BY ARCHITA.
Gender Harassment in the Legal Arena
When Priya, a budding lawyer, is called by her Senior for a conference with a client but the topic veers from law points to the nuances of the latest nude done by Hussain or Souza, Priya doesn’t know whether to participate in the discussion, as a mature, modern woman or quietly squirm in her seat. Or take Lakshmi, a twenty something bright, legal rookie who has just landed a plum job at a high profile legal firm. But in her first five months at work she’s not done much but listen, with pretended patience, to the explicit accounts of her boss’ marital problems. Incidentally, Lakshmi is also attractive.
It’s been about six years since the landmark judgement in the case of Vishakha vs. State of Rajasthan in 1997, and predictably the issue has since been relegated to the realms of public amnesia and apathy. It’s about time, more so in the light of the Karnataka Judiciary sex imbroglio, to pull up and take stock of the situation. Only intermittently are the ever placid sensibilities of the legal community ever ruffled, such as when the headlines of a suicide of a woman lawyer, allegedly due to sexual harassment by senior lawyers, screech at them (June 15th, 2000 in Andhra Pradesh). Media exploits such news to cater to the sensationalist in all of us, eliciting reactions which range from sombre nods to lewd discussions, but very soon its again back to the hum-drum.
Let’s take a moment to remind ourselves of what made the Vishakha ruling unprecedented and radical: it was the redefinition of ‘sexual harassment’, which was enlarged to include “physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical, verbal, non verbal conduct.” What distinguished these directions was the shift in focus from the intent of the perpetrator to the impact of the behaviour on the recipient. For the first time it was acknowledged that sexually offensive behaviour cannot be so strictly defined – that what is palatable for one person could be obscene for another. That something as subtle as even a glance or gesture can be offensive.
With this in the mind let’s scratch behind the surface of the busy and dignified lives of black coats and white collars and examine this historic ruling in a functional perspective today. Ironically the legal profession, which is ostensibly the defender of justice, sometimes ends up being the scene of the worst and cleverest offenders.
Thanks to the Hindi film industry and stereotypes spewed by it, female lawyers, together with police women enjoy (or bear with!) the image of glamorous power machines at the vanguard of the feminist cause. In truth that’s a far cry from the reality. In fact the long, flexible, and relatively confined working environs which the legal profession demands, plus the entry of a large number of women at the junior level, makes it increasingly vulnerable to sexually exploitative behaviour.
The truth, as always, remains elusive and is tough to catch hold of, especially on something as sensitive and potentially scandalous as sexual harassment in the legal profession. Pointed questions on the issue are more than often met with nonchalant shrugs, meaningful giggles, affronted looks, or even spirited defence. The topic, expectedly, would rather be avoided by members of both genders. Sometimes male lawyers are more forthcoming on this issue and they are eager to volunteer information on talk of sexual harassment which is making the rounds of the court grapevine – but before you are pleasantly surprised, the motive behind such forthrightness is to serve a warning to any fresh female entrant – a chauvinistic piece of advice to stay away from the ‘big bad world’ of law and letters. Victims, on the other hand, need to reach a particular comfort level and feel absolutely confident about their privacy being protected before they can even whisper about their personal experience.
Of the reported cases, sexual harassment can be put into two categories – “quid pro quo” and “hostile environment.” Quid pro quo, a Latin term meaning ‘this for that’, occurs when the person in authority offers benefit or threatens to change the working condition based on the victim’s response to his demands for sexual favours. “Hostile environment” harassment occurs when physical, verbal or visual sexual harassment is severe or pervasive enough to create a hostile or abusive work environment.
It is the quid pro quo harassment which is most difficult to contend with. A very commonly heard snide remark in the legal circles obviously deriving its basis from hearsay is that when a woman lawyer attains success, it is due to her prowess in other faculties to do with the advantages of her sex rather than her intelligence or efficiency in her profession. Defenders would have us believe that this notion carries a semblance of truth, because most of the alleged cases of harassment, according to them, are consensual in order to derive professional favours. To support this theory Amar, another lawyer with five years of practice behind him, cites with a smirk the instance of two young female lawyers retained by a successful legal firm on a high pay scale, whose job profile only involves “client entertainment.” Which brings us to the widely debated point as to what constitutes consent and, if consent is obtained, does taking advantage of some compulsion really mean consent.
The power barrier between the accused and the recipient cannot be ignored. Senior lawyers and, in some cases judges, who are the perpetrators have economic, social and organizational power in their favour, which the victim has to contend with. One senior woman lawyer came up with this poser based on her experience: When a member of the esteemed judiciary chooses to use some sexually offensive expletives to address a female lawyer, and if the lawyer at the receiving end decides to grin and bear it, does that mean consent and permission to perpetuate that kind of behaviour?
Not long ago a leading news channel on television covered a hullabaloo in a provincial court about the dress code for female lawyers. Strong objections were raised against those dressed in trousers, for some members of the fraternity believed that women clad in trousers are sexually provocative and that such an attire compromised the dignity of court! Such instances of sexual discrimination are another form of sexual harassment and serves to remind us of those archaic days when, seventy years ago, Sudhanshu Bala Hazra, a young woman in Calcutta, was refused the right to practise on the ground that women were not fit for the “hurly burly of the legal profession.”
However, there is a section of woman lawyers who vouch for the safety and dignity of law as a profession. Smita has been in the profession for an year now and she has nothing but praise to offer for the profession and its gender-egalitarian ambience. She feels that her status as a lawyer has given her an entirely new and independent identity in society at large, being part of one of the most forceful pressure groups of today. And, as far as the members of the legal profession are concerned, she feels that being a woman invites that added respect and encouragement. Vaishali, on the other hand, feels that the legal community is increasingly acknowledging the fact that women make more conscientious and scrupulous lawyers and are being welcomed to impart the profession with a fresh breath of sincerity.
The fact remains that for every Vaishali and Smita there are two or more Priyas or Lakshmis behind the scenes, hesitant and reluctant to come out in the open. The fact is that the problem remains real and alive, though behind wraps. With no system of checks and balances there is a lack of reported cases, so no deterrent action is taken which gives rise to a vicious circle that is repeated endlessly. In the absence of witnesses or other concrete proof, it often becomes the complainant’s word against the harasser’s. The dismal rates of reporting have lulled the legal community in a state of ignorant well being, only this ignorance is no precursor to bliss. The situation was very succinctly summed up by a senior lawyer when he said that it is not that the problem is “less serious,” it’s only “taken less seriously.” Or, to rephrase it in the words of professor Deborah Rhode from the Stanford University Law School, it is the “‘No Problem’ Problem.” Rhode says that people believe women are no longer harassed or discriminated against in the legal profession or that all the complaints are merely “post feminist blather.” As unbelievable as it may sound, the legal profession is one of the work environments that is most susceptible to sexual exploitation.
In fact a research study conducted by the university of San Diego, California, made a startling disclosure that the problem is not only limited to the so called developing countries, but is rampant in the developed world as well, even with their ostensibly mature legal ethics and work environment. Paula Jones’ allegations against then president Bill Clinton are still a recent memory, while it was the landmark case of Reena Weeks against Baker and Mckenzie, the world’s largest law firm, which served as an eye opener. Weeks won a $7million verdict for being sexually harassed by a senior partner.
In a meeting sponsored by the American Bar Association and the American Legal Institute, the managing partners of half the firms in attendance acknowledged investigating complaints of sexual harassment or sexual discrimination in their offices. The issue was brought into focus once again when, recently, lawyer and city councilman William W. Harrison, Jr. paid $28,000 to a former employee for what she said was a sexual assault.
The greatest vitiating factor is the attitude and belief held by the ‘stronger sex’ that in a profession which demands skill and dynamism the only role suitable for a woman is that of a wallflower. Such prejudicial stereotypes against women operating in a hitherto unconventional field like law manifests itself in overt and covert ways. It sometimes leads to blatant derision or at times to a subtle, condescending attitude. The harassment is mostly not even on a one to one basis. It is present in the general attitude, and sometimes the sexist references are so subtle in nature that they can’t be pinpointed.
The quintessential question arises on how to contend with the existing state of affairs. Realistically speaking, the problem can’t be rooted out in its entirety today, nor tomorrow, as long as “men come from Mars and women come from Venus.” However, a two layered strategy can be adopted to mitigate it in some measures. Gender sensitisation should take precedence and primacy over the complaint and punishment mechanism. As a leading supreme court woman advocate opines, “Proactive measures are more important. Sensitisation committees are needed instead of mere complaint committees. Orientation and legal literacy programs should be conducted. Above all, men should be involved in all these programs.” Aim should be taken at the root cause of these problems to change the way society views women.
A small step towards this effect could be the introduction of courses on feminist legal theory and thought in all the law schools in India. A pioneering initiative has already been undertaken by the National Law School at Bangalore which, apart from introducing such courses, has gone a step further with the setting up of the Centre for Woman and Law which is sworn to create awareness towards gender justice in the legal profession.
The National Human Rights Commission has begun taking avid interest towards strengthening the second rung of the defence mechanism. The NHRC directed the setting up of a high level committee to consider sexual harassment of women in the legal profession and to recommend punishment within a given time frame. The committee stands bound to make not only suitable recommendations for penalization within a given time frame, but also to suggest amendments to the Advocate Act and the Bar Council Rule.
Until such a time that these proactive measures are implemented and they start having a definite effect, sexual harassment and that the legal environment today continues to reflect the unjust balance of power between males and females are facts which the legal community has to face up to. Fortunately change is on a roll and the very fact that the existence of the problem is being acknowledged can be treated as a milestone.
The Author is an International Corporate Lawyer.