Sexual harassment is a legal term, created for the purpose of ending harassment and discrimination against women in the workplace. The term is constantly being redefined and extended in legislation and court decisions. However, not all sexual behavior in the workplace is harassment, and the laws against sexual harassment do not extend to situations outside the workplace or school. The basic definition of sexual harassment comes from the United States Equal Employment Opportunity Commission (EEOC): “Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.” Sexual Harassment is a problematic issue where women and men work together. It is being recognized as a violation of human rights and human dignity which undermines the equality of opportunity and treatment between men and women. It is difficult to say what actually constitutes sexual harassment. It encompasses a wide range of misconduct ranging from unwelcome physical contact to verbal conduct of a sexual nature. In clear cases of sexual harassment, an employee is made to believe that she will lose her job unless she sleeps with her boss. Harassment can also take the form of offensive, sexual jokes being pinched or fondled, subjected to repeated lewd or pornographic remarks and constantly being belittled and referred to by sexist names. From the study by Nepal Health Research Council, 72% workers had heard about Sexual Harassment and among them, 52% had faced it in their workplace. The most frequent type of sexual harassment was passing vulgar jokes, remarks or teasing obscenely (87%). Twenty three percent of the workers felt disruption on their job, 61% were affected mentally and 8% were affected physically after harassment. All the workers felt provision and execution of penalty to the perpetrator. But none of the factory had policy on sexual harassment or none of the worker had complained about sexual harassment to the authority yet. In Nepal, even in the absence of law, the labor court recognized sexual harassment as misconduct in the workplace. Also the labor court used the finding of research conducted by Forum for Women, Law and Development/ International Labor Organization(FWLD/ILO) and stated that sexual harassment would discourage women’s participation in the economic sector and also acknowledged need to enact a law inline with General Recommendation (GR) 19 of The Convention on the Elimination of Discrimination against Women(CEDAW). Similarly in Nepal, Public Interest Litigation was filed12 times at the Supreme Court on behalf of the victim. In response to the Public Interest Litigation (PIL) the Supreme Court issued a directive order to the concerned Ministries to develop a Bill on sexual harassment in the workplace. Following the court order initiatives have been started, to draft a specific legislation-making employer accountable to guarantee safe and healthy workplace and recognize sexual harassment as misconduct. In Nepal Civil Societies has already drafted a Bill 14 and Government is also on the process of it. However, there is no parliament yet in Nepal due to this law making process has been affected. Also, Nepal has ratified 16 international human rights instrument including Convention on the Elimination of All Forms of Discrimination Against Women, (CEDAW) 1979. Also, the General Recommendation No. 19 (Eleventh session, 1992) recommends governments to take effective measures including strong penal sanctions, civil remedies and compensatory provisions to protect women against sexual harassment in the Workplace. In 2002, the Supreme Court issued an order to the government to prepare a separate and special legislation on sexual harassment at workplace. However, almost after four years—on Oct. 3, 2006—the government came up with an easy solution: It amended a chapter on ‘intent to commit sexual intercourse’ of the Muluki Ain (the Civil Code), which loosely defined sexual harassment as any ‘unwanted’ activities that were carried out with an intention of having sexual pleasures, including touching, staring, unwelcome comments about one’s body, and display of sexually explicit images. The law has a very shaky arrangement on punishment as it says that a perpetrator of sexual harassment could be sentenced “up to” one-year jail term and fined Rs. 10,000, which creates loopholes for the offender to escape with minimum punishment that could be anything starting from 24-hour detention to Rs.100 fine. The law defines some activities as sexual harassment, which should have come under ‘rape attempt’. The acts such as attempts to open others’ undergarments are also categorized as sexual harassment. If anyone makes repeated attempts of sexual harassment, that too should be taken as something more than sexual harassment and be made liable to harsher punishment. As per the Ministry of Law and Justice (MoLJ) Joint Secretary Kamal Ghimire, Government is in the process of finalizing a draft bill on sexual harassment at workplace. The Ministry of Law and Justice (MoLJ) has already forwarded a preliminary draft of the bill to the Ministry of Women, Children and Social Welfare, which will decide when and how to finalize it and register it for a parliamentary nod. Government should encourage the compilation of statistics and research on the extent, causes and effects of sexual harassment, and on the effectiveness of measures to prevent sexual harassment. Labor Office should play an effective role to monitor the employment conditions of workers. Gender sensitive training to judicial, quasi-judicial bodies (Labor Department, Labor Office etc) and law enforcement officers and other public officials are essential to provide justice to the victims of sexual harassment. A specific convention should be developed to deal with the issue of sexual harassment. International cooperation should be promoted for awareness programs to research, law formulation and care and support to the victims. Sexual Harassment is a human rights issue, a labor issue and a health and safety issue and hence needs a serious attention and action from all sectors in the country.
Reference:
http://www.hr-guide.com/data/A07203.htm http://www3.uakron.edu/lawrev/robert1.html http://legal-dictionary.thefreedictionary.com/Sexual+harrasment http://www.equalrights.org/publications/kyr/shwork.asp http://www.nolo.com/legal-encyclopedia/article-29851.html http://www.hr-guide.com/data/A07202.htm The Essential Guide to Handling Workplace Harassment & Discrimination, by Deborah C. England (Nolo). http://openlibrary.org/books/OL16238021M/Sexual_harassment_at_the_workplace_in_Nepal http://www.fwld.org/pdf_files/Sexual_harassment_study.pdf http://www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/pradhanmalla.sh.pdf http://www.ekantipur.com/news/news-detail.php?news_id=300864 http://us.oneworld.net/article/sexual-harassment-work-spirals-nepal http://nhrc.org.np/ojs/index.php?journal=nhrc&page=article&op=viewFile&path%5B%5D=201&path%5B%5D=241 http://www.nepjol.info/index.php/JNHRC/article/viewArticle/3015 http://www.un.org/womenwatch/osagi/pdf/whatissh.pdf http://www.fwld.org/pdf_files/Sexual_harassment_study.pdf http://www.nolo.com/products/the-essential-guide-to-handling-workplace-harassment-&-discrimination-HDAB.html;jsessionid=D523108427E0168C6C9544674FFFF17C http://www.nolo.com/legal-encyclopedia/article-29851.html http://www.equalrights.org/publications/kyr/shwork.asp
Dreary bard's Blog 