Sexual harassment of working women has been widely practiced and systematically ignored. Men’s control over women’s jobs has often made coerced sexual relations the price of women’s material survival. Considered trivial or personal, or natural and inevitable, sexual harassment has become a social institution.
MacKinnon offers here the first major attempt to understand sexual harassment as a pervasive social problem and to present a legal argument that it is discrimination based on sex. Beginning with an analysis of victims’ experiences, she then examines sex discrimination doctrine as a whole, both for its potential in prohibiting sexual harassment and for its limitations.
Two distinct approaches to sex discrimination are seen to animate the law: one based on an analysis of the differences between the sexes, the other upon women’s social inequality. Arguing that sexual harassment at work is sex discrimination under both approaches, she criticizes the effectiveness of the law in reaching the real determinants of women’s social status. She concludes that a recognition of sexual harassment as illegal would support women’s economic equality and sexual self-determination at a point where the two are linked.
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An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.
WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment;
AND WHEREAS the protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as Convention on the Elimination of all Forms of Discrimination against Women, which has been ratified on the 25th June, 1993 by the Government of India;
AND WHEREAS it is expedient to make provisions for giving effect to the said Convention for protection of women against sexual harassment at workplace.
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That includes verbal forms of sexual harassment, like being catcalled or whistled at or getting unwanted comments of a sexual nature. It also includes physical harassment, cyber harassment and sexual assaults."The findings show that this is a pervasive problem and permeates all sectors of our lives," says Holly Kearl, the main author of the report. "Most people who said they had experienced sexual harassment experienced it in multiple locations."
"Sexual harassment until more recently has been viewed as part and parcel of what people experienced," says Decker, who wasn't involved in the survey. As a result, public health researchers don't monitor it. "It's often been dismissed, because it's considered not as egregious as sexual assault or rape."
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Sometimes the software engineer’s boss made comments that she was not meant for an engineering role, "that I could not handle it because I was a woman," she says, noting that she left a stable career at a big company to take the position at the startup. "It is so ridiculous. Would he ever say that to another man?
"I was constantly on edge, I had the pits in my stomach, and one morning I realized, 'I don't want to go to work,'" she says. "I had this constant feeling. I felt it before work, during work, and after work, and I was not seeing a light at the end of the tunnel anymore.
"I felt so alone when this was happening," she continues, "and I didn't know what to do aside from walking away."
Four months after she took the job, the woman quit.
It was only after resigning that she told the human resources department about her boss's behavior. But nothing happened to him, a high performer who, she says, the company protected.
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There is no exemption in the Sex Discrimination Act for small business. Employers in all small businesses, whatever the size, may be vicariously liable for acts of sexual harassment committed by employees unless all reasonable steps were taken to prevent it occurring.
Small businesses will still have to write and implement a sexual harassment policy and they still need to deal with complaints in an appropriate way. However, courts will take into account the size and resources of a business in deciding what is reasonable to expect them to do to prevent sexual harassment.