By Kaveesha Coswatte

What would you do if the injustice, harassment, and violence you face at your workplace or as an employee remains buried because you know that you are not given the same dignity and respect as others around you? What if the laws enforced to protect victims of harassment, victimize you because of who you are?

Convention No. 190 on Eliminating Violence and Harassment in the World of Work, commonly known as C190 is currently celebrated as being one of the progressive legal documents produced towards transforming the rights within the workplace.   Perhaps the most noticeable elements of the Convention are the clear definitions it puts forward highlighting the expanded scope of the “workplace” and “violence”.

It covers a very expanded definition of violence, asserts employer responsibility, and focuses on securing and growing employee rights. It also brings, under the umbrella of “harassment in the world of work”, violence that occurs in the course of, linked with, or arising out of work: be it within in the workplace, or public and private spaces where they are a place of work including when commuting to and from work.  It attempts to be inclusive and mindful of all possible situations related to violence at work, for example, Article 3 of the Convention has expanded upon the scope of violence by also including violence and harassment involving third parties when applicable.  C190 also focuses on wide-ranging support of victims, guaranteeing equal access to remedies, special care for victims, and workplace enforced remedial strategies.

Perhaps the most critical and necessary Article in C190 would be Article 1, which gives a clear meaning of “violence and harassment” and “gender-based violence’’ which includes physical, psychological, sexual, or economic harm and more where specified. It is important to note that the World Health Organization (WHO) describes gender as “the characteristics of women and men that are socially constructed, while sex refers to those that are biologically determined”. Jim Holmes of the WHO affirms and describes this definition quite clearly where “gender refers to the roles, behaviours, activities, attributes, and opportunities that any society considers appropriate for girls and boys, and women and men. Gender interacts with, but is different from, the binary categories of biological sex”.

With this understanding we must view that Gender-Based Violence (GBV) and gender-based harassment is perpetrated against people because they do not conform to the typical gender role that society attributes to them or those that are viewed as “normal”, “natural” and “acceptable” for them; to put it simply, if someone refuses to align with the socially accepted gender stereotype, it is more likely that he/she/they will be subject to such forms of discrimination.

If so, GBV and targeted gender-based harassment are no longer to be considered a synonym for violence against the female. There is another community of persons, who fall prey to such forms of violence but have less visibility and support: those who identity as LGBTIQ. Of course, Cisgender Men can be victims as well, however, those in the LGBTIQ community face much hardship and battles in their day-to-day life as both an employee and citizens. For example, a man who is perceived to be gay, bisexual, or transgender engaging in work that is considered traditionally a female’s job, exhibits effeminate qualities, is more susceptible to workplace harassment, bullying, and also loss of employment.

The harassment that LGBTIQ persons in the workplace experience truly does take a unique face. While most LGBTIQ persons within the country would prefer to stay closeted due to the legal and social repercussions that they will experience by being open about their gender identity or sexual orientation, this itself creates a huge pressure upon the individual to have to constantly keep up an appearance that is not truly them. This has been shown to affect the overall productivity of their work as well. In a study conducted by EQUAL GROUND in Sri Lanka, it was found that 58% of LGBTIQ persons in the workforce have experienced verbal harassment such as name-calling, derogatory remarks, spreading rumors, asking inappropriate personal or sexual questions, etc. 31% have experienced sexual harassment, which also included verbal and non-verbal invitations to have sex by colleagues, messages/emails with sexual content, inappropriate comments about their body/clothing/behavior, etc.

It is not new information that many corporate bodies within the country boast of “inclusive work culture’ ‘diversity’ and ‘zero-tolerance policy to discrimination’. However, the reality of these policies is that they amount to pretty words on paper put in place to fulfill a surface obligation to follow global standards.  In the same study aforementioned, it was also found that when asked if the victims are in a position to or have the option to complain to management about said harassment, 44% stated that they did not due to fear of more backlash. This inevitably means that even in the face of severe workplace harassment LGBTIQ employees remain silent and continue to experience recurring harassment because of the lack of adequate protective measures, corporate policy, sensitization programs for all employees, and increased targeting and discrimination.  As a result, a staggering 23% had resorted to leaving their jobs due to the psychological and emotional trauma they experienced.

Stories of these individuals are harrowing, but what is more saddening is the helplessness and sense of defeat they exhibit. Interviews conducted for this article brought up some prominent issues that in a typical employment situation, would be cause for immediate action by the standards of any corporate body. One gay man explained how he had been baited into a room in his workplace and made to confess about his abnormality on camera where his colleagues and managers have proceeded to humiliate him and threatened to use the recordings to dismiss him from work. Another transgender woman explained how she had started her transition after she had been employed, and had been groped and harassed multiple times as her body began to change. She had also not been permitted to use the female washrooms or changing rooms and had been forced to wait till everyone in the office left to use the washroom facilities or wait till she goes home. Their stories reflect the dire need to put protective measures in place to combat such inhuman and humiliating treatment.

Some LGBTIQ persons also experience discrimination and harassment in the recruitment stage itself. A transgender man expressed that in one interview with a reputable company, his interview was cut short once the interview board realized that he is transgender when perusing through his documents even though moments before he had been considered the most ideal for the job. According to a survey done in 2017 by EQUAL GROUND, it was discovered that such discrimination is common, with 22% of LGBTIQ people being denied employment because of their sexual orientation or gender identity in Sri Lanka. Some LGBTIQ workers who are not considered to be full-time employees are also very easily terminated from their jobs after being deemed redundant. C190 does present a remedy for this situation as well, where Article 2 gives a broad definition of who qualifies as a worker and that includes persons such as interns and apprentices, volunteers, job seekers, and job applicants, or any individual exercising the authority, duties or responsibilities of an employer. This extends more rights to a vast category of workers that have not been addressed by past legislation, making C190 better poised to respond to such challenges.