Silence of the workplace
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Once upon a time, facts amounting to sexual harassment did not socially "exist", let alone constitute a legal claim. Behaviour such as sexual innuendo, sexually offensive gestures, sexually explicit material, sexual expletives, hostile workplace environments, job-related decisions based on implied requests for sexual favours were, well, just the way things were — it was systemic in nature. These were common life experiences that our mothers, and perhaps their mothers, and yes, we too, simply "managed". When it did get legally recognised by the landmark Vishaka judgment in 1997, sexual harassment moved from the primitive language of "eve teasing", "outraging modesty", "light-hearted banter" to be framed in terms of a fundamental constitutional right to equality and dignity for women at work.
Vishaka envisaged that women might finally go to work with the legitimate expectation that their workplace would be free of any of the overt or implied sexual harms described above — that women would be accepted as colleagues and equals and not as sex objects in a context of unequal power. And that the responsibility for ensuring that women no longer have to dodge the offensive sexual proclivities of colleagues and bosses would lie with the employer or those in positions of responsibility. Or so it was thought.
Sixteen years later, those projecting themselves as the custodians of such basic and fundamental expectations, be it a Tehelka, the Supreme Court of India or even the state, have barely, if at all, complied with Vishaka. Had they done so, the law intern and the journalist would have entered a workplace that prioritised the prevention of workplace sexual harassment, encouraged its employees or members to speak up about it and cultivated an environment supportive of their claims. They would have been equipped with language that understood sexual harassment as a violation of constitutional equality at work and hailed leadership that promptly condemned sexually inappropriate behaviour (irrespective of the offender's status). As a last resort, they would have had access to a trained, skilled and capable complaints committee, with third party expertise, to hear their complaint empathetically and through an informed lens.
They got none of this.
In the absence of any institutional compliance, both women were subjected to ad hoc responses based on systemic sexist assumptions. Summoned before a panel of judges, seven meetings and three affidavits later, the law intern described the experience as "being looked at with suspicious eyes". Even as she spoke of "three other cases of [sexual harassment] by the same judge", the former chief justice of India, Altamas Kabir, publicly ranged himself in defence of Justice Ganguly: "I don't believe he can commit such an offence". Where have we heard that one before? The same chief justice had, just a year back, publicly supported the Delhi protests against sexual violence. As for the journalist, she made her complaint to the managing editor, a proclaimed feminist, only to find the language of her sexual violation publicly diluted into an "untoward incident", as a covert means to "protect the institution".
Both responses give rise to a fundamental question. What does an institution become when, apart from legal non-compliance, it has to address sexual harassment by not just one of its own, but the powerful "blue-eyed" boys, those institutional darlings who "symbolise" the institution's own apparent values? History hints at a pattern — a US supreme court nominee (Clarence Thomas), former head of the International Monetary Fund (Dominique Strauss-Khan), a corporate honcho (Phaneesh Murthy), the editor-in-chief of Tehelka (Tarun Tejpal ), a retired Supreme Court judge who adamantly clings to his chair at the West Bengal Human Rights Commission (Justice A.K. Ganguly). Each was given an implied licence to abuse power by their own institution — institutions which defaulted in building a culture that prevents harm and then soft-pedalled the degree of harm done in deference to institutional self-preservation.
The most challenging adversary to changing women's experiences of sexual harassment in the workplace is not the actual offender, it's the non-compliant institution. In its failure to educate its own, to inform and stake itself on building a culture intolerant of sexual harassment, such an institution plays the same role as the passive bystander, who fosters hostile sexual environments by simply doing nothing. Two persevering and articulate women, with everything to lose, and little to gain, remind us of one thing — doing nothing, which perpetuates a sexist status quo, need no longer be our systemic truth. It need not be the way things are. That both incidents came to light at all is due solely to the remarkable clarity and confident expression with which each documented her experience of workplace sexual harassment by men in positions of power.
I like to think they are the tip of a generation of working women who reject the culture of victimhood. Unlike our mothers' generation or our own, they will perhaps continue to stake claim over and above what they were subjected to — institutionalised sexism — to what they are entitled to: a constitutionally compliant playing field at work.
For the present, one thing is sure. Unlike their institutional "mentors" or workplace sexual offenders, both women can one day enter the classroom of the next generation and speak candidly about what they did do, not about what they didn't .
- Naina Kapur
The writer, an advocate with Preventive Law and Equality Compliance was lead instructing counsel for the Vishaka directions on workplace sexual harassment before the Supreme Court