Mainstream WeeklyIntroduction
Violence against women and girls has been called the shadow pandemic of the current times (UN Women, 2020). While there has been an increasing attention on gender-based violence globally in the wake of the #MeToo movement, we still lack a consistent theoretical framework to capture the multiplicity of forms and their complex embedding in different social, economic and cultural tourism contexts. This might be partly due to the elusive character of violence, which emphasizes the need to adopt multi-level frameworks to study gender-based violence. However, violence and especially gender-based violence is seldom studied in tourism (Andrews, 2014a; Büscher & Fletcher, 2017). [1] The aim of this paper is to explore the interrelationship between gender and different forms of violence in tourism. While tourism alone does not necessarily create the conditions for violence to happen (Devine & Ojeda, 2017), [2] it often contributes to intensifying, rather than decreasing inequality (Koppa & Duffy, 2020). [3] Responding to recent calls for an “explicit gender-based analysis of violence” (Devine & Ojeda. 2017), the purpose of this article is to step back to analyse how such violence comes into being both in tourism production and consumption.
In this context, rethinking sexual harassment and gender discrimination involves several key elements:
Intersectional Perspective: Acknowledging that individuals may face unique and compounded challenges due to multiple aspects of their identity. Policies and interventions should be sensitive to these intersections.
Bystander Intervention: Encouraging bystanders to speak up and intervene when they witness harassment or discrimination, thus shifting the responsibility from the victim to the entire community.
Education and Awareness: Promoting comprehensive education and awareness campaigns that foster a culture of respect, consent, and equality from an early age.
Legal Reforms: Updating and strengthening legislation to reflect contemporary understandings of harassment and discrimination while ensuring that victims have accessible avenues for seeking justice.
Organizational Change: Implementing policies and practices within workplaces that prioritize inclusion, diversity, and a zero-tolerance approach to harassment and discrimination.
What Is Sexual Harassment?
The EEOC has defined sexual harassment in its guidelines as: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
• Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
• 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.
Unwelcome Behaviour is the critical word. Unwelcome does not mean "involuntary." A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances.
Sexual harassment includes many things...
• Actual or attempted rape or sexual assault.
• Unwanted pressure for sexual favors.
• Unwanted deliberate touching, leaning over, cornering, or pinching.
• Unwanted sexual looks or gestures.
• Unwanted letters, telephone calls, or materials of a sexual nature.
Definition of POSH Under Section 2 of POSH Act. [4]
aggrieved woman" means—
in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent;
in relation to a dwelling place or house, a woman of any age who is employed in such a dwelling place or house;
"appropriate Government" means—
in relation to a workplace which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly-
by the Central Government or the Union territory administration, the Central Government;
by the State Government, the State Government;
in relation to any workplace not covered under sub-clause (i) and falling within its territory, the State Government;
"Chairperson" means the Chairperson of the Local Complaints Committee nominated under sub-section (l) of section 7;
"District Officer" means an officer notified under section 5;
"domestic worker" means a woman who is employed to do the household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or ful1 time basis, but does not include any member of the family of the employer;
"employee" means a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name;
"employer" means:’—
in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority, as the case may be, may by an order specify in this behalf;
in any workplace not covered under sub-clause (i), any person responsible for the management, supervision and control of the workplace. Explanation.-For the purposes of this sub-clause "management" includes the person or board or committee responsible for formulation and administration of polices for such organisation;
in relation to workplace covered under sub-clauses (i) and (ii), the person discharging contractual obligations with respect to his or her employees;
in relation to a dwelling place or house, a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker;
"Internal Committee" means an Internal Complaints Committee constituted under section 4;
"Local Committee" means the Local Complaints Committee constituted under section 6;
"Member" means a Member of the Internal Committee or the Local Committee, as the case may be;
"prescribed" means prescribed by rules made under this Act;
"Presiding Officer" means the Presiding Officer of the Internal Complaints Committee nominated under sub-section (2) of section 4;
"respondent" means a person against whom the aggrieved woman has made a complaint under section 9;
"sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-
physical contact and advances; or
a demand or request for sexual favours; or
making sexually coloured remarks; or
showing pornography; or
any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
"workplace" includes—
any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;
any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;
hospitals or nursing homes;
any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;
any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey;
a dwelling place or a house;
"unorganised sector" in relation to a workplace means an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten.
Background Of POSH Act [5]
Sexual harassment at the workplace is widespread. Women all around the world have faced instances of sexual harassment, calling for a strong law to curb these acts. In India, the framework for the Sexual Harassment at Workplace law was laid down in the landmark judgement of the Supreme Court in Vishaka v. State of Rajasthan (1997).
In 1992, Bhanwari Devi, a Dalit woman who was a social worker employed with the Rural Development Programme of the Government of Rajasthan was gang raped. This highlighted the extents of sexual harassment incidents in India’s workplaces. It struck a chord with the nation and revealed the hazards working women face in the workplace. The Supreme Court framed guidelines and issued directions to the Union of India for a law to combat workplace sexual harassment.
The main intention of these guidelines was to provide a platform for redressal and grievance mechanisms against workplace sexual harassment. It was these guidelines that motivated the formation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH). The Act is very important as it discusses the various instances of sexual harassment and how a woman can complain against this kind of behaviour.
How Laws On Sexual Harassment Developed Over The Years In India
Before 1997 if a female faced sexual harassment at the workplace then she complained about it under section 354 of the Indian penal code (1860) which deals with the ‘criminal assault of women to outrage women’s modesty’ and section 509 which punishes an individual for using ‘word, gesture or act intended to insult the modesty of women.
Landmark Judgement Of Vishaka Case [6]
A Public Interest Litigation (PIL) was filed against the state of Rajasthan by Vishaka and other women to uphold the rights of working women under Articles 14, 19, and 21 of the Indian Constitution. The case was prompted by Bhanwari Devi, a social worker who was gang-raped while trying to prevent a child marriage. The Supreme Court of India took the matter seriously and created legally binding guidelines based on the principles of equality and dignity found in the Constitution and the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The following guidelines were:
Employers and responsible individuals are tasked with preventing sexual harassment and ensuring procedures are in place for resolving such cases. Sexual harassment includes unwelcome behavior such as:
(a) Physical contact and advances;
(b) Requests for sexual favors;
(c) Sexually suggestive remarks;
(d) Showing pornography; and
(e) Any unwelcome physical, verbal, or non-verbal conduct of a sexual nature.
Employers, whether in the public or private sector, must take steps to prevent sexual harassment. The following actions are essential:
(a) Clearly communicate and publish the prohibition of sexual harassment.
(b) Include rules against sexual harassment in government and public sector regulations, along with appropriate penalties for offenders.
(c) Ensure suitable working conditions to prevent hostile environments for women, ensuring they do not face employment disadvantages.
(d) Treat incidents as offenses under the Indian Penal Code, and the employer must file a complaint while protecting the victim from discrimination. Victims should have the option to request transfers.
(e) Disciplinary action should be taken for misconduct as defined by service rules.
(f) Employees should have the right to report harassment.
(g) Inform female employees of their rights and notify them of new legislation.
(h) Implement a complaint mechanism in the organization for addressing grievances, ensuring timely resolution.
Amendment in Indian penal code (1860) after Nirbhaya Case in 2013 [7]
Section 354A. Sexual harassment refers to unwanted physical contact and advances, which include unsolicited and explicit sexual suggestions, requests for sexual favors, displaying sexual images (pornography) without consent, and making unwanted sexual comments. Penalty: imprisonment of up to three years, and a fine.
Section 354B. Forcing a woman to undress. Penalty: imprisonment ranging from three to seven years, and a fine.
Section 354C. Observing or capturing images of a woman without her consent (voyeurism). Penalty: for a first conviction - imprisonment from one to three years and a fine. For subsequent convictions – imprisonment from three to seven years and a fine.
Section 354D. Pursuing a woman and contacting her or attempting to make contact despite her refusal. Monitoring a woman via the internet, email, or any other electronic means (stalking). Penalty: for a first conviction - up to three years in prison and a fine. For subsequent convictions – up to five years in prison and a fine.
Conclusion
As women’s roles shift from domestic tasks to professional environments, there is a pressing need for safety and effective laws due to rising offenses, such as unwanted sexual advances at work. These behaviors not only harm women’s physical and mental health but also discourage others from seeking independence. Sexual harassment undermines women’s constitutional right to participate in public employment, driving them away from job opportunities. While women strive for autonomy, a climate of insecurity reduces their chances and negatively impacts the economy. Promoting a culture of respect and awareness is essential for a healthy workplace. Addressing sexual harassment poses significant risks; increasing awareness and preventive measures can create a safer environment. Proper training, policy implementation, and monitoring will contribute positively, while fostering freedom and security among colleagues can mitigate fear in the workplace.
(Author: Akshita Srivastava is a 4th year law student at Lloyd Law College, Greater Noida, India; Email: akshitasri46[at]gmail.com)