Vol. 2 :: No. 09 August, 2000 (Shrawan-Bhadra)

Cover Feature

Sexual Harassment:

Breaking the Taboo

With the data indicating a steadily growing participation of women in Nepal’s labour market, anyone can guess that the problems of sexual harassment at the workplace should be growing. But several surveys have found the opposite. Business Age tries to unearth the reasons for the same and also find our why companies should concentrate their attention more towards this problem

In a recent training program organized for the women trade union leaders, a participant caught the attention with a story on sexual harassment that took place in the factory of one of the largest companies in Nepal. The story went like this:

A female worker was asked by her male supervisor to see him at his quarter for an over time bill. When she visited the supervisor, she was raped. Next morning, her colleagues came to know about her suffering. So one day, without giving the slightest hint, seven female colleagues invited the supervisor for a movie. After the movie they went together for lunch. And in the hotel, the women settled the score by beating up the supervisor. After the incident, the supervisor did not dare to report to work for three weeks. However, he was transferred to the company headquarters at Kathmandu. The victim had to give up her job because her husband did not want her to work any more and the family had to suffer.

The participant who related this story also said, "Although we took revenge with the supervisor, we don’t know whether that was the proper way to deal with the case. After the event, we are living in a constant fear that something else might happen to us now as retaliation."

The woman was very brave to tell the story, because sexual harassment is still a taboo in Nepali society, more so for a woman. That is why there is virtually no information available about the status of sexual harassment at workplaces. Anju Chettri, an editor with Ashmita, a women’s monthly magazine, says that when they tried to take up the issue they had to give up their effort as nobody dared to respond to their survey questionnaire. Due to lack of information, it is very difficult to fathom the depth, type and prevalence of workplace sexual harassment in Nepal. The victim shies away from disclosing the information, for fear of further humiliation. As there are no proper laws to address sexual harassment, the victim never receives justice, view women lawyers.

Perhaps this is the reason why several studies have come up with the conclusion that the problem of sexual harassment is not that grave right now in Nepal. In a study conducted by New ERA (1994) on the problems and constraints of working women in formal sectors of employment, only 10 percent of the female respondents reported that they face "personal harassment" at workplaces. In another study done by Arzu Deuba (1996) on the status of women managers in Nepal, although sexual harassment was not specifically addressed, 33 percent of the female respondents did say that they were discriminated on the ground of sex. Such discrimination were reflected in job assignment, training and promotional opportunities and behaviour from their bosses and colleagues. However, in the same survey it was also reported that sexual harassment from male colleagues was not a problem in their work situation.

This indicates that the problem is not there with educated women, possibly because "they are well aware about their duty and rights", as Deuba told Business Age. However, she also says "In Nepal, where there is harassment at public places and violence in private life, obviously there is harassment at workplaces. But the reporting is minimal". According to her, apart from carpets and garments the problem is most prominent in dance restaurants. Since the girls working there are virtually uneducated and thus not aware of their rights and duties, they do not make any complaint to the authorities. They are easily made to do whatever the owners or managers of the establishments may want of them in the name of hospitality or guest entertainment. This is the example of latent sexual exploitation and harassment. Moreover, as Binda Pandey, now Chief of the Education Department of General Federation of Nepalese Trade Unions (GEFONT) points out, there also is a tendency to think that sexual harassment is only when the victim is sexually molested. If one turns to the documentation prepared by International Labour Organization (ILO), sexual molestation or rape is classified under sexual violence, not simply harassment.

One very interesting find about Nepal is reported by GEFONT itself. On the basis of a survey conducted with over two hundred leaders of trade unions affiliated to it, GEFONT found that the incidents of some forms of sexual harassment have actually gone down in the country over the last several years (see box). Explaining the reasons for the same, Pandey says it is probably because of the presence of Trade Unions. The victims can lodge complaints to the unions which may take steps to solve the problem. Another reason may be better awareness now than earlier. And for that too, Pandey claims that the credit should go to the trade union. Explaining it further, she says it is not that in all harassment cases it is the boss that is the aggressor; it is equally possible that the harasser is a co-worker. When the trade unions educate all the workers about good behaviour among the co-workers, possibility of such harassment is automatically minimized. However, there are also views that trade unions may try to avoid handling cases of sexual harassment in which both the harasser as well as the victim may be members of the same union. In such a situation, the only solution may lie in setting up a system by the company management itself so as to tackle the problem in time. Deuba suggests the companies to provide employees clearly defined terms of reference, orientation on sexual harassment and organizational protection.

Sectors most prone to sexual harassment

When asked to name a profession or sector where sexual harassment is most likely to take place, people say that the carpet and garment industries – where a large majority of women work – are equally notorious as dance restaurants. Whenever there is news on ‘trafficking of girls’ the first thing people like to ask is "from which factory has she been picked up?" Many believe that carpet and garment industries are the first stop for girl trafficking in Nepal. At first, the girls are lured by the contractor from villages for an urban job and then they are trafficked to India. In the training program mentioned above, another woman participant related a story in which a labour contractor, commonly called thekedar, raped a female worker who later gave birth to a child. For fear of social ostracism she cannot claim him to be the legitimate father of the child. And she is living a pathetic life. In yet another incident, a foreign manager employed two sisters as his maids. He just disappeared when both girls got pregnant.

But these examples are clearly missing the point. When sexual harassment is defined as any sexually explicit behaviour that the recipient perceives as unwelcome, many behaviours will fall under the category of sexual harassment. And such harassment is equally likely to be present in all professions and in all organizations whether civil service, educational institutes or banks (see boxes for definition and types of sexual harassment).

Management Problem

The above incidents reflect cases that get reported, if ever, as cases of sexual harassment. And the way the victim or the management did or did not respond to these cases indicate the consequences that such incidents result into if there is no formal system to stop the problem from cropping up and to take necessary steps when they actually surface. Since these incidents are extreme forms of sexual harassment, which are rather referred to as ‘sexual violence’, one can only imagine the extent of subtler ‘sexual harassment’ that may be going on in workplaces. But surprisingly, the management in companies of Nepal do not seem to have realized the gravity of the situation. When Business Age contacted about 50 CEOs of prominent companies to find out their companies’ preparedness to handle the problem, only six responses were received. It was however learnt that Hyatt Regency and Nepal Lever have included a clause about sexual harassment in their employment policies, but the managements were not willing to share the content of the policy with the press. Most of the other companies were simply unaware of the issue itself as can be understood from their reluctance to answer to Business Age query. Though some of the joint ventures with MNCs were found to be aware about the issue, they do not want to reveal whether they have any policy or rule to address the problem. Lack of response in such a case indicates only one thing: They have no such policy. But they cannot be blamed, because there is no national policy or law on which to base the company policy. However, those affiliated to MNCs can design it, as Hyatt has done, in line with the overall employment policy of their respective parent MNC.

The perplexing question that is posing problem for the companies and their management, who truly want to maintain a sexual harassment-free environment in their factories and offices, is how to handle a case of sexual harassment when the existing laws and bylaws are silent about it. Sapana Malla, a woman lawyer, who specializes in corporate law and women issues, gives a list of several cases in which even the rape victims could not receive justice because of the difficulties in presenting witnesses. In such a situation, the management will have difficulty in pursuing the case too seriously. If they do so, the harasser may win the case in court. Malla revealed yet another surprise. Quoting a survey report prepared by Pro Public, an NGO, she informed that even women lawyers are facing problems of sexual harassment at workplace (see box). That find shatters the assumption that sexual harassment is a problem only with uneducated women. If the trend is not reversed in time it may also lead to situations as was reported in India in the recent past. A newspaper cutting that Malla has provided Business Age reveals how a woman lawyer in Andhra Pradesh committed suicide because she felt she was being sexually harassed by her seniors.

On the part of the company management or even employees, there also is a tendency to look at sexual harassment as a part of job discrimination on the ground of sex, and it is regarded as a natural outcome of females and males working together. As such, the problem is regarded as a personal one of the victim about which nothing can be done by the company. But that outlook is gradually changing, and it is also being regarded as a social and managerial problem, though this change is outlook is not so visible in Nepali corporate world as in overseas, especially in the developed industrialized world.

The problem becomes a managerial issue for several reasons. For one, it hampers organizational productivity, and leads to additional costs in terms of fines and compensation and also in terms of loss of image of the organization. Additionally, the employee turnover and absenteeism will rise. On the basis of a survey across companies in USA and Europe (that included companies like Nestle, British Telecom, General Motors, Volkswagen and IBM) ILO has, in a report published in 1999, documented six reasons why the management should take actions to solve the problem of sexual harassment at workplace (see box).

Legal compliance may not be the reason for Nepali companies to pay attention towards this problem, as the country has no such law to be complied with. However, the other reasons are sufficient to call for the attention of the top management. But as the tendency is not to report the cases and not to make complaints of sexual harassment, how can a manager know whether the subordinate is suffering from such harassment? To help them, experts have pointed out some symptoms about which the manager can be always on the look out (see box).

Going by the trend across the world, countries are either coming up with separate law on this or have the provisions incorporated under some other relevant laws. Ms Aeberhard-Hodges who had done a study on sexual harassment at workplaces for ILO says in her work published in International Labour Review (1996): "Until the mid 1980s, few countries had any explicit legislation on sexual harassment, though broader legislation had been increasingly applied to the problem resulting in relevant jurisprudence or case law. By now some 40 countries have adopted specific legislation for a better protection of workers against sexual harassment."

But the situation in Nepal has not reached that stage as yet. Neither has it in other Asian countries. In a survey conducted by Asian Women Workers Newsletter and published in its Vol. 19, No. 2 (April 2000), only Hong Kong among the nine Asian countries surveyed was found to have a separate legislation to protect against sexual harassment at workplace. All the other countries surveyed have no separate law, but have some provisions about the issue included in other laws. For example, in Nepal, the relevant law is the Civil Code, in Thailand the Labour Protection Law, and in Japan the Equal Opportunity Law.

As the official statistics show, participation of Nepali women in the labour force is steadily growing. The reasons for the same may be various, but one of the results is accompanying (though not necessarily proportional) growth in the problem of sexual harassment at the workplace. This is for two reasons: First, the women are more likely to be in the lower levels of organizational hierarchy. And this is in fact the case in Nepal. Based on data pertaining to 1996/97, it is estimated that among the 40,419 women employed in the manufacturing sector in Nepal, 97.19% were operatives, 2.26% in administrative jobs and 0.55% in technical jobs. Secondly, the women entering the job market will be younger in age. Being at the lower levels of organizational hierarchy as well as young in age, the women are very much vulnerable to sexual harassment. To avoid tensions that such problems would lead them into, the companies are sooner or later going to be forced to adopt appropriate policies to effectively address sexual harassment.

Why Employ Women

Apart from economic reasons of the women to join the labour force (which may be considered as the supply side), there also are demand side factors for hiring women by employers. Shishir Subba of Central Department of Psychology in Tribhuvan University, who is a specialist in clinical and social psychology, says, certain jobs are traditionally considered to be female jobs, like nursing. Though the traditional concept is breaking down, it has also opened those jobs for women which were traditionally considered to be men-only jobs, such as those of electrician’s, pilot’s etc. Likewise, there are some jobs in which women are better adapted, such as in precision works. They are meticulous and no-nonsense. Compared to males they can stay in the same chair for longer hours.

However, sexual harassment is not necessarily a problem of the women alone. Male employees too are possible victims. In her article Aeberhard-Hodges has quoted a case involving United States Peace Corps in which US government agreed to pay a record sum of US$ 250,000 to a man who accused his female boss of making sexual advances.

Explaining the reason for growing female employment, Subba also refers to a study conducted abroad which found that men are influenced by women, instead of the other way round. That has provided a basis for companies to hire women in jobs of public relations and the like. The finding has also established the logic of using female models in advertisement of products targeted for men. That may also explain why women are more vulnerable to sexual harassment. Such jobs require them to be attractively dressed or made up, inviting unwanted passes from the male customers, seniors and co-workers. However, even shabbily dressed women may be targets of sexual harassment with comments on their shabby dress up.

Subba thinks that sexual harassment is almost universal and not limited to a country, region or profession. However, he also informs that the cases of sexual harassment at workplace in developed and industrialized countries like USA are now going down though they had increased very fast till the last decade. The increase was because of growing awareness and implementation of policies which encouraged victims to lodge complaints. Now, because of the strictness maintained in enforcing the policies against harassment, the trend is gradually reversing as the probable harassers are made aware about the problem as well as the consequences. Very interestingly, the ILO survey report also mentions that 80% of the harassment is unintended – the victim feels harassed, but the alleged harasser does not know that his/her behaviour is being perceived as harassment by the receiver.

As the trade unions are increasing their attention on this issue, the government is likely to come up with necessary law to govern such harassment. And the questions that such a law has to address are several. For example who is to be made liable for punishment for sexual harassment – the company (employer) or the harasser? Some may suggest that the harasser should be penalized, but others also argue that the lax management should be held equally liable for the problem. The best would be a mixture of both. This would force the management to adopt and implement sound policy and rules so as to minimize such cases. At the same time, it will also make the possible harasser think twice before committing the act.

Another point to consider is about the process of handling the case. Arbitration is considered by some as the better process for several reasons. For example, it is a better way to ensure confidentiality of the case, which also may be finalized faster. But, as Malla says, some of such cases may also involve criminal offence, which cannot be solved through arbitration. Therefore, she suggests that in-camera hearings should be provided for. Pandey’s suggestion is to have family courts. The main idea, however, is to maintain confidentiality of the proceedings.

"Sexual harassment is still unrecognized as a problem"
What is the trend in Nepal about the occurrence of cases of sexual harassment at workplace? The major problem is that the cases are not coming out openly. We only hear of cases that are reported with a legal perspective. It is possible that our social practice which tends to view such cases in negative light, coupled with the fear on the part of the victim of perhaps losing the job have resulted in harassment cases not being reported. Nevertheless, such harassment is taking place and this cannot be denied.	Sapana Malla, Advocate
But the recognition of the problem is lacking. We must realize that there are two kinds of workplaces – organized and unorganized. Sexual harassment is present more in the second type. The problem is also likely to be there in development agencies, international organizations, INGOs and NGOs though they may only employ ten or less number of people. Which sector is more prone to such harassment? On the basis of our surveys and cases reported, we can say that harassment cases are present in large numbers in development agencies and NGOs. The survey conducted by Pro-Public recently shows that even female lawyers are being sexually harassed. According to the study, about 73 percent of the female lawyers have stated that they have felt physical or verbal harassment as women. We see that the sample population was of lawyers and they spoke out openly. But if you talk about factory workers, they are frightened of reporting because they could lose their work and the society would also look at them negatively. How efficient do you think the legal framework is to check sexual harassment? There is no legal framework governing sexual harassment other than those cases in which ‘intention of intercourse’ is proved. Looking from that perspective, if any part of the body – right from the head to the foot – is touched with such an intention, the act is liable for legal action. But rarely have there been cases registered under that framework. And even then, the accused is liable for a fine of up to only Rs. 500 or a year in prison, that too if the case is proved. So there is really no concrete law regarding sexual harassment. You should be able to invoke the law governing rape or intention of rape. There is also the incest law but that also is not directly related to sexual harassment. The law governing libel, abuse or insult is there, but since it mainly concerns verbal abuse that too is not appropriate for the case of sexual harassment. Also, it is a general legislation and is not meant specifically for harassment at the workplace. Here too, the number of case filed under the legislation is almost nil. Do you think that there should be a separate law for such cases? Talking about the workplace, the labour act was amended and a new labour act came into force in 2048 B.S. A provision could have been included in this law regarding sexual harassment at the workplace. An amendment can be made even now rather than creating a separate act. What do you think of the overall attitude of the judiciary in Nepal toward cases of sexual harassment? The judiciary does not seem to be very sensitive. Even in rape cases, which is the ultimate form of exploitation, the court does not seem to be sensitive enough. And so too with trafficking. Most of the cases have gone in favour of the accused. This could be due to lack of proper evidence. But what the court has to consider is the fact that why should the victim bring in a third party when she herself is making the statement. What is also lacking is provision for in – camera courts. Confidential trial should be given consideration. Also, judges and lawyers seem to enjoy ‘listening’ to the story of such cases rather than giving a proper judicial ‘hearing’ In case of sexual harassment at workplace, who must be punished then – the individual or the organization? This must be looked at in two ways. First, it is the responsibility of the organization to provide proper working environment. Secondly, the individual can be made liable for punishment if he is involved in any kind of sexual abuse. The organization too should be made liable if it fails to take action against the accused or makes no effort to see that the accused is brought to book. Because that means the organization itself is trying to protect the perpetrator, and hiding facts. The Hyatt Regency has placed the issue of sexual harassment under the definition of misconduct and has stated that such an act is liable for punishment. This is the first instance of a company in Nepal placing such a clause within its policy framework. Once a case of sexual harassment has been filed, which would be the best way of going about it – court hearing or arbitration? You cannot consider a case of sexual harassment only from the perspective of arbitration, conciliation or intermediation. Because it is also a question of the victim’s dignity. In some instances, criminal act may be involved. Regarding the proposal to take it as a departmental action by organizing a committee, the management has the right to initiate action against the wrongdoer which could be in the form of warning, suspension or job termination. And if the victim is not satisfied with the decision, she should be allowed to appeal in court. What also happens in certain cases is that the management itself is involved, or it could be biased, or the owner himself could be involved. Such situations should be kept in mind before deciding on the best way to take it up. In order to maintain privacy of the victim and confidentiality of the case, in-camera trials can be held in the court.

"Stronger union means lower sexual harassment"
Sector-wise, carpet sector is known to have a number of cases of harassment. We also found tea estates having that kind of environment at one time – but not any more. Harassment is basically common in sectors which employ more women. Is the number of harassment cases increasing or decreasing over the time? According to our recent survey, it has not increased. We hear more of these cases now than in the past because the type of cases that used to go unreported in the past are now being reported. A reason could be the formation of unions at work- places, which makes it easier for women to relate their cases to female union members.	Binda Pandey, Trade Unionist
How was the survey conducted? We developed a questionnaire which we dispatched to various union bodies. The form contained objective questions including ones regarding specifications of sexual harassment. The unions were required to recall the number of cases in 2046 BS (1990) and in 2056 (2000). The reason for the survey showing downfall in the number of harassment cases could be the change in the status of unions. Unions have not actually increased in number as opposed to earlier times, but they are now more capable to confront the management with the issues. Also, a co-worker could be responsible for the harassment in the past, but now he is educated by the union and could have now stopped such practice. The society of today is also relatively more open and thus the women are now able to present their cases more openly. Have you framed any suggestion to help the victims of sexual harassment? Any case of sexual harassment should be taken up by the union very seriously. There are instances where, owing to the union being male-dominated, women are unable to state their cases openly. Unions should create an environment, which is conducive for the victims to report the cases. Secondly, the management should also take up the issues seriously. A code of conduct can be formulated in this respect. Thirdly, the government should review labour and other employment related laws to ensure that action is taken against the perpetrator and the victim is duly compensated.

Harassment to Female Workers
(No of respondents)

Source: GEFONT, 1999

Not a Normal Behaviour

By Sheela Manandhar

Sexual harassment has emerged as a burning issue at workplace which is taken seriously by all organizations all over the world. While there are laws in many countries which prohibit sexual discrimination (and sexual harassment constitutes sex discrimination), still there is very little practical help available in the market for people, whether they be managers, recipients, co-workers or students, to enable them to tackle the problem. It is because serious understanding is still lacking.

What is Sexual Harassment?

There are many views on Sexual Harassment. The most widely used definition of sexual harassment is that given by Michael Rubenstein as "unwanted conduct of a sexual nature or conduct based on sex which is offensive to the recipient". Furthermore, European Commission’s Code of Practice adds, "It is for each individual to determine what behaviour is acceptable to them and what they regard as offensive. It is the unwanted nature of the conduct which distinguishes sexual harassment from friendly behaviour, which is welcome and mutual". Hence sexual harassment is quite different from romantic relationships that are consensual. As it is imposed on the recipient, sexual harassment is neither "romantic" nor "sexy". There are, however, gender differences here. Behaviours that would be seen by most women as offensive are often not seen as such by men.

Sexual harassment could be intentional or unintentional and direct and indirect. But whatever the type may be, all kinds of activities which come under sexual harassment are offensive and unwanted. Depending upon the repetition and severeness, the activities should be complained to responsible person or referred to the Industrial Tribunal or Court. Behaviours reflected as sexual harassment are: wolf whistles, pats, strokes, nudges, cuddles, winks, nods, kisses, repeated requests for dates, sexual innuendoes about clothes, body size, hair, leisure and weekend activities, presents, sexual jokes and double intended remarks.

Usually men are the perpetrators and females are the victims of these activities. Whatever the form and type of sexual harassment, it is a serious problem in the workplace where men and women work together. The actors should not be promoted with comments like "boys will be boys". There should be well established demarcation. Awareness-raising of all staff will ensure that employees know what the term "sexual harassment’ means.

However, discussion about this topic is not a comfortable one. Even the victims don’t want to discuss it. Most people take it as female/feminist issue, and consider it as a waste of time, women-only problem or even no problem at all because "only young and pretty women get sexually harassed" and "Young girls like it anyway". But this not true. It is a serious problem and should be addressed by each level. Ignoring sexual harassment displays "old fashioned patriarchal" attitude to incidents, which will all have a devastating effect on the workplace and work force. Interpersonal relations among opposite sexes will be governed by mistrust and dishonesty. Productivity and efficiency will drop. The result of mishandling a complaint may even result in a long drawn-out sex discrimination case if it is taken up in earnest.

It is not surprising to find sexual harassment conforming to the power dimension – powers such as individual, institutional and cultural. Organizations conform to male attitudes and suit male ways of working. This is why sexual harassment is very much more of a problem for women as recipients and a way of behaving for men as harasser. But whilst it is a problem for women, it is not women’s issue only, it is one that men and women must tackle together. Sexual harassment is not a part of work life and as such should not be taken as "normal behaviour".

The Sex Discrimination Act (1975) of United Kingdom and the changes that the Equal Employment Opportunities Commission encouraged, supported the female cause and provided a public platform from which women could voice their opinions and ideas. It also raised women’s expectations so that they can seek and demand careers with professional and managerial responsibilities. The 1960s and 70s were years in which there was a growing general awareness of workplace rights and employer responsibilities, especially in the area of women’s right. In this field the works of trade unions were remarkable. In the early 1980’s many forward-looking unions began to address the issue and published pamphlets and brochures to bring the problem into the open. They even carried a resolution on sexual harassment, recognizing it as a form of sexual discrimination which could damage a woman’s morale, job security and prospects at work.. Whilst at one level women and unions were challenging companies, the organizations and the education establishments were making efforts to deal with it effectively. Managers became more aware that sexual harassment had major implications on productivity, efficiency and staff turnover. Employers realized that sexual harassment could have a detrimental effect on the performance of everyone in the workplace. Due to its effect on production levels, employers began to look more closely at their equal opportunity policies and in particular, the inclusion in it of a section on sexual harassment.

Since the 1990s more and more organizations are coming to realize that they need sexual harassment policies and grievance procedures in order to protect their workers and cover themselves. As more and more women are entering the world of work, the problem of sexual harassment should be resolved if the organizations are not to lose their efficient and capable women workers.

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