Sexual harassment in the workplace: High time to address labour laws

Originally appeared on the Morning

By Akhila Randeniya and Chantal Dassanayake

In light of the economic crisis, increasing the female labour force participation is one way to unlock growth potential. We witnessed during the pandemic how economic conditions necessitated women to pursue additional means of income, from engaging in sex work to migrating in droves to engage in low-skilled labor.

There exist a multitude of reasons that prevent women from entering the workforce; the dual burden of care work and employment, harassment while travelling, and labour laws that discriminate based on gender are a few. Yet sexual harassment is something that is rarely discussed – let’s have the uncomfortable conversation that is usually brushed under the rug.

Multiple surveys highlight that a majority of women face sexual harassment in their workplaces, which could lead to a loss of working days, resulting in companies making massive losses. A survey conducted by International Finance Corporation (IFC) on nine Sri Lankan businesses show that almost 68% of the women who participated in the survey have experienced some form of workplace violence or harassment.

In addition, a survey conducted among garment factory workers highlights that almost 80% of women faced workplace harassment. A questionnaire administered by the International Labour Organization (ILO) in 2016 among 500 women, the majority of whom were unemployed, discovered that three-fifths of women would be willing to work if they were assured that they would not be vulnerable to sexual harassment in the workplace.

The survey conducted by the IFC on nine Sri Lankan companies stated that workplace violence and harassment towards men and women led to a loss of six working days each, resulting in a loss of $ 1.7 million in work hours. Given the present status of the economy, Sri Lankan businesses can no longer ignore this issue that disproportionately affects women.

Protections currently available to women

Unfortunately, sexual harassment in the workplace is not addressed under the existing labour laws in Sri Lanka. Several statutes do cover the offence indirectly, yet it seems to be insufficient as the cases only increase. The matter can be addressed either through criminal law or civil law proceedings in Sri Lanka.

Sexual harassment is criminalised under Section 345 of the Penal Code (Amendment) Act No.22 1995. It explains sexual harassment in the workplace to be words or actions used by a person in authority. The Penal Code requires victims to report cases of sexual harassment to the Police by way of a complaint. Such complaints are potentially followed by lengthy court proceedings, which require a high burden of proof.

It is estimated that the average time taken to conclude a High Court proceeding to be 10.2 years from the date of the crime. Untimely and lengthy procedures have been said to cause under-reporting of crimes, which suggests that realistically, the number of incidents could be worse than imagined. Hence why this is something that needs to be changed.

Addressing sexual harassment via criminal law alone is ineffective as the burden of proof is largely on the complainant. This is where civil law comes into play.

The Industrial Disputes Act No.43 of 1950 (IDA) allows for the private sector to take up cases of sexual harassment through civil law. The act provides swifter mechanisms to resolve work-related disputes which do not involve the Police and court proceedings. Under this act, work-related disputes can be expansively interpreted to include sexual harassment in the workplace, thereby allowing victims to seek justice.

Workers in the public sector have several avenues of redress when experiencing sexual harassment in the workplace. The courts have attempted to combat sexual harassment in the public sector in limited circumstances.

Pelaketiya v. Gunasekera ruled that sexual harassment within the public sector was a violation of the fundamental right to equality. Republic of Sri Lanka v. Abdul Rashak Kuthubdeen criminalised the demand of sexual activity as a bribe in exchange for public service.

Policy recommendations

The move to introduce a new bill criminalising sexual assault and all other forms of harassment by the Minister of Justice late last year was a commendable step, but the existence of laws was never the issue. It is the incredibly complicated and gendered mechanisms for reporting and redressing any sort of complaint that need to be changed.

On the other hand, slapping on a criminal offence rarely seems to prevent a social wrong. Perhaps rehabilitation and educating perpetrators and society to shift the narrative from blaming women should be considered.

While legal barriers do exist, the root of all this evil can be boiled down to power structures that allow perpetrators to continue their behaviour in the workplace. Clear and coherent communication channels need to be established for victims to voice out their truth.

Limiting this to the workplace however is not enough. Conversations on harassment cannot exist in the vacuum of the workplace. Women face it in all avenues of life, from walking home at night to worrying about taking public transport.

If we want the women of our country to take part in the workforce, the least we can do is ensure that they are protected while working. The current legislation is clearly insufficient to provide any form of protection that is meaningful.

It is imperative that the existing labour law regimes are improved upon to include avenues of complaint and timely resolution of such complaints. A unified system needs to be implemented so that victims from both private and public sectors can enjoy equal protection.

The opinions expressed are the author’s own views. They may not necessarily reflect the views of the Advocata Institute or anyone affiliated with the institute.