Sexual harassment in workplace, a serious issue – Senior Law
Senior Lecturer of Law at the Colombo University A. Sarveswaran says
‘sexual harassment in workplaces’ is a serious issue that needs to be
addressed urgently with effective legal provisions in the country’s
legislature. He says it’s a silent plague crippling institutions and
In an interview with the Sunday Observer Sarveswaran says with more
and more women entering the workforce this will be a major issue to the
country’s economy unless preventive measures are taken to make the
working environment conducive for women.
He says women are vulnerable to sexual harassment at the workplace.
Harassment of the same sex - men to men and women to women - is no more
a rare occurrence in Sri Lankan society today.
“Sending sexually coloured smss and e-mails are the new forms of
“In many instances of sexual harassment the perpetrators don’t
realise they are violating someone else’s rights. The victims suffer
silently not knowing that there is legal redress.”
Senior Lecturer of Law at the Colombo University A.
Excerpts of the interview;
Q: What is meant by sexual harassment in general?
A: When you say sexual harassment the basic meaning is,
unwanted sexual conduct. In 1979, Catharine MacKinnon, an American
feminist and a visiting professor at Harvard Law School, defined sexual
harassment as unwanted imposition of sexual requirement in the context
of a relationship of unequal power.
When you say sexual harassment it involves all forms of physical,
verbal and non-verbal and visual behaviour.
Generally this behaviour includes, pinching, touching, molesting,
kissing , grabbing, winking, using obscene language or words, keeping
offensive posters, drawing sexually coloured pictures, sexual
comments/remarks and displaying pornography.
With the advancement of science and technology another form of sexual
harassment has emerged, for instance sending e-mails or texts with
sexually coloured jokes and uploading of sexual images in the intranet
of organizations. In future, the forms of sexual harassment may change
Q: In buses and on roads, we see people whistling at women and
making personal comments or laughing out loud in offensive ways (eve
teasing). Do these fall under sexual harassment?
A: Yes, all these are different forms of sexual harassment.
Sexual harassment varies from place to place. It could happen in public
transport, educational institutions or even at your own home. It has no
Q: When you say workplaces, at what types of workplaces does
such harassment take place most commonly?
A: In workplaces where women employees are engaged in lower
wage categories as well as where women internal migrant workers are
employed. This could also be witnessed in officers where women
representation in managerial positions is less. When women are in
decision-making positions, the incidents of sexual harassment have
In households mostly, domestic workers are children and mostly women.
They are also subject to different types of sexual harassment. The ILO’s
convention Number 189 speaks of decent work for domestic workers.
Q: Who are more vulnerable to sexual harassment?
A: Mostly women workers but it does not say only women workers
are being sexually harassed. It could be from the same sex. From a man
to another man. But generally in Sri Lanka mostly women are more
vulnerable to sexual harassment in workplaces.
Q: When such incidents take place do victims realise that they
are being subject to sexual harassment?
A: I would say … when it comes to extreme forms of sexual
harassment the perpetrator as well as the victim will know that what is
being done is wrong.
But when it comes to other forms of sexual harassment, sometimes even
perpetrators do not know their actions amount to sexual harassment and
that they are violating the rights of other people. Lack of awareness is
a huge issue.
Q: How often do the victims complain about sexual harassment?
A: The number of complaints is rising. One reason is that the
number of such incidents may have increased.
The second reason is that awareness on sexual harassment is higher.
But, according to my knowledge, still complaints as against the number
of incidents are not satisfactory. The victims are reluctant to make
One reason may be the ‘patriarchal perspectives’ within our society
and also the social stigma. Mostly complaints can be low, because the
victims are unaware of remedies available against sexual harassment, or
that they are being sexually harassed.
In many instances it is the notion that the woman somehow provokes
the treatment that she receives, that prevents her from talking about
her experiences and then avoid formal complaints.
Workplace appraisals is another fear factor why the victims keep away
from complaining. Unfortunately, many workplaces lack complain
mechanisms or grievance handling mechanisms when it comes to sexual
Q: Is this situation unique to Sri Lanka, with regard to
A: No. This is a common trend in countries in our region. But
in the Western World the issue of sexual harassment is a serious offence
and the law has also developed.
Q: In what forms does sexual harassment take place in
A: I could say in two forms. One is the ‘Quid Pro Quo’
harassment. This means seeking sexual favours in exchange for employment
benefits, such as transfers, promotions, basically ‘something for
something’. In other words this is a type of sexual blackmail in
This is generally from superiors to subordinates. It affects the
workplace in two ways. Unqualified people get promotions to important
positions and this affects the performance of the institution.
When the other party rejects sexual proposals, then it creates a
hostile environment. This is mostly among co-workers. It creates an
unbearable and intolerable working environment.
Q: How does it affect the victims?
A: It causes fear, shock, anger and shame. It also affects
their physical and emotional integrity and also psychological integrity.
It deprives the victim the right to work with dignity. It reflects in
their performance, they may not be committed in their work, they will
lose interest, hence the quality of their performance will slump.
Absenteeism becomes common and ultimately the situation may lead to
dismissal or quitting the job.
This involves expenses to the employer as new recruits involve
training and learning.
The loss to the company will be huge.
Hence, taking preventive measures will prevent losses in individual
institutions and to the economic development of the country as a whole.
Sexual harassment also leads to the segregation of the workforce.
Females may prefer to go and work in places where they feel safe. It
will affect the output of an organisation where women representation in
the workforce is high.
Sexual harassment can affect their health and sometimes in worse
situations it can lead to suicides.
Q: What are the preventive measures the employer could take?
A: It is unfortunate that there is no law that casts
obligation on employers to take preventive measures against sexual
harassment. But still the employer could initiate complain committees,
grievance handling mechanisms, create awareness and introduce a code of
conduct. This will be in the interest of the company as well as the
victims and other employees.
Q: What are the legal provisions available in Sri Lanka
against sexual harassment?
A: When it comes to Sri Lanka, we have about 35 legislations,
to deal with labour issues. But unfortunately we don’t have any
legislation which expressly provides for the prevention of sexual
harassment at workplaces.
Under the Penal Code Section 345, sexual harassment is prohibited.
But that provision is not limited only to the workplace. It applies to
all places, wherever it takes place. In addition to that we have the
Anti Ragging legislation to prevent sexual harassment during ragging [an
offence in itself] in educational institutions.
It is only in the Penal Code that sexual harassment has been
identified as a punishable offence. Having a provision in the Penal Code
is not effective to prevent sexual harassment in workplaces. mainly
because this spells out punishment after the crime is committed. It is
not about prevention. When cases are dealt with under the Penal Code it
becomes a criminal case. The standard of a criminal case is high, thus
it makes it difficult to prove.
Generally sexual harassment takes place behind closed doors. It is
difficult to gather evidence to prove the case. The victims too prefer
not to get involved in a criminal case.
My opinion is that we need to amend existing legislation and to cast
some obligation on the part of the employer to prevent this menace.
Q: When employers demand sexual favours, is it a violation of
A: There is an interesting case in Sri Lanka. This was
reported about a decade ago. In a government institution a superior
demanded sex from a woman officer in recommendation of a transfer from
Colombo to Kalutara.
Then the woman officer took the matter to the Bribery Commission.
Finally he was arrested. A case was filed under the Bribery Act. The
issue was whether demanding sex could be considered as a form of
gratification under the Bribery Act.
The Court decided the action fell within the scope of the definition
of gratification. He was convicted.
This is a good example that we could make use of existing legislature
enacted for different purposes, to take action against sexual
Even provisions in the Constitution, Industrial Disputes Act, Trade
Unions Ordinance or Workman’s Compensations Ordinance can be creatively
interpreted to combat sexual harassment at workplaces.
In other countries the law has developed to the extent, that
sometimes the employer can be held liable when it comes to work related
suicide. If a worker has committed suicide due to an issue relating to
the office and the employer had the reason to anticipate a suicide,
action can be initiated against him.
Q: Could this be considered as a human rights issue?
A: Definitely. It is a violation of human rights. Workers have
a right to work in an environment where there is no sexual harassment.
Workers have a right to work with dignity and when it comes to sexual
harassment, it is about human safety and basic human rights. When it
comes to gender-based sexual harassment, it may be discrimination on the
grounds of sex. It definitely becomes a human rights issue. Many
international instruments relating to human rights have principles that
may be interpreted to deal with this offence.
The Convention on Elimination of All Forms of Discrimination Against
Women, for instance, has principles that can be used against sexual
harassment but definitely it is a human rights issue.
Q: Can employers take disciplinary action against
A: Yes. When it comes to sexual harassment in the work place
it is an issue about discipline in the organisation. The Employers can
take disciplinary action even if this action is not expressly prohibited
in the office. It depends on the nature or gravity of the offence. And
also the employer can also take action against sexual entertainment.
The employer is not paying workers for having sex at the work place.
Both sexual harassment as well as sexual entertainment come under
disciplinary issues. Hence action against them can be initiated.
Q: Could employers be liable under civil law?
A: It is possible, in foreign countries there are many cases
where Courts have held employers liable when employees failed to protect
their employees. In a situation where the employer had known sexual
harassment is taking place, their failure to prevent sexual harassment
makes them liable.
There have been other cases in foreign states where employers have
been vicariously liable for the acts of their employees within the scope
of employers, that is the employer is liable to the actions of others
But the law has developed to a greater extent in other countries. In
India there was an important judgement given by the Supreme Court of
India. It was known as the Visakha case.
When this case came up, India did not have effective provisions in
the legislation against sexual harassment at workplaces. The Supreme
Court made many guidelines to prevent this offence in the light of the
international conventions to which India is a state party. This action
filled the lacuna in the Indian legislation. Now India is making efforts
to devise a special legislation to deal with sexual harassment in
Q: If Sri Lanka is to bring in laws to combat workplace sexual
harassment, where will it fit in best?
A: We could amend the existing labour legislation, may be the
Industrial Disputes Act, etc to accommodate the laws. But I would say we
could go beyond that and have a special legislation to prevent sexual
harassment at the workplace.
Q: When an employee quits the job due to sexual harassment,
could she file action seeking relief?
A: Yes, it is possible. When an employee leaves the workplace
because of sexual harassment by the employer, that person’s action is
She is leaving because the employers’ actions have created an
intolerable situation. In this situation she is forced to leave, this
could be considered as constructive dismissal. Then it amounts to
termination by the employer. If the person can establish constructive
termination, then we have a case before a labour tribunal to seek
Q: Can you file a human rights case against sexual harassment
A: When it comes to human rights issues, we have provisions
about fundamental rights in the Constitution, but the provisions are
applicable when the rights are violated by the Government or its
For example if the act of sexual harassment is taking place in a
government institution, it is possible to file human rights or
fundamental rights cases for violation of constitutional provisions.
Q: What is the role trade unions can play to prevent sexual
harassment at workplaces?
A: They need to play an important role. They could assist the
victims to submit complaints to the top or the police. Sexual harassment
in workplaces could be construed as an industrial dispute. Then the
unions can take up the matter with the managers.
The unions can also bargain and include provisions in the collective
agreements (agreements between trade unions and the employer) to prevent
such incidents since Sri Lanka lacks laws that expressly cast
obligations on employer to take preventive measures.
The unions can create awareness among their members so that both
victims and perpetrators become aware of this offence. But unfortunately
the trade unions in Sri Lanka are mostly male dominated, thus they are
less concerned about this particular issue.
Q: Sexual harassment against women, is unusually common in Sri
Lanka. Not just in workplaces but we experience or witness this in
public transport, educational institutions and public places. It may be
in a mild manner but lack of respect for women is a serious issue. How
can we deal with this?
A: We have to include a chapter in the school curriculum to
train children, in an effective manner, on the importance of values.
Sexual harassment awareness should be incorporated in programs on Human
Resource Management courses and university programs as well. This has to
be made a separate course module.