Price of inaction: Sexual harassment’s toll on Sri Lanka’s economy

Companies need to make institutional policy changes in order to ensure that their workplace is conducive for women to enter and advance in the workforce

Tackling workplace harassment in Sri Lanka is not just a social responsibility but an economic imperative. To secure future economic growth, the Government and employers must cooperate to enact and enforce policies that address harassment comprehensively. Change is only effective if meaningful. This is why we need clear legislative reform, employer-driven measures, and effective policies. The cost of inaction measured in lost productivity, turnover, and absenteeism—is simply too high for Sri Lanka’s economy to bear

In the landmark judgment of SriLankan Airlines v PRSE Corea (2024), the Supreme Court of Sri Lanka addressed a longstanding issue predominantly faced by women; sexual harassment in the workplace.1 This ruling emphasises that workplace harassment not only violates fundamental rights but also erodes productivity and morale, resonating deeply with the realities of Sri Lanka’s economy.2 

According to a 2022 International Finance Corporation (IFC) survey, workplace harassment costs Sri Lankan companies a staggering $ 1.7 million annually—equivalent to a loss of six workdays per employee.3 The prevalence of the issue has also caused women’s reluctance to join the workforce. A 2016 International Labour Organisation (ILO) questionnaire found that three-fifths of unemployed women would be willing to work if they were assured that they would not be subject to sexual harassment in the workplace.4 

These findings have a broader impact on the female labour force participation rate. In its first quarter of 2024, the Department of Census and Statistics revealed a low female labour force participation rate of 29.6%, less than half of the male participation rate of 67.2%.5 All of this reflects a persistent trend: sexual harassment has contributed to the low female participation, fluctuating between 30-35% in the past decade.6  

Despite the volume of data and efforts made by the court, Sri Lanka lacks a dedicated law that directly addresses sexual harassment in the workplace.7 This gap is further highlighted in the 2023 IMF report on women’s work choices, which emphasises the potential of stronger legal protections to significantly improve women’s employment rates.8 

Limitations of criminal law in addressing workplace sexual harassment

Sexual harassment (in general) is a criminal offence under Section 345 of the Penal Code (Amendment) Act No. 22 of 1995.9 Accordingly, anyone who uses physical force or assault to sexually harass another person, or who uses words or actions to cause sexual annoyance or harassment, is committing the crime of sexual harassment.10 In its explanation, the offence covers workplace harassment as it includes unwelcome sexual advances by words or actions used by a person in authority, in a working place or any other place.11 

In early July this year, efforts were made to expand and modernise the provision through the Penal Code Amendment Bill.12 The scope of ‘actions or words’ was broadened to include any form of communication, including sending, sharing, creating, or publishing sexually explicit messages, images, audio, or video through electronic means or the internet.13 The Bill also provides examples of what may constitute ‘words or actions’, causing sexual annoyance or harassment.14 This includes inter alia sounds or gestures made to cause discomfort; showing inappropriate objects; unwanted physical contact with sexual intent; or exposing oneself to alarm or upset another person.15 Recognising remote work, and the increasing reliance on electronic means of communication, this proposed amendment is a timely and a step in the right direction.

However, there remains a fundamental flaw in addressing sexual harassment in the workplace in the Penal Code, as it would be handled in criminal law, as opposed to civil law. Under criminal law, victims are required to make a complaint to the police, who are not adequately sensitised to the uniqueness of sexual harassment in the workplace complaints.16 Furthermore, the complaint being made may potentially lead to lengthy court proceedings, necessitating a higher standard of proof to win the case.17 This standard is referred to as ‘beyond reasonable doubt’, which means that the evidence should be so convincing, that there is no basis to question the guilt of the accused. Dealing with sexual harassment in the workplace in civil law gives the victim the opportunity to circumvent the process of making a complaint to the police. Additionally, the standard of proof in civil law is a ‘balance of probabilities’, demonstrating the claim is more than 50% likely to be true.

The Draft Employment Act 2019, which unifies employment law in Sri Lanka, is a formal attempt made to bring the offence of sexual harassment in the workplace outside the scope of criminal law. However, consecutive changes in government have buried the proposed reform, and no tangible amendments were materialised. 

Urgency for legal reform 

At the second review of the 48-month extended fund facility provided to Sri Lanka, the International Monetary Fund (IMF) stressed the need to address structural challenges to unlock the long-term potential of the country.18 Key recommendations included labour reforms aimed at enhancing skills, boosting female workforce participation, and narrowing gender gaps in the labour market.19 

Aligning with these priorities, the newly elected President calls for systematic change in his 130-page policy manifesto.20 He advocates for a unified framework to combat workplace sexual harassment, catcalling, and gender-based violence.21 Promising legal reforms to protect women in the workplace, he also highlights the need for social and psychological support for victims.22 Overall, he promises amendments to the laws and procedures to bring about effective change. While it is too early to gauge the full delivery of the new regime’s promises, revisiting them is imperative as it strongly resonates with the structural changes highlighted by the IMF.

Employers’ responsibility: Institutional reform 

Moreover, legal reform is not enough. Companies need to make institutional policy changes in order to ensure that their workplace is conducive for women to enter and advance in the workforce. This was emphasised by the Supreme Court in Kachchakaduge Frank Romeo Fernando v Brandix Apparel Solutions Limited (2018),23 highlighting that it is the employer’s responsibility to ensure a safe work environment. The ILO stresses the need for a proactive approach in dealing with issues of sexual harassment in the workplace to retain female labour participation.24 However, research conducted by Equal Ground in 2019 on the victimisation of minority groups at work in the formal sector revealed that only 38% of employers had mechanisms in place to address sexual harassment.25 Companies must proactively establish internal complaint mechanisms that allow employees to report incidents of harassment confidentially. It should include a clear process for filing complaints, followed by an independent investigation. Additionally, companies should provide victims with options for resolution, such as mediation, disciplinary action against offenders, or access to counselling services. 

Tackling workplace harassment in Sri Lanka is not just a social responsibility but an economic imperative. To secure future economic growth, the Government and employers must cooperate to enact and enforce policies that address harassment comprehensively. Change is only effective if meaningful. This is why we need clear legislative reform, employer-driven measures, and effective policies. The cost of inaction measured in lost productivity, turnover, and absenteeism—is simply too high for Sri Lanka’s economy to bear.

Footnotes:

1Sri Lankan Airlines Limited Vs P.R.S.E. Corea (S.C. Appeal No. 91/2017)  

2ibid

3International Finance Corporation (2022) Business Case for Creating Respectful Workspaces in Sri Lanka. Available at: http://www.grassrooted.net/wp-content/uploads/2023/03/SrilankaReport_5thSept-IFC.pdf (Accessed: 15 November 2024) 

4International Labour Organization (2016) Factors Affecting Women’s Labour Force Participation in Sri Lanka. Available at: https://www.ilo.org/sites/default/files/wcmsp5/groups/public/@asia/@ro-bangkok/@ilo-colombo/documents/publication/wcms_551675.pdf  (Accessed: 18 November 2024). 

5Department of Census and Statistics (2024) Sri Lanka Labour Force Quarterly Report 1st Quarter- 2024. Available at: http://www.statistics.gov.lk/LabourForce/StaticalInformation/QuarterlyReports/1stQuarter2024 (Accessed 15 November 2024)

6World Bank.  Sri Lanka | World Bank Gender Data Portal Available at: https://genderdata.worldbank.org/en/economies/sri-lanka (Accessed 15 November 2024)

7Advocata Institute (2022) Gender Discriminatory Labour Laws in Sri Lanka and Female Labour Force Participation. Available at: https://static1.squarespace.com/static/55697ab8e4b084f6ac0581ef/t/622620555b386e1d3b955569/1646665849826/Freedom+For+Her+Gender+Discriminatory+Labour+Laws+in+Sri+Lanka+and+Female+Labour+Force+Participation.pdf (Accessed: 18 November 2024)

8Fruttero, A., Gomes, D. and Sharma, N., 2023. Lawful Progress: Unveiling the Laws that Reshape Women’s Work Decisions. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4663318 (Accessed 15 November 2024)

9Penal Code (Amendment) Act (No. 22 of 1995), Section 345 

10Ibid

11Penal Code (Amendment) Act (No. 22 of 1995), Section 345

12Penal Code (Amendment) Bill (4 July 2024)

13Penal Code Amendment Bill (2024),  Clause 2(3) Available at: http://documents.gov.lk/files/bill/2024/7/517-2024_E.pdf (Accessed: 15 November 2024)

14Penal Code Amendment Bill (2024),  Clause 2(2) Available at: http://documents.gov.lk/files/bill/2024/7/517-2024_E.pdf (Accessed: 15 November 2024)

15Groundviews (2024) Criminalizing sexual harassment: Are we doing enough? Available at: https://groundviews.org/2024/08/20/criminalizing-sexual-harassment-are-we-doing-enough/ (Accessed: 18 November 2024).

16Women in Need (2019) Why Accessing Justice is Challenging for Victims of Sexual and Gender Based Violence? Available at: https://asiafoundation.org/wp-content/uploads/2024/08/Sri-Lanka_-Inside-Justice-Summary-Report.pdf (Accessed: 18 November 2024)

17Advocata Institute (2022) Gender Discriminatory Labour Laws in Sri Lanka and Female Labour Force Participation. Available at: https://static1.squarespace.com/static/55697ab8e4b084f6ac0581ef/t/622620555b386e1d3b955569/1646665849826/Freedom+For+Her+Gender+Discriminatory+Labour+Laws+in+Sri+Lanka+and+Female+Labour+Force+Participation.pdf (Accessed: 18 November 2024)

18IMF (2024) Sri Lanka: IMF concludes 2024 Article IV consultation and completes second review under EFF. Available at: https://www.imf.org/en/News/Articles/2024/06/12/pr-24214-sri-lanka-imf-concludes-2024-article-iv-consultation-completes-2nd-review-under-eff (Accessed: 18 November 2024).

19IMF (2024) Sri Lanka: IMF concludes 2024 Article IV consultation and completes second review under EFF. Available at: https://www.imf.org/en/News/Articles/2024/06/12/pr-24214-sri-lanka-imf-concludes-2024-article-iv-consultation-completes-2nd-review-under-eff (Accessed: 18 November 2024).

20Jathika Jana Balawegaya (2024) A Thriving Nation A Beautiful Life. Available at: https://www.npp.lk/en/policies/npppolicystatement (Accessed: 18 November 2024).

21Harini Fernando (2024), Sri Lanka’s Presidential Manifestos: Whats Promised for Women?, The Diplomat. Available at: https://thediplomat.com/2024/09/sri-lankas-presidential-manifestos-whats-promised-for-women/ (Accessed 17 September 2024)

22Ibid

23Kachchakaduge Frank Romeo Fernando v Brandix Apparel Solutions Limited (SC Appeal 60/2018)

24International Labour Organization (2016) Factors Affecting Women’s Labour Force Participation in Sri Lanka. Available at: https://www.ilo.org/sites/default/files/wcmsp5/groups/public/@asia/@ro-bangkok/@ilo-colombo/documents/publication/wcms_551675.pdf  (Accessed: 18 November 2024). 

25Chowdhury, S.A. (2021), A study on workplace discrimination: Challenges faced by LGBTIQ employees and the perspectives of employers in Sri Lanka, EQUAL GROUND, Sri Lanka Available at: https://www.equal-ground.org/wp-content/uploads/DAP-REPORT-FINAL.pdf (Accessed: 15 November 2024)

(Tiffahny Hoole and Thiloka Yapa are Attorneys-at-Law and former researchers at an Independent Public Policy Think Tank in Colombo. The authors also extend their heartfelt gratitude to Sathya Karunaratne for her invaluable insights and perspectives in writing this piece.)