Contextualising sexual harassment
Legal framework against workplace sexual harassment
Despite overwhelming attention in the media and the legal arena, sexual harassment in workplaces remains a significant challenge in Bangladesh. This includes:
- unwanted flirting;
- sexual assaults;
- threats; and
- other forms of control and coercion.
A 2019 survey conducted by Karmojibi Nari asserted that 12.4% of ready-made garment workers have reported sexual harassment in the workplace. However, the complaints of sexual harassment are rarely heard by the courts. Such numbers do not represent the true situation, as most cases remain unreported due to the fear of public shaming, humiliation and job loss. This article looks at the impending legal mechanism and the obligations of employers to address sexual harassment in the workplace.
The Constitution ensures protection of female citizens through multiple articles, including equal protection of law, non-discrimination, and equal opportunity, along with other fundamental rights. These articles clearly oblige every employer to ensure equal rights of their female employees. Thus, employers must maintain an effective mechanism to prevent or deter the commission of sexual abuse and harassment. This includes providing an effective grievance mechanism alongside ensuring access to all possible legal and institutional support.
Contextualising sexual harassment
Despite the fact that more than half of the female population of Bangladesh have faced sexual violence, the government has not introduced a comprehensive law that fully combats this issue. The Penal Code 1860 (the Code) is the primary law on defining crimes; however, its scope and the penalties that it sets out are more than a century old, with its jurisprudence being inspired mostly by the Victorian concept of morality and womanhood. The Code incorporates crimes of assault, battery and grievous harm in a general context. Section 509 of the Code criminalises any behaviour or gesture, verbal or visual, that intrudes upon the privacy of a woman with the intention to insult her.
However, the provision is vague and the intention to outrage or insult the modesty of any woman is difficult to prove. Further, it does not provide room for incorporating emerging forms of sexual violence. As such, this does not rectify the complex connotation of sexual harassment in Bangladesh. The key penal provision has failed to modernise different contexts of sexual harassment.
In 2008, the Supreme Court addressed sexual harassment in workplaces and educational institutions in the landmark case of Bangladesh National Women Lawyers' Association (BNWLA) v Government of Bangladesh. Its decision in 2009 directed the government to formulate appropriate laws along with other directions to tackle harassment in the workplace and the education sector. However, any such law has not yet been formulated. Nevertheless, this judgment was a turning point for influencing behavioural change against sexual harassment. In 2011, the High Court Division (HCD) modified the 2009 directions to also address sexual harassment in public places.
Legal framework against workplace sexual harassment
Section 332 of the Labour Act 2006 (the Act) provides that no person of any establishment should behave with any employed woman in a way that might be indecent or discourteous or that is repugnant to her modesty or honour. However, the provision is clearly gender insensitive and does not specifically refer to harassment or violence that women face in the workplace. The maximum punishment that the Act sets out is a fine of 25,000 taka ($290).
The Prevention of Women and Children Repression Act 2000 (PWCRA) defines sexual assault as "touching the sexual organ or other organs of a woman or a child" or "indecent gestures", which are punishable by three to 10 years imprisonment and a fine. The PWCRA does not include the use of slang or inappropriate or unexpected words that contribute to offending and undermining victims.
The Code, as mentioned above, addresses indecent gestures both in verbal and visual form, which are punishable by one year imprisonment, a fine or both, but it does not address verbal sexual harassment that involves sexual comments or innuendos about:
- a person's body;
- sexual preferences;
- sexual history;
- anatomy; and
Therefore, if a person is sexually assaulted by way of offensive jokes and unwanted attention, under the existing law, it is almost impossible to offer an "authoritative resolution". Therefore, such incidents mostly remain either unreported or unaddressed.
In absence of adequate laws and rules covering this issue, the Bangladesh Legal Aid and Services Trust decision of 2009 bridged the legal gap of sexual harassment jurisprudence in Bangladesh. It extensively defined sexual harassment by outlining 11 different circumstances that would constitute acts of sexual harassment, including:
- unwanted physical contact;
- coerced sexual relations through abuse of power; and
- unsolicited sexual remarks, advances and gestures made in person, in writing or over the phone.
The decision obliged all institutions to form sexual harassment complaint committee (the committee) which registers and investigates sexual harassment complaints filed by women and takes the appropriate disciplinary action against the perpetrator if allegations are found to be true. Unlike other penal provisions as discussed above, the direction mandates institutional responsibility for preventing sexual harassment and taking disciplinary actions.
Having a specific grievance mechanism is a prerequisite for getting a particular issue addressed by a competent body. The purpose is not only to ensure redress of grievances but also to determine the veracity of allegations as well. In case of sexual harassment, a victim can inform the alleged harasser that the conduct is unwanted and unwelcomed if the situation seems to be safe. Grievance mechanism should be resorted when the perpetrator continues to behave the same after receiving confirmation of discomfort or disapproval from the victim.
If a victim cannot directly approach an alleged harasser, or if the alleged harasser has not discontinued after being informed that such behaviour is unwanted and unwelcomed, the victim can approach one of the designated staff members who is responsible for sexual harassment receiving complaints. The victim may file the complaint separately to the committee, which must comprise at least five members who are a female majority. Further, the committee must have at least two members from outside the organisation, and it is preferable to select the members from organisations that work with gender issues and sexual abuse.
The procedure once a complaint has been filed with the committee is set out below.
Acceptance of complaint
Depending on the gravity of the offence, the committee may take the following decisions:
- dispose of the complaint with the consent of the parties involved in case of no prima facie proof of harassment and report to the employer about the disposal; or
- initiate investigation proceedings and examine the proceedings.
This guideline does not specify exactly what type of complaint can be settled through mutual discussions, which may leave limited scope for perpetrators in high-ranking positions to force the victim to come to an understanding that unburdens the harasser. The victim must be informed that mere administrative findings would not prevent judicial action on the matter and that, irrespective of the primary findings, the option to bring the issue in a court of law would always remain.
Investigation of complaint
The committee have the power to:
- send registered notice by mail to the parties and witnesses;
- conduct a hearing;
- gather evidence; and
- examine all relevant papers.
During investigation, the committee should consider and place emphasis on circumstantial evidence. During and after the investigation, the committee may keep the identity of the complainant(s) confidential. While recording the testimony, the committee should avoid any question and/or behaviour that is:
- humiliating; or
It is a mandatory requirement to record the testimony on video. In addition, if the complainant wishes to withdraw the complaint or stop the investigation, the reason behind this has to be investigated and mentioned in the report. Since an investigation into such allegations is not initiated unless a prima face case is established, it is important to have a uniform rule on interim stagnation of the accused's administrative role at the workplace.
The committee must submit the investigation report with recommendation to the employer within 30 working days. If necessary, the period of 30 days may be extended up to 60 days.
Moreover, if it is proved that a false complaint has been filed intentionally, a report will be submitted to the employer recommending appropriate action for the complainant(s). The committee will make decisions based on the view expressed by the majority of its members.
During the committee's investigation, the management of the employer may temporarily suspend the accused person at its discretion. If the accused is found guilty of sexual harassment, the employer must treat this as misconduct and take proper action according to the disciplinary rules of all workplaces within 30 days and/or refer the matter to the appropriate court or tribunal, if the act complained of constitutes an offence under any penal law.
According to the HCD guidelines, every organisation should have a policy in place to address sexual harassment. This should be a zero-tolerance policy and the alleged victim must be protected. However, considering the nature of the complaint and its implication, the accused must also be given fair chance and should be presumed innocent until a decision has been made.
In this regard, the guidelines are not mere pronouncements, but they stand as equivalent to laws and will be binding for all courts. The guidelines will remain effective until new legislation is enacted. However, there has been no ostensible progress from the legislative end to adapt the guidelines into an act.
Bangladesh does not have adequate legislative frameworks to combat the issues of sexual harassments in the workplace. The Labour Act only provides for an exemplary fine up to 25,000 taka ($290), whereas the Code penalises, albeit ornamentally as it is difficult to fulfil the requirements to prove the intention to insult a woman's modesty. The only effective court-annexed procedure that is available is section 10(a) of the PWCRA, which is still old fashioned in the way that it addresses this issue. The guidelines in the BNWLA decision are, therefore, the most authoritative ones, and, in absence of any other legislative measures, the employers are bound to follow those accordingly.
For further information on this topic please contact Shahrima Tanjin Arni at A.S & Associates by telephone (+880 182 222 2272) or email ([email protected]). The A.S & Associates website can be accessed at www.as-associates.net.