Supervised by: Fernanda Farina LLB MSc PhD. Fernanda is a qualified lawyer who has recently earned her DPhil in Socio-Legal Studies at the University of Oxford. She also holds an MPhil in Law from the University of São Paulo and a law degree, with honours, from the Pontifical Catholic University of São Paulo. She currently works as a Senior Legal and Policy Adviser at a leading thinktank.
Abstract
This research paper investigates the laws in place in New Zealand and contrasts them with the lack of laws in Kazakhstan. Using a Kazakhstan case study, the effects of this difference are outlined to reflect how a strong framework against sexual harassment leads to greater gender equality in workplaces.
1. Introduction
Despite the increasing equality in female employment in recent years, the workplace culture remains lagging behind. Women still face great inequality in their workplaces when a variety of social aspects are considered, particularly in fields predominantly occupied by males. Over and above, the prevalence of sexual harassment of women is stark. An overwhelming 97% of women have been reported to have endured sexual harassment (UN Women, 2021). In addition to this, females are more likely to face sexual harassment than males are (NSVRC, 2018). As most spend long periods of time at their workplace, many cases of sexual harassment occur there.
Sexual harassment is defined as an offensive, unwanted and unwelcomed behaviour of a sexual nature (AWARE, 2022). It can exist in many different forms, from snarking verbal comments to sexual actions and could cause much emotional and physical trauma to an individual, affecting one’s ability to properly function and carry out daily activities. Victims of sexual harassment could spiral into self-blame and self-loathing, leaving them potentially unable to work productively and enjoy their normal lives.
Sexual harassment is seen to be an unfair treatment because those who perpetrate the action deviate from the usual, accepted behaviour of employees and inflict great harm and humiliation upon the victims. Thus, sexual harassment is considered gender inequality as the number of women and men facing it is disproportionate (NSVRC, 2022).
With the increase in women entering the workforce (Our World In Data, 2018), we must protect women from being discriminated against, to promote equal treatment of birth genders in order to create a more harmonious and safe working environment, which will in turn increase employees’ efficiency. Strong frameworks which reduce the percentage of women being sexually harassed must be enforced. With the use of regulations, the law can prevent more women from experiencing hurt.
This research paper compares two different countries with drastically different approaches in tackling sexual harassment. New Zealand has many laws in place to not only tackle the act of sexual harassment itself, but also to increase the awareness of its citizens surrounding this issue, whilst Kazakhstan has almost no laws going against it.
2. Methodology
Due to the nature of this investigation, where primary data is inaccessible, secondary sources were used. In order to ensure reliability of the information included, cross checking was done with a minimum of two other sources and the most reliable source was cited. The reliability was determined by the officiality of the sources. Additionally, the contexts of the information were also thoroughly considered.
Initially interested in investigating wage inequality in workplaces between males and females of the same profession, research was carried out to find case studies establishing this connection. Unfortunately, research on this proved to be futile as there were no findings available.
However, during the research, it was realised that there were many case studies available on sexual harassments in workplaces. Thus, the existing issue of sexual harassment may be considered a greater issue to women, as such cases were deemed important enough to be brought to court. It is also noted that this could perhaps be due to the restricted access of information or otherwise due to cases of income inequality being resolved internally within organisations. The availability of information may not be an accurate portrayal of the extent to which the type of inequality exists.
Kazakhstan’s legal framework on sexual harassment is a disappointing one. After coming across a case study on Anna Belousova, a Kazakhstan female who reported her years of sexual harassment to the city’s education department and the Kazkhstan police but was instead forced to publicly apologise to her perpetrator, sending her into a significant period of depression, it was realised that the state legal frameworks in place to fight sexual harassment is paramount to effectively reducing the harassment cases.
Kazakhstan is a member of the United Nations (UN) and is thus also part of the International Labour Organisation (ILO), where participating countries are required to uphold the ILO conventions, some of which include Conventions 100, concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, established in 1951, and 111, concerning Discrimination in Respect of Employment and Occupation, established in 1958. Other than the international laws, Kazakhstan does not uphold any state laws against gender inequality and, in particular, sexual harassment. This is concerning as Kazakhstan places 30th in female labour force participation, at a percentage of 64.83% of females over the age of 15 in work (Index Mundi, 2019).
New Zealand, shares a similar international legislative identity and working demographics as Kazakhstan. It has also ratified ILO Conventions 100 and 111 and has a very similar female labour participation rate of 64.53% (Index Mundi, 2019). However, the largest difference between these two countries is their workplace equality. New Zealand places fourth with a Women’s Workplace Equality value of 93.6 (CFR, 2018) whilst Kazakhstan ranks 107, with a Women’s Workplace Equality of 61.9 (CFR, 2018).
The Women’s Workplace Equality Index measures a range of factors that would contribute to workplace inequality, including employment opportunities, parental benefits, marital rape, and violence against females. Thus, sexual harassment is a factor of measurement for the index. The index provides a representation of the large disparity in gender equality at workplaces in both countries.
With a focus on sexual harassment, the effects of the presence and absence of state laws against gender equality in workplace is investigated in this paper.
Though the chosen two countries provide great insight on how legal frameworks against sexual harassment can lead to greater gender equality in workplaces, I had originally wanted to investigate on countries more close to home. As a Singaporean female about to enter the workforce in a few short years, I wanted to better understand the workplace dynamics through the investigation of how my country’s companies pay females in comparison to males in the same profession. To my dismay, there were no credible sources or case studies found. Information about such scenarios was largely restricted due to government regulations.
3.1 Literature Review
As established previously, sexual harassment must be regulated by frameworks which would deter perpetrators from actions that would lead to gender inequality, especially in the workplace. Frameworks are systems which support a certain cause and are usually given credibility with the law. In this case, it refers to the legal framework which comprises the constitution, legislation, regulations, and contracts (NRGI Reader, 2015).
Legal frameworks are built with calculated and specific laws in place that would tackle and prevent the arising of negative situations. Laws that prohibit sexual harassment well would be considered part of a strong framework against sexual harassment. Such laws could include incarceration, fines, injunctions, or compensation (Oxford Academic, 2012). Ideally, sexually harassment should be criminalised so as to ensure that laws against sexual harassment can be appropriately enforced. According to the degree of the crime enacted, varying approaches of punishment should be enforced.
When sexually harassed, the victim may face overwhelming emotions which can cause much confusion and self-doubt. They may be afraid to voice their hurt and may also be unsure if the act is even considered an act of sexual harassment. Moreover, even if they were aware, they are still subjected to the fear that the authority in question could handle the issue in an unsatisfactory way, perhaps leading to a masking of the crime. Hence, laws must also heighten the urgency for organisations to raise awareness of what constitutes sexual harassment and the steps victims can take following an incident, paying particular attention to their emotional needs.
Sexual harassment is an indicator of gender inequality. Gender equality is achieved when both men and women are employed, given wages and supported in entrepreneurship fairly. Gender equality is present when there are no instances of sexual harassment and violence against females, and both genders are given the same, un-violent treatment.
However, as we live in an imperfect world, inequality persists, and many aspects of it remain intangible. It is difficult to measure and eradicate inequality when it is portrayed through social circumstances. Sexual harassment in the form of misogynistic comments and unwanted flirtations can be difficult to sanction. Thus, introducing laws against more physical forms of sexual harassment is a good place to start the complete eradication of gender inequality in the workplace. Equality cannot be fully achieved that quickly, but the law holds the potential to catalyse the reduction of inequality.
In this investigation, the countries Kazakhstan and New Zealand were chosen based on the percentage of their women’s labour force and their Women’s Workplace Equality Index. However, though the reliability of these values have been ascertained through the credibility of the source selected, these values may not encapsulate and very accurately represent the social context in the countries. The reported female working population value does not differentiate between those who hold physical jobs and those who work from home. This disparity is integral in this investigation as it looks particularly at the physical space of the workplace. Furthermore, the Women’s Workplace Equality Index is calculated by measuring a plethora of factors, not exclusive to sexual harassment alone. Thus, the difference in the values the two countries have could be a result of factors other than the frequency of reported sexual harassment cases. Lastly, many sexual harassment cases also go unreported, further skewing the Women’s Workplace Equality Index. Despite this, a comparison of the laws in place and case studies show the validity of making the comparison between the two aforementioned countries.
3.2 International Law
The rights of women are protected by International Human Rights Treaties, which prohibit gender discrimination, requiring States to ensure the protection of women’s rights in all areas – from property ownership and freedom from violence, to equal access to education and participation in government, including the right to workplace participation (IJRC, 2019). Under the Fourth Geneva Convention, women are also protected from ‘indecent assault’, inclusive of workplace sexual harassment (Geneva Convention, 1950). The Committee on the Elimination of Discrimination against Women (CEDAW) legally binds countries to the protection of women’s rights. Countries are required to take appropriate measures to end discrimination against women as well as to advance gender equality by preventing discriminatory action (UN Women, 2022). With the CEDAW framework’s emphasis, amendments in laws have been made by many countries. To add on, countries are also obliged to give reports regularly on the measures undertaken by the country, whether judicial or administrative, to decrease the inequality between males and females. If standards are not upheld, victims may approach the CEDAW courts for quasi-judicial hearings. If the victim’s hearing is successful, redress will be provided to victims, commonly in the form of monetary reparations by the State party. The many international laws promoting women’s rights are thus solidified through CEDAW, which is able to assess and take steps when breaches occur.
3.3 Case Studies
In New Zealand, their constitution promotes gender equality in workplaces with The Human Rights Act, established in 1933, which debars employment discrimination against women. It not only looks at discriminaton whilst the employee holds their job role, its scope also takes into consideration application processes for jobs and resignation processes, as well as the livelihoods of unpaid workers and independent contractors (Employment New Zealand, 2019). Under the Employment Relations Act 2000, individuals can undergo mediation sessions to work towards a resolution in the event of sexual harrassment claims, or they can raise a personal grievance against them by lawfully going to the Human Rights Commission’s Director for a review of the situation. With reference to the same act, it is a prerequisite for employers to give employees the opportunity to discuss issues related to discrimination if the employee feels a sense of injustice. Union representatives or lawyers may be used to support the carrying out of the process. In a scenario where discussion proves futile, the free and confidential employment mediation service can be employed. In more severe scenarios, the case can be referred to the Employment Relations Authority. It has been made easier for victims of sexual harassment to attain justice and for their emotions to be validated, therefore.
It is important to note that sexual harrassment doesn’t only occur between employer and employee – it can also happen between colleagues. In such instances, the same bodies can be contacted for help. New Zealand has a range of actions in place to prevent the discrimination of women. Those who face such discrimination can also regain justice through easy accessibility to the justice-enacting bodies in place.
This is in stark contrast to Kazakhstan, where there is not only a lack of laws and regulations in place to prevent the sexual harassment of women, there is also a dearth of measures in place that enable victims of sexual harassment to share their experiences.
In 2015, 35 year old Anna Belousova, who had been working at a local school in Kazakhstan for more than a decade as a cloakroom attendant, was sexually harassed by a new principal. She was threatened by him to perform sexual acts or have her salary deducted by 10 thousand tenge ($23.37). Her salary was merely one-third more, at 15 thousand tenge ($35) a month. As she still continued to refuse the principal’s requests for sexual services, her contract was not renewed. She proceeded to report this to the local Head of the Rudnyy City Department of Education, where a three-person committee carried out an investigation on an unstated date and asked Belousova a few questions. She also invoked articles 120, on rape, and 181, on extortion, of the Criminal Code. The investigation was closed a while later, without the principal even being questioned, under the reasoning that Belousova’s ‘allegations were unfounded’ and that there was no basis to justify criminal proceedings. Concurrently, the principal sued Belousova for defamation and won, resulting in Belousova having to publicly apologise. This caused much damage to her emotional health, sending her into depression and causing her to develop post-traumatic stress disorder. Having had enough of the injustices of her State courts and laws, she took the matter up with the UN Committee on the Elimination of Discrimination against Women. After three years, the Committee validated her suffering and obligated the Kazakh State party to provide “adequate financial compensation for moral and financial damage caused by the violation of her rights” (CEDAW, 2015).
Belousova experienced firsthand gender inequality which caused her financial restraint and much mental turmoil. She then had her concerns thrown out the window by her state’s authorities and was disadvantaged by her state’s legislature. The law, instead of bringing justice to her, created further injustice. The lack of regulations on sexual harassment in her state’s laws positioned her to fail in her court hearings. She had to endure long periods of judicial meetings and undergo immeasurable anxiety and complications to bring the injustice to light in an international court. This highlights how the lack of rulings on sexual harassment caused much pain and suffering for Belousova.
This case study is just one of many instances where women have faced sexual harassment in Kazakhstan and have been unable to receive adequate and proper compensation for their hurt. It is conspicuous that for gender equality to be achieved, a strong framework against sexual harassment in the workplace must be in place. With a stronger framework, fewer people would be harassed.
4. Conclusion
With comparison of Kazakhstan and New Zealand’s legal framework, it is evident that the lack of laws surrounding sexual harassment in Kazkhstan has caused great gender inequality, exposing women to challenges they have to deal with on a physical and emotional level.
In conclusion, clear regulations on preventing sexual harassment are integral to creating greater gender equality in workplaces.
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