Harassment, a violation of the fundamental right | LegaMart Articles
A seminar on Harassment, as a fundamental right

Harassment, a violation of the fundamental right

This article is written by Maria Joyo


In this extract, the author examines the trend and scope of harassment by highlighting its developments from ancient times to modern. This article focuses on how the term “harassment” is taken in various legal systems for a workplace setting. Furthermore, it stresses foreign jurisdictions to address the issue. 

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Historically, sexual harassment is considered a form of discrimination prohibited by law and courts. It is twofold; the first form deals with sexual harassment, and the other entertains simple harassment, such as intimidating jokes and commentary over body and clothing. Catharine Mackinnon is awarded the creation of a law over sexual harassment as well as she came across with the notion about sexual harassment as sex-based discrimination under Title VII of the civil rights Act 1964, which says,

“It violates Title VII for a supervisor to condition an employment opportunity on a sexual or social relationship. A case of quid pro quo discrimination is established if the plaintiff demonstrates that she is a member of a protected group, was subjected to “unwelcome” sexual advances, 

Firstly, the advances were based on gender;

Secondly, the harassment affected the employee’s compensation, terms, conditions, or privileges of employment;

Thirdly, employers are liable for supervisors’ quid pro quo advances.”

Over the centuries, women bear a lot of social and emotional trauma to survive. Still, in the past, the concept of harassment was not popular enough among women to break their silence for justice. However, it says when injustice reaches to peak, it produces shatterproof rebellions, as seen in Anita Hill when she sued Thomas (defendant), who sexually harassed her at the workplace, and later on, she succeeded. The incident provoked many women to resist harassment, and she was awarded the title of “woman of the year”.


A women employee being a victim of Harassment

Elvia Arriola, a critical feminist legal theorist, suggested that sexual harassment is based on white middle-class bias. This narrates that women are made for working in a white-collar work setting, and they can’t be involved in blue-collar work such as construction and mining since such places are considered male-dominated and tough jobs for women to handle. It denotes men’s control over women’s workplace nature.

Although every country gives, it’s individual a right to freedom, just as in Pakistan, article 25 grants equal rights to every individual to access public spaces, whereas article 27 deals with safeguarding against workplace discrimination. Not to mention EEOC policy guidance and vishaka guidelines in India indicate significant steps to prevent harassment and ensure safe employment at the workplace. 

Moreover, the concept proposed by Elvia challenged African American women; all of the sexiest stereotypes and racism directed their harassment towards black women giving a lucid understanding of discriminatory behaviour. However, the hurdles went beyond their persistence and brought a claim under the law. These women are said to be the first to fill the precedent under title VII of CRA 1964 against harassment. 

Nonetheless, talking about sexual harassment in the workplace from ancient times and the trend of blaming victims never ended. Brodsky’s study leads us to focus on harassment in the workplace, where if a woman claims to be harassed, employers never get disturbed about their position and how they are spoiled. Still, they are more concerned about the reputation of an organization where the perfect solution is to fire a woman from the service with some compensation.

The tendency to blame the victim led all women to the sickening realization that the fault lies within them, thus putting their mental health at risk. Rose Schneiderman received a complaint from a chairwoman saying that Mr Aptheker often pinches girls, and for his justification, that is his habit. When the issue was raised, and Miss rose claimed it to be unbearable and immoral, followed by her words, Mr Aptheker vomited up his statement thinking it as flowery, “why miss rose these girls are like my children” were on without a blink he received her reply, “if that is the case then Mr Apetheker we would rather love to be orphans”.

However, It will be accurate to pronounce that sexual harassment is a men-against-women interaction, but the fact can’t deny that at the same time, it is a men-against-men interaction also. The distinction between them is considered as men use non-sexual types of harassment to tease other men for any position in the department. Neither in history nor in current situations is there much evidence that amounts to this type of flaw in society.

Progress in the USA

Handcuffs and wooden hammer which has name mentioned Harassment

Evaluations of laws over harassment also took its roots in racial harassment. All those women working in blue-collar work settings, for instance, construction and mining, experienced different sorts of harassment than those in white-collar work settings. It is said that male in these workplaces does not just verbally abuse them. Still, force physical violence, thus creating a hostile work environment to eradicate women from male-dominated areas.

Immediately women in the US urged courts and policymakers to broaden the meaning of harassment and involve a hostile work environment, not just quid pro quo cases, which will safeguard their rights. Nevertheless, women working in blue-collar settings started to unroll awareness about harassment at the workplace, telling women how males desired to keep women subordinate in leading positions and at the workplace.

Furthermore, in the mid-1970s, women started working against sexual harassment. In contrast, in the spring of 1975, female construction workers brought two lawsuits, establishing the first federal regulations against sexual harassment. At this time, women were already encouraged to speak publicly about their rights.

Thus, it was testified to have mephistophelian activities at the workplace needed to be set right. Libby Howard highlighted obscene graffiti wage campaigns; women were considered “bad luck” in the coal mining field, so female coal miners formed CEP (coal employment project) in 1977 to assist women in this field. They draw three-fold distinctions of harassment. The first deals with the traditional point of view where women were seen differently in male-dominated fields. Secondly, the male coworkers treat them as a source of entertainment, such as they urge them to get a cigarette to smoke.

Lastly, in the mining profession, men are reported to drill holes in females’ bathrooms to peer at the data of women showing and dressing.    

Subsequently, the case of Hawkins 1974 indicates how women were treated in the workplace where Clif Warling(coworker) repeatedly made verbal sexual advances and also tried to touch her, not to mention he dared to say that “females have no business in the area of the factory if they are willing to carry it any way they have to be tramp”. All these incident works as evidentiary to the discriminational behaviour.

Although most of the cases of harassment in 1971 were brought by African American women and the concept of sexual harassment would not be grown if these women didn’t stand for the injustice happening in society. It was never about what kind of women are being harassed and which category of women are not being harassed, but it is always about a woman being harassed; the word ‘WOMAN” goes by its own.

Concept of Harassment in India

India has the 54% of increased harassment cases reported from 2014 to 2017. An Indian communist, Praful Bidwai describes the image of women as follows, “Discrimination against women starts in the fetus, proceeds through systematic undernourishment in childhood and deprivation of education in adolescence, and ends in domestic violence and bride burning”.

The legal system Of India addressed the crystallization of terms that made justice for women quite challenging. The case of Vishaka Vs state of Rajasthan and others is said to be the leading authority for setting out the definition of harassment as “Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication): 

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”

Subsequently, a precedent set for creating a hostile workplace was made liable. There will be strict requirements for adopting an effective redress for violating the fundamental rights of an individual under Articles 14,19 and 21, which are brought beneath A.32. Moreover, the Indian Supreme court relies upon practical guidelines of CEDAW, as says, 

 “In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of International Conventions and norms are significant for interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(l)(g) and 21 of the Constitution [of India] and the safeguards against sexual harassment implicit therein…”

The reasoning of the Vishaka case was reiterated in the case of Apparel Export Promotion Council V A.K Chopra. Henceforward, The Indian legal system also endeavours to eradicate harassment to serve justice. Justice Khan researched Eve-teasing of women as a form of harassment, 

“Eve-teasing by roadside Romeos is fast on the increase in cities. But, unfortunately, no offence is so easy to commit and so difficult to be booked. The victims of this offence are mostly modest and shy girls or young women of respectable families. While on the roads or passing in the by-lanes, prowling desperadoes cut filthy jokes with them or pass indecent, sensuous or sarcastic remarks against them, the poor victims dare not protest to avoid creating a scene or attracting a crowd on the spot”

Unfortunately, there are no such provisions for these claims in India, but they can be brought up under Sections 509,294, and 354 of the Indian Penal Code.

Circumstances in Pakistan

Consequently, In Pakistan, 93% of women face sexual violence. A survey by Daily Times in August 2010 reported a case where a woman raised her voice for harassment at the workplace. However, the term harassment is misapprehended due to the lack of education in the country. Many women don’t speak about it due to a scarcity of awareness, so the legal system enacted the Protection Against Harassment Of Women at the Workplace Act of 2010. Albeit, Section 2(f) of the Act 2010 defines harassment as any unwelcome sexual advances made are liable.

It further stresses on code of conduct in every workplace and setting up an inquiry committee where out of 3 members, one should be a woman from a senior position in the department. Despite the possibility of harassment outside of the workplace, The court and policymakers instruct the victims to go for section 509 of The Pakistan Penal Code, which communicates,

I. “Intending to insult the modesty of any woman, utters any words, makes any sound or exhibits any object,… 

II. Conducts sexual advances or demands sexual favours or uses written or verbal communication or physical conduct of a sexual nature which intends to annoy, insult, intimidate or threaten the other person or commits such acts at the premises…..”

Notwithstanding, international efforts have been made to limit the spreading of harassment. In May 2002 European Union Council directed for the equal treatment of genders at the workplace for the prevention of harassment, while The United Nations General Recommendation 19 highlights, “Elimination of all forms of discrimination against women”, dealing with the subject by defining the term sexual harassment of women”. In the case of Barnes V Train, the court system of the USA was working over this kind of criminal activity.

However, the motive for the hostile work environment was discussed in the later case of Meritor Savings Bank V Vinson. Pakistan has taken into account foreign jurisdiction to enhance its system. 


Famously said by Nelson Mandela, “Domestic violence, rape, and abuse of women remain disgraceful blots on the reputation of a country that is called a miracle nation in other respects”. It is mandatory to create tranquillity in the country else injustice will result in civil disobedience.

Workplace harassment not only deals with physical contact but in modern times, law and courts recognize the rise of cyber harassment as well. When the lawmakers claim that “no one comes before the law”, it should be implemented for women to have proper protection and equal rights to survive to value their presence, else it will be unjust with one community, and the other will be dominated by them which only leads to catastrophic societies. 

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