This Act superseded the Vishakha guidelines laid down by the Supreme Court of India. Before the institution of this Act, a woman facing harassment at the workplace had to lodge a complaint under Section 354 and/or Section 509 of the Indian Penal Code, which dealt with, respectively, assault or use of criminal force with the intent to outrage the modesty of a woman and words, gestures, or acts to outrage the modesty of a woman. This act is important because it obligates the employer to provide an environment free of sexual harassment. This is in contrast to the pre-Vishakha guidelines era during which the female employee would have to lodge complaints with the police authorities. Such obligation is a part of the company’s legal compliance and non-compliance triggers significant penalties. The Act defines various terms like ‘sexual harassment,’ ‘aggrieved woman,’ ‘workplace’ etc., which clarify actions covered under the Act. The Act broadly interprets these terms and efforts have been made to cover as many facets of employment as possible. Significantly, the term workplace has been expanded to include remote and telecommuting work. The Act also includes guidelines regarding the filing of complaints, the formation of the inquiry committee, and the process of conducting inquiries. Lastly, the Act also provides safeguards against malicious complaints.
Women and Justice: Keywords
Legislation
Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Act (2013)
Labour Code, Section 247.1 (1985)
The Code only relates to industries over which the federal government has jurisdiction and not those governed by provincial statutes. The Code defines sexual harassment and states that every employee is entitled to employment free of sexual harassment. The Code puts responsibility on employers to make “every reasonable effort” to ensure that no employee is subject to sexual harassment. As part of this responsibility, an employer must issue a policy statement on sexual harassment and the Code prescribes certain mandatory contents for the statement.
The Act of Gender Equality in Employment (the “AGEE”) was enacted to protect gender equality in the workplace and promote the spirit of gender equality as enshrined in Article 7 of the Constitution. Chapter II of the AGEE provides that employers shall not discriminate against employees because of their gender or sexual orientation when hiring, evaluating, promoting, providing education, training and welfare, paying wages and in the case of retirement, discharge, severance and termination. Employers must also implement measures for preventing and correcting sexual harassment and establish complaint procedures and disciplinary measures. Employers who are found to be in violation of the AGEE may be fined between N.T. $20,000 and $1,500,000, depending on the offence. The names and titles of offenders and their supervisors will also be put on public notice and they will have to make improvements within a specified period. Failure to do so will result in further punishment.
性別工作平等法（即「AGEE」）的制定是為了保護職場的性別平等，促進憲法第7條規定的性別平等精神。性別工作平等法第二章規定，雇主在雇用、評估、晉升、提供教育、培訓和福利、支付工資以及在退休、解雇、遣散和終止契約時，不得因員工的性別或性取向而歧視他們。雇主還必須實施防止和矯正性騷擾的措施，並建立投訴程序和懲戒措施。雇主違反性別工作平等法將被處以新台幣20,000至1,500,000元之罰鍰，具體數額則視情況而定。違反規定者及其主管的姓名和職稱將被公告，且其必須於指定期間內進行改善，否則將導致進一步的處罰。
Domestic Case Law
McCauley v. Club Resort Holdings Pty Ltd. Queensland Civil and Administrative Tribunal (2013)
The complainant worked at the Club Resort Holdings Pty Ltd., the respondent. She was working in a cold larder preparing food when a colleague sexually harassed her. The complainant sought an investigation by their employer. The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work. Ultimately, she resigned. The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts. The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment.
Brown v. Moore Supreme Court of Queensland (1996)
The respondent was a married aboriginal woman employed at the The Black Community Housing Service as a bookkeeper since 1985 and later as an Administrator until her resignation in August 1992. The first appellant became the director of the Housing Service in December 1990, and the second appellant was the employer, The Black Community Housing Service. The respondent started receiving calls from the appellant where he expressed his love to her and made inappropriate sexual remarks. The appellant also made inappropriate sexual remarks to the respondent when attending meetings together, on other occasions he gifted her “sexually explicit figurines,” and “touched her sexually suggestively on numbers of occasions.” The respondent did not confront the appellant in fear of losing her job, but she did complain to the board of directors who took no action against the appellant. Respondent filed a complaint against the appellant on the basis of sexual harassment and discrimination, and ultimately resigned when the board of directors would not remove appellant from his position while the investigation was underway. The Anti-Discrimination Tribunal found the claims of the respondent to be true. The Tribunal also learned that the employer did not have any policies on discrimination or sexual harassment, nor provided its employees with a training regarding the same. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the employer and the appellant pay the respondent compensation for damages caused by the discrimination and sexual harassment. The first appellant filed this appeal stating that the Tribunal had no evidence that the respondent suffered any hurt and/or humiliation, nor that the respondent’s resignation was due to the behaviour of the appellant. The first appellant also objected on the compensation amount being “excessive in the circumstances.” The second appellant appealed, stating that the employer was not vicariously liable for the acts of the first appellant. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.
Mount Isa Mines, Ltd. v. Hopper Supreme Court of Queensland (1998)
The respondent was employed as an apprentice by the first appellant, the second appellant was her supervisor, and the third, fourth, and fifth appellants were her co-apprentices. Over the course of the respondent’s employment with the first appellant, she was subject to unlawful discrimination and sexual harassment by the third, fourth, and fifth appellants (among others). The complaint by the respondent included her receiving sexual comments and unequal treatment by her superiors and co-workers because she was a female, and many of her peers told her that she was not fit for her job because she was a female. Examples of these acts were a display of pictures and posters of half-dressed women in various parts of the workplace, addressing the respondent in the presence of others at a training with inappropriate comments, not giving the respondent the same work opportunities as her male peers, and providing her with unfavourable report cards that included clear comments against her as a female. The Anti-Discrimination Tribunal in the first instance found that the first appellant was negligent in providing the proper training to its employees on anti-discrimination and sexual harassment at the work place, subsequently allowing the other appellants to act in a discriminatory way towards the respondent because of her gender. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the appellants to pay the respondent compensation for damages caused by discrimination and sexual harassment. The appellants’ filed this appeal objecting to the Tribunal’s findings. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.
Bazemore v. Performance Food Group, Inc. Court of Appeals of Tennessee at Knoxville (2015)
The plaintiff was employed by the defendant as a sales manager. Another sales manager in her office sexually harassed her verbally and physically. He repeatedly made sexually explicit comments towards her and grabbed her buttocks on one occasion. The plaintiff sued in the Hamilton County Circuit Court, alleging sexual harassment and constructive discharge in violation of the Tennessee Human Rights Act (“THRA”). The Circuit Court granted summary judgment in favor of her employer, and the Court of Appeals of Tennessee affirmed, finding that the employer took reasonable steps to prevent sexual harassment.
EEOC v. New Breed Logistics United States Court of Appeals for the Sixth Circuit (2015)
The plaintiff-appellant, the Equal Employment Opportunity Commission, initiated sexual harassment and retaliation claims under Title VII against New Breed Logistics, the defendant, on behalf of three employees. The plaintiff alleged that Calhoun, a supervisor at New Breed sexually harassed three female employees and then retaliated against the women after they complained. The plaintiff further alleged that Calhoun retaliated against a male employee who verbally objected to Calhoun’s harassment of the women. The evidence presented to the district court that showed that each woman communicated her intent to complain about Calhoun’s sexual harassment shortly after which all three women were fired or transferred. One of the women lodged a complaint through the company’s complaint line but the company asked Calhoun five questions about his conduct and determined there was no misconduct. A jury found the defendant liable under Title VII for Calhoun’s sexual harassment and retaliation, and the district court denied the defendant’s post-trial motions for a new trial and judgment as a matter of law. The district court determined that complaints to management and informal protests were protected activities under Title VII. Therefore, the three employees’ demand that Calhoun stop harassing them were considered protected activity under Title VII, and retaliation constituted a violation of Title VII. The defendant appealed, challenging the district court’s denial of its post-trial motions. The Second Circuit affirmed the district court’s decisions, finding that sufficient evidence supported the district court’s rulings and that the district court did not abuse its discretion when providing instructions to the jury.
Ault v. Oberlin College United States Court of Appeals for the Sixth Circuit (2015)
The plaintiff-appellants, three female dining services department employees, sued Oberlin College, the defendant alleging that they suffered various acts of sexual harassment at the hands of the executive chef of the private contractor, Bon Appetit, that operated the dining facilities. The plaintiffs brought this suit under Chapter 4112 of the Ohio Revised Code, which prohibits sexual harassment in the work place and holds employers responsible for sexual harassment committed by employees or nonemployees in the work place, where the employer knows or should have known but fails to intervene. The plaintiffs initially sued in state court, and the defendants removed. The district court granted summary judgment in favor of the defendants, and the Sixth Circuit affirmed on all but one count. The court held that, with respect to one of the plaintiffs but not the other two, there was a genuine issue of material fact as to whether the conduct the employee endured was sufficiently severe or pervasive enough to affect the terms, conditions, or privileges of employment.
Sentenza n. 937/2017 La Corte d'Appello di Torino: Sezione Lavoro (Court of Appeal of Turin: Labor Section) (2017)
The Court of Appeal of Turin upheld the lower court’s judgment deeming a clause of a collective agreement negotiated at the enterprise level to be discriminatory because it infringed on Articles 3 and 37 of the Constitution, Article 25, para 2bis, of Decree No. 198/2006 and Article 3 of Decree No. 151/2001. Under the relevant clause the “real presence at work” was as an eligibility criterion to receive an additional remuneration, it being understood that any family-related leave, including any compulsory maternity leave, parental leave, and/or leave for illness, could affect the employees’ level of performance in that respect. The Court maintained that even though the criterion was formally neutral, it resulted in an indirect pay discrimination since female workers usually take more family-related leave than male workers. Moreover, during the trial, the company failed to provide a permissible justification regarding the requirement of “real presence at work.” Therefore, the employer was ordered to (1) cease the discrimination by computing leave as actual time worked for the purposes of achieving the real presence requirement and becoming eligible for the additional remuneration, (2) to pay the additional remuneration incentive to the plaintiffs, and (3) to enhance a plan to remove the discrimination by avoiding the inclusion of the above criterion in any future collective bargaining at the enterprise level. The latter was promoted by the intervention of the Regional Equality Adviser as a case of collective discrimination.
La Corte d’Appello di Torino ha confermato la sentenza del Tribunale di primo grado che considerava discriminatoria una clausola di un contratto collettivo negoziato a livello di impresa in quanto contraria agli articoli 3 e 37 della Costituzione, all’articolo 25, paragrafo 2 bis, del decreto n. 198/2006 e all’articolo 3 del decreto n. 151/2001. Ai sensi della clausola rilevane, l’“effettiva presenza in servizio” era un criterio di ammissibilità per ricevere una retribuzione aggiuntiva, fermo restando che qualsiasi congedo per motivi familiari, compresi i congedi di maternità obbligatori e i congedi parentali e/o congedi per malattia, avrebbero potuto influire sul livello di prestazioni dei dipendenti a tale riguardo. La Corte ha sostenuto che, pur essendo la clausola formalmente neutrale, il criterio comportava una discriminazione retributiva indiretta, in quanto le lavoratrici prendono generalmente un numero di congedi familiari superiore a quello dei lavoratori di sesso maschile. Inoltre, durante il processo, l’azienda non aveva fornito una giustificazione ammissibile per quanto riguarda il requisito dell’“effettiva presenza in servizio”. Pertanto, al datore di lavoro è stato ordinato di (1) cessare la discriminazione calcolando il congedo come tempo effettivo di lavoro ai fini del raggiungimento del requisito di presenza effettiva in servizio e quindi di poter essere ammessi al percepimento della remunerazione aggiuntiva, (2) versare l’incentivo retributivo supplementare ai ricorrenti, e (3) implementare un piano per rimuovere le discriminazioni evitando l’inclusione della clausola di cui sopra in qualsiasi futura contrattazione collettiva a livello di impresa. Quest’ultimo obiettivo è stato promosso dall’intervento del Consigliere regionale di Parità al fine di far cassare un caso di discriminazione collettiva.
P.O. v. Board of Trustees, A.F., et al. Industrial Court at Nairobi (2014)
The claimant accompanied one of respondents, a co-worker “J.”, on a work-related trip. Throughout the business trip, J. made sexual innuendos towards the claimant and when his advances failed, he physically beat her. He booked a single hotel room, while the claimant believed she would have her own room. As a result, the claimant was forced to sleep on the floor and returned to Kenya two days later, while J. continued to the conference. Upon the claimant’s return, she received multiple threatening emails from J. and her employment was terminated as of May 24, 2010 for alleged “misconduct” for not travelling to the conference. Her salary for May was unpaid. Although there were numerous legal issues decided in this case, including jurisdiction, the key issue was whether the claimant was subjected to gender-based discrimination and thus unlawfully terminated, and what, if any, entitlement is due to her. The Industrial Court determined that J.’s conduct toward the claimant, no matter where it had occurred, clearly amounted to gender-based violence against an employee, and that his conduct “had the effect of nullifying or impairing the equality of opportunity or treatment in employment, based on her sex.” The Industrial Court awarded P total compensation of Kshs 3,240,000, which included general damages for sexual harassment, and unfair and wrongful termination of Kshs 3,000,000. This case is important to demonstrate Kenyan courts afford protection against sexual violence in multiple ways, including equal opportunity and human rights legislation, labor legislation, civil remedies and criminal law. In addition to Kenyan employment law, the Industrial Court also relied on the 1993 UN Declaration on the Elimination of Violence against Women, the International Labour Organization, as well as other forms of jurisprudence to support eradicating violence and sexual discrimination against women in the workplace. The decision noted that while the Constitution of Kenya was not yet in effect and thus not directly applicable when the case was tried, Articles 1, 3 and 5 of the 1948 UN Universal Declaration of Human Rights were included in the Kenyan Constitution and thus were applicable at the time the case occurred.