of law of torts it is known as ‘Vicarious Liability’. The term ‘Vicarious Liability’ is the legal doctrine which imposes liability on a person who himself does not cause injury to another person, but who will be liable for the acts of a person with whom he has a special relationship. Master-servant relationship, employer-employee relationship etc. are such kinds of relationships. The employers are bound to make a good working environment for women. Clause 3 of the guidelines declared in the BNWLA case stated the duties of employers. To maintain an effective mechanism for the purpose of preventing sexual harassment in workplace, and to provide administrative and institutional procedures so that the offences can be penalized are the duty of the employers or other responsible persons in the workplace. The employers must perform the duty and there can be no exceptions. The employers will maintain regular communication and effective consultation with the administrative authorities in accordance with clause 5 (d) of the guidelines. To prevent sexual harassment, the employers are bound to ensure that there is no hostile working environment which can endanger the confidence and trust of working women as stated in clause 6. They are bound to take disciplinary action under clause 7. When sexual harassment is proved, the employers are bound to take disciplinary action i.e. they may suspend the offender from the job as stated in clause 11.
When the employers fail to maintain the aforementioned duties, they can be vicariously liable. The Supreme Court of Bangladesh has laid down an authoritative judgment in this regard. In British American Tobacco Bangladesh (BATB) Company Ltd v. Begum Shamsun Nahar (66 DLR (AD) 80), the court laid down a precedent that “a person can be liable for tort as well and damages may be claimed against him for such wrongdoing as well as against an organization or establishment if it fails to ensure the prevention of sexual harassment and bullying to a woman.”
No direct involvement of the supervisor or agent is necessary to constitute sexual harassment. Mere acquiescence in this regard is enough. The victim can be entitled to compensatory damages for pain and suffering from sexual harassment. She can sue for invasion to her dignitary interest, for loss of her reputation. Sexual harassment creates hostile, degrading, offensive, humiliating working environment for women, causes embarrassment, humiliation and shame and affects their physical, mental and psychological space. The infliction of psychological pressure is a good reason for criminalization and placing tortious liabilities.
Sexual harassment in workplace compels many women to leave their jobs. They fall in economic crises. So mere criminalization of sexual harassment does not provide adequate relief towards the victimized women, although, no doubt, it is a necessary step. Besides criminalization of Sexual Harassment, there should have compensatory measures for its prevention. The BATB Company Ltd v. Begum Shamsun Nahar case developed a compensatory principle in case of sexual harassment of women in the workplace. It is a milestone decision by the Supreme Court that enhances the legal protection regime of working women against harassments in Bangladesh. Therefore, along with criminalization sexual harassment in workplace should also be considered as a tort.