13 MIN READ
Following the #metoo and #timesup movement in the last few years, it has been heartening to see so many women speak up about sexual harassment, especially in Nepal.
As women speak up, they assert their power by narrating their personal stories, and although this may not always end up bringing the perpetrator to justice, it can provide other women with support in feeling that they are not alone, and also gives them the courage to speak up about themselves. Such conversations around notions of consent, bodily autonomy, gender stereotypes, social and legal structures, and the nuances of what constitutes sexual harassment, abuse, and assault are often uncomfortable, but necessary.
However, sexual harassment at the workplace continues. Aggrieved persons continue to walk in the shadows while perpetrators roam at large in public. Employers continue to ignore instances of harassment and abuse while workplaces continue to operate without a sexual harassment policy.
In this article, I would like to talk about sexual harassment at the workplace and the different pieces of legislation that address it, especially the Sexual Harassment Prevention at Workplace Act 2015. I will describe how the Act works, its shortcomings, and discuss the need to think beyond legislation.
What are the different laws that address sexual harassment in the workplace?
Sexual harassment is covered under some general laws, such as the 2017 Criminal Code, Some Public Offences and Punishment Act 1970, and the Electronic Transaction Act 2004. Protection from sexual violence and/or exploitation is also enshrined in the Constitution as a fundamental right.
The Public Offences Act has largely been replaced by the Criminal (Penal) Code, which prohibits sexual harassment in several instances. Section 224 explicitly prohibits sexual harassment and institutes a penalty of a maximum jail term of three years and a maximum fine of Rs 30,000.
With specific regard to the workplace, Section 233 of the Code prohibits sexual relations with persons in office or those seeking professional services, both in public or private office. The section reads:
“No employee serving in a government office or private office or person providing any professional service or commercial work shall have, or aid another person to have, sexual intercourse with a person serving in such office or a person making contact or being in contact for such service or work, while performing functions of such office or providing such service or at the place where such service is provided.”
Since the Criminal Code accounts for sexual harassment in general, it is important to note that the definition is problematic since it does not recognize harassment between husband and wife. This is a cause of concern, especially amidst growing rates of domestic violence during the pandemic.
Such general laws may also be attracted when there are extraneous circumstances, like assault or battery, or a case involving electronic mediums may attract the Electronic Transaction Act (ETA). In the absence of specific laws to address harassment and abuse on social media or digital mediums, the loosely worded Section 47 of the ETA, which prohibits the publication or display of “illegal material”, has often been used to prosecute harassment on or through social media.
Sexual harassment at the workplace is specifically addressed by the Sexual Harassment at the Workplace (Prevention) Act, promulgated in 2015. The Act explicitly prohibits sexual harassment at the workplace, which is defined to include government bodies, corporate bodies, firms, bodies registered in accordance with prevailing laws, and also extends to places used during the performance of work. To elaborate, this would cover field visits and office retreats, i.e. places where the persons would not have been, if not for work. In the context of evolving workspaces and the recent trend of working from home, it may be even more challenging to define workspaces.
What constitutes sexual harassment?
Section 224 of the Criminal Code defines sexual harassment as such:
“A person shall be considered to commit sexual harassment if the person holds or touches or attempts to touch any sensitive organ of, or opens or attempts to open undergarments of, or obstructs or hinders in any way the wearing or removing of undergarments of, or takes to any lonely place in an unusual manner, or gets his or her sexual organ to be touched or held by, or uses vulgar or similar other words, spoken or written or by gesture or by way of electronic medium, or shows any pornography to, or teases or annoys with sexual motive, or behaves in an unusual, undesirable or indecent manner with, a person who is not his wife or her husband, without her or his consent, with the motive of having sexual intercourse with her or him.”
Similarly, Section 4 of the Sexual Harassment at the Workplace (Prevention) Act defines sexual harassment as “any act, committed by a person in abuse of its position, power or right, by imposing coercion, undue influence or enticement, such as physical contact and/ or advances or attempts to make such contact/ advances, showing of pornographic material, demand or propose sexual favours and flirting or harassing with sexual motive.”
To expand on this definition, harassment also includes staring or leering at a person or parts of their body in a sexually suggestive matter; expressing sexual intent by way of written, verbal, or non-verbal means; making suggestive comments about appearance, lifestyle, sexual orientation; offensive phone calls, messages, insults of a sexual nature as well as lewd jokes, conversations, or innuendo. Inappropriate advances on social networking sites; demands, requests, proposals for unwanted dates or sexual favors can also constitute sexual harassment.
To clarify, the term ‘sexual abuse’ is generally employed when it concerns sexual mistreatment of minors below the age of 18. ‘Sexual assault’ involves an element of physical contact, while ‘sexual harassment’ can occur with or without physical contact.
Who can complain?
Any employee or consumer of services can complain of sexual harassment under the Act. This means that even people availing of services in an establishment, such as a bank, hotel, or restaurant, can complain of sexual harassment while availing of such services. If the concerned person is a minor, of unsound mind or incapacitated in any way, any other person can file a complaint on their behalf.
In order to ensure that complainants are not unfairly treated, Section 9 of the Act affords certain protections, such as mandating that departmental action shall not be taken against the complainant and that the complainant shall not be removed from office. Furthermore, the complainant has the right to file an appeal to the competent authority — in this case, the Chief District Officer — against any decision taken by the workplace, and also ask for security protection.
What is the complaint mechanism?
There are two complaint mechanisms recognized within the Act. In the internal complaint mechanism, the complaint about any sexual harassment at the workplace has to be made within the organization, i.e., to the employer within 15 days. The employer then has the obligation to resolve such complaints within 15 days of receiving the complaint.
If the complainant is not satisfied with the outcome of the internal mechanism, they can resort to the external complaint mechanism, which entails approaching the Chief District Officer within 70 days of the internal decision. Complainants also have the choice of directly approaching the Chief District Officer within 90 days of the harassment incident.
What are the employer’s obligations?
The employer has a number of obligations under the Act, but the primary is to ensure that there are sexual harassment prevention rules at the workplace. The employer also has the responsibility of disseminating information to create awareness on such issues and the implications of any such instances.
The employer should ensure that there is a Complaint Box at the workplace, and in case of complaints, make necessary arrangements to prevent recurrence. Once a complaint has been made, and an internal investigation has revealed that sexual harassment did occur, there are a number of remedies that the employer may avail of, depending on the gravity of the offense. For minor complaints, the employer may require the perpetrator to apologize to the aggrieved person, issue a warning or initiate departmental action. In more severe cases, the employer has the right to terminate the perpetrator from employment and also report them to the concerned authorities in case of reprisal/retaliation in response to the inquiry.
Incidents of harassment are traumatic and have multiple layers of physical, mental, social, and emotional turmoil. In recognition of this, Section 5(1)(d) of the Act requires employers to provide the necessary psychological treatment, such as counseling.
What is the punishment for perpetrators?
While the Criminal Code provides a maximum three-year jail term and a maximum fine of Rs 30,000, the Sexual Harassment in the Workplace (Prevention) Act mandates imprisonment up to six months and/or a fine of up to Rs 50,000, depending on the nature of the offense. Any employer who does not comply with the Act’s obligations may also be fined up to Rs 25,000.
Thinking beyond the Act
While it is commendable that Nepal has a piece of legislation that directly addresses sexual harassment in the workplace, without the enactment of corresponding regulations to support the Act, it lacks ‘teeth’, especially in terms of implementation and reporting.
Nepal has not yet ratified the ILO Convention on Violence and Harassment 2019 (No. 190). Ratifying this convention will be an important step towards adhering to its international commitments against gender-based violence and also towards enabling women to access labor markets without harassment. Ratifying the convention will legally bind Nepal to implement its requirements, such as establishing and strengthening monitoring mechanisms, inspection and investigation of cases, bringing the informal sector under legislation, and incorporating gender sensitivity into government policies.
In this regard, the Sexual Harassment at the Workplace (Prevention) Act is notably gender-neutral. While this does acknowledge that men can also be victims of harassment, it is worth looking into whether women and other vulnerable groups require special protection in the workplace.
On a societal level, employers and institutions themselves need to step up and act beyond the obligations contained in the Act and declare their workplaces as safe spaces for both men and women. As one illustration, Photo Kathmandu, a biannual photography festival, instituted a Code of Conduct in 2018 to ensure a safe space for all those attending the festival. Another institution that has publicly enacted a Sexual Harassment Prevention Policy is The Kathmandu Post. This shows institutional commitment towards creating a safe space and preventing harassment.
Employers and institutions also need to take complaints seriously when they arise. Sweeping such complaints under the carpet, not taking any action against the accused or reappointing accused persons to posts shows a complete disregard for the rights of the aggrieved person and their lack of commitment to fostering a safe working space. Tribhuvan University’s inaction against Professor Krishna Bhattachan shows the complacency of the oldest university in Nepal and its academic community. Moreover, the appointment of Yuvaraj Adhikari as chairperson of Nepal Airlines also shows a flagrant disregard for the harassment complaints against him.
Any proceedings that take place after a complaint has been lodged need to be based on due process, transparent, and genuine. A sham of a process such as that followed by Tribhuvan University is akin to no process at all. Several allegations made by students in 2011, resulted in the process ending in forced apologies and settlements. This shows the lack of commitment to understanding basic notions of rights, respect, and purported justice mechanisms. Accused persons also tend to resort to nonsensical claims in their defense or filing defamation cases.
The Act provides that complaints have to be made to the employer. As per international practices, an independent panel in the form of a ‘complaints committee’ must be set up so that there is no conflict of interest. This panel will report its findings to the employer. The constitution of this panel is critical to the quality of justice it is able to dispense. It is important that committee members are truly independent, have no conflicts of interest, and understand basic notions of consent and what constitutes harassment.
Although the Act provides for a ‘complaints box’, it does not have any specific provisions for anonymous complaints. To this end, employers need to ensure that the identity of complainants is protected if they so desire.
Another important question is whether the Chief District Officer is the appropriate authority to handle such complaints. Whether CDOs understand the gravity of the situation and whether they are more likely to recommend settlements is something that needs to be further investigated.
While it may be the aim of the Act to provide speedy justice, it is also worth considering whether the timeline of 15 days given to raise a complaint and deal with it is practical.
Furthermore, key definitions, such as ‘harassment’ and ‘workplace’, need to be interpreted liberally, keeping in mind the technological advancements that are affecting the way we work. The Act also needs to do away with words such as ‘victim’ and employ more appropriate terminology such as ‘aggrieved person’ or ‘survivor’.
Lastly, we need to reflect on the involvement and reintegration of persons who have proved to be offenders to public and private office. What is the optimum time for punishment and rehabilitation? How and when do we reintegrate them into society? These are questions that every organization and society at large needs to reflect upon.
The work and statement put out by One World Theatre are exemplary in this respect. In 2019, complaints were made by women against a fellow actor, Rajkumar Pudasaini, about his unprofessional behavior. He was subsequently removed from his position as co-artistic director and placed on probation for a year. During this time, there were several mediated exchanges between the two parties and a genuine rehabilitation effort on part of the theatre company.
More recently, when his involvement in the play ‘Stop Kiss’ came to light, many raised objections. The theatre company, recognizing that the process of rehabilitation ought to have been more public, withdrew his casting. It is thus important for such mediation processes to be transparent, public, and fair.
Looking broadly at most instances of sexual harassment in the workplace that have emerged in the course of the #metoo movement in Nepal, none of the perpetrators have faced any legal punishment. Only a few have faced professional consequences. This is an extension of Nepal’s culture of impunity and the patriarchy where the plight of women is ignored because it is convenient to do so.
So it is not enough to have a law that aims to prevent and eliminate sexual harassment. Complaints that have been raised need to be taken seriously so as to create a safe and respectable environment. It is important we have conversations about sexual harassment and its effect on the aggrieved. Employers and employees both need to work towards creating safer workspaces that are free of violence and harassment, by making sure that policies for the prevention of sexual harassment are in place, and that all employees understand what constitutes harassment and its consequences.
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