Summary: Sexual harassment at the workplace encompasses any unwanted sexual behavior that creates an uncomfortable, offensive, or hostile environment. This can include unwelcome sexual advances, requests for sexual favors, sexually colored remarks, showing pornography, or other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. The POSH Act, 2013 in India specifically defines these acts and includes circumstances such as implied or explicit promises of preferential/detrimental treatment, threats to employment status, interference with work, or creating a humiliating atmosphere that affects an individual’s health or safety. This behavior is a violation of fundamental rights, including the right to equality, non-discrimination, and a safe working environment, as enshrined in the Indian Constitution. The concept of an “aggrieved woman” under the POSH Act is broad, covering all women working or visiting any workplace, regardless of their employment status (regular, temporary, contract, volunteer) or location, including domestic workers and students. A workplace is also broadly defined, encompassing both organized and unorganized sectors, government and private organizations, hospitals, sports facilities, and even a dwelling place or house if work-related. Courts, like the Delhi High Court, have acknowledged that sexual harassment is a subjective experience, recognizing that what one person considers harmless, another may find deeply offensive, particularly in the context of differing perspectives between genders. Legal precedents from various High Courts and the Supreme Court of India affirm that the definition of sexual harassment extends beyond physical contact to include stalking, abusive language, obscene content, and creating an intimidating environment, emphasizing that even non-physical acts can constitute harassment. The severity of such acts often warrants strict disciplinary action, regardless of outcomes in criminal cases.
MEANING OF SEUAL HARASSMENT AT WORKPLACE
As you are aware that “Sexual harassment is any unwanted sexual behaviour that makes someone feel upset, scared, offended or humiliated, or is meant to make them feel that way.”
Women across the world frequently face sexual harassment and all forms of gender discrimination in the workplace. Every human being has the right to work in a safe and secure work environment. Sexual harassment puts the basic human rights and dignity of an individual in peril.
Sexual harassment is a type of sexual violence – the phrase we use to describe any sexual activity or act that happened without consent.
Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature in the workplace or learning environment, according to the Equal Employment Opportunity Commission (EEOC).
Merriam-Webster’s dictionary of law defines sexual harassment as “employment discrimination consisting of unwelcome verbal or physical conduct directed at any employee because of his or her sex”.
WIKIPEDIA– Sexual harassment is a type of harassment involving the use of explicit or implicit sexual overtones, including the unwelcome and inappropriate promises of rewards in exchange for sexual favors. Sexual harassment can be physical and/or verbal. Sexual harassment includes a range of actions from verbal transgressions to sexual abuse or assault. Harassment can occur in many different social settings such as the workplace, the home, school, or religious institutions. Harassers or victims can be of any gender. In the workplace, harassment may be considered illegal when it is frequent or severe, thereby creating a hostile or offensive work environment, or when it results in an adverse employment decision (such as the victim’s demotion, firing or quitting). The legal and social understanding of sexual harassment, however, varies by culture.
In India, sexual harassment of women in the workplace grossly violates their fundamental rights such as;
- The right to equality under Article 14 of the Constitution of India,
- The right against discrimination under Article 15 of the Constitution of India,
- The right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe working environment free from sexual harassment under Article 19 (1) (g) of the Constitution of India and
- The right to life and dignity under Article 21 of the Constitution of India.
Protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as the Convention on the Elimination of all Forms of Discrimination against Women, which was ratified by the Government of India on 25th June 1993.
MEANING OF SEXUAL HARASSMENT
SECTION 2(N) OF THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 (ALSO REFERRED TO AS THE “POSH ACT, 2013”) defines sexual harassment as direct or implicit unwelcome acts or behaviour such as:
i. physical contact and advances or
ii. a demand or request for sexual favours or
iii. making sexually coloured remarks or
iv. showing pornography or
v. any other unwelcome physical, verbal or non-verbal conducts of sexual nature.
Sexual harassment at workplace includes the following circumstances as enumerated under Section 3 (2) of POSH Act, 2013:
i. Promise of preferential treatment in the workplace either express or implied.
ii. Threat of detrimental treatment in the workplace either express or implied.
iii. Threat relating to the current or future employment status of the woman at the workplace either express or implied.
iv. Interfering with the work of the female or creating an intimidating or offensive or hostile workplace for her.
v. Treating the woman in a humiliating way that is likely to affect her health or safety.
WHO IS AN AGGRIVED WOMEN?
The Act recognizes the right of every woman to a safe and secure workplace environment irrespective of her age or employment/work status. Hence, the right of all women working or visiting any workplace whether in the capacity of regular, temporary, adhoc, or daily wages basis is protected under the Act. It includes all women whether engaged directly or through an agent including a contractor, with or without the knowledge of the principal employer.
They may be working for remuneration, on a voluntary basis or otherwise. Their terms of employment can be express or implied. Further, she could be a co-worker, a contract worker, probationer, trainee, apprentice, or called by any other such name. The Act also covers a woman, who is working in a dwelling place or house.
Aggrieved Women
1.Working
a) Domestic Worker
b) Regular/Temporary /Ad-hoc/Daily Wager
c) For remuneration/Voluntry basis/Otherwise
d) Employed Directly/Through an agent.
e) Contract Worker/Probationer/Trainee/Apprentice/Caled by any other name.
2. Visiting a Workplace
3. Student.
WHAT IS A WORKPLACE? A workplace is defined as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey.”
As per this definition, a workplace covers both the organised and un-organised sectors. It also includes all workplaces whether owned by Indian or foreign company having a place of work in India. As per the Act, workplace includes:
– Government organizations, including Government company, corporations and cooperative societies;
– Private sector organisations, venture, society, trust, NGO or service providers etc. providing services which are commercial, vocational, educational, sports, professional, entertainment, industrial, health related or financial activities, including production, supply, sale, distribution or service;
– Hospitals/Nursing Homes;
– Sports Institutes/Facilities;
– Places visited by the employee (including while on travel) including transportation provided by employer;
– A dwelling place or house.
The Act defines the Unorganised Sector as:
– Any enterprise owned by an individual or self-employed workers engaged in the production or sale of goods or providing services of any kind;
-Any enterprise which employs less than 10 workers.
All women working or visiting workplaces, for example:
a) Government Organisations;
b) NGOs
c) House
d) Nursing Homes
e) Corporations
f) Farms
g) Educational Institutions
h) Sports Facilities
i) Hospitals
j) Co-operative Societies
k) Service Provides
l) Companies.
SEXUAL HARASSMENT IS A SUBJECTIVE EXPERIENCE In 2010, the High Court of Delhi endorsed the view that sexual harassment is a subjective experience and for that reason held “We therefore prefer to analyse harassment from the complainant’s perspective. A complete understanding of the complainant’s view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement. … Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.” Dr Punita K. Sodhi v. Union of India & Ors. W.P. (C) 367/2009 & CMS 828, 11426/2009 On 9 September 2010, in the High Court of Delhi
SOME EXAMPLES OF BEHAVIOUR THAT CONSTITUTE SEXUAL HARASSMENT AT THE WORKPLACE:
1.Making sexually suggestive remarks or innuendos.
2. Serious or repeated offensive remarks, such as teasing related to a person’s body or appearance.
3. Offensive comments or jokes.
4. Inappropriate questions, suggestions or remarks about a person’s sex life.
5. Displaying sexist or other offensive pictures, posters, mms, sms, whats app, or e-mails.
6. Intimidation, threats, blackmail around sexual favours.
7. Threats, intimidation or retaliation against an employee who speaks up about unwelcome behaviour with sexual overtones.
8. Unwelcome social invitations, with sexual overtones commonly understood as flirting.
9. Unwelcome sexual advances which may or may not be accompanied by promises or threats, explicit or implicit.
10. Physical contact such as touching or pinching.
11. Caressing, kissing or fondling someone against her will (could be considered assault).
12. Invasion of personal space (getting too close for no reason, brushing against or cornering someone).
13. Persistently asking someone out, despite being turned down.
14. Stalking an individual.
15. Abuse of authority or power to threaten a person’s job or undermine her performance against sexual favours.
16. Falsely accusing and undermining a person behind closed doors for sexual favours.
17. Controlling a person’s reputation by rumourmongering about her private life.
SOME EXAMPLES OF BEHAVIOUR THAT MAY INDICATE UNDERLYING WORKPLACE SEXUAL HARASSMENT AND MERIT INQUIRY:
1.Criticizing, insulting, blaming, reprimanding or condemning an employee in public.
2. Exclusion from group activities or assignments without a valid reason.
3. Statements damaging a person’s reputation or career.
4. Removing areas of responsibility, unjustifiably.
5. Inappropriately giving too little or too much work.
6. Constantly overruling authority without just cause.
7. Unjustifiably monitoring everything that is done.
8. Blaming an individual constantly for errors without just cause.
9. Repeatedly singling out an employee by assigning her with demeaning and belittling jobs that are not part of her regular duties.
10. Insults or humiliations, repeated attempts to exclude or isolate a person.
11. Systematically interfering with normal work conditions, sabotaging places or instruments of work.
12. Humiliating a person in front of colleagues, engaging in smear campaigns.
13. Arbitrarily taking disciplinary action against an employee.
14. Controlling the person by withholding resources (time, budget, autonomy, and training) necessary to succeed.
SOME EXAMPLES OF WORKPLACE BEHAVIOURS THAT MAY NOT CONSTITUTE SEXUAL HARASSMENT:
1.Following up on work absences.
2. Requiring performance to job standards.
3. The normal exercise of management rights.
4. Work-related stress e.g. meeting deadlines or quality standards.
5. Conditions of works.
6. Constructive feedback about the work mistake and not the person.
FORMS OF WORKPLACE SEXUAL HARASSMENT Generally workplace sexual harassment refers to two common forms of inappropriate behaviour:
- Quid Pro Quo (literally ‘this for that’)
– Implied or explicit promise of preferential/detrimental treatment in employment;
– Implied or express threat about her present or future employment status.
- Hostile Work Environment
– Creating a hostile, intimidating or an offensive work environment;
– Humiliating treatment likely to affect her health or safety.
LET’S ANALYSE SOME SENERIOS OF SEXUAL HARASSMENT
SCENARIO EXAMPLE 1 Kamini is a bright young team leader working in a call centre. Known to be forthright, she is dedicated, hardworking and is a perfectionist. Kamini stays back at work late one evening with her colleague Ravi to complete work for an important presentation.
Ravi offers to buy Kamini dinner and later drop her home since it’s been a long day. After dinner, Ravi proposes to Kamini that he would like her to spend the night with him. Kamini refuses politely but firmly and goes home.
Next evening, Ravi repeats his request and on Kamini’s refusal, threatens her that if she doesn’t give-in, he will tell everyone that she made a pass at him.
What is Workplace ‘this for that’ Sexual Harassment? In the above example, Ravi’s threat to Kamini that if she does not agree to his ‘request’ for a sexual favour, he will in return smear her character at the workplace as a person who wants to use sexual favours to her advantage constitutes quid pro quo form of sexual harassment. Ravi’s behaviour is unwelcome, sexual, and has a negative impact on Kamini.
SCENARIO EXAMPLE 2: Renuka is employed as a domestic worker where she is expected to take care of all the household activities, other than cooking. Most of the days, the lady of the house leaves early. Renuka is therefore left alone in the house with a male member of the household.
Renuka finds the male member constantly leering at her when he is at home and often walks around the house wrapped in nothing but a towel which makes her very uncomfortable. On one occasion, while she was sweeping, he pinched her bottom. When she protested that she will complain to the lady of the house, he threatened to accuse her of stealing, and that he will ensure that she loses her job.
What is Workplace Sexual Harassment? In the above example, the male member by threatening Renuka to keep quiet about the unwelcome physical contact if she wants to continue with her employment commits quid pro quo form of sexual harassment. His behaviour occurring in a matrix of power, is unwelcome, sexual and has a negative impact on Renuka.
SCENARIO EXAMPLE 3 Shamima is a lawyer who works as a researcher at an NGO in Delhi since 2013. Dr. Bhavan is the director of the organisation and has always advocated for the cause of human rights. During an official field visit to Shimla for 2 days, Dr. Bhavan finds an opportunity to be alone with Shamima and makes a physical advance. Despite her protests, he forces himself on her while giving lurid and sexually explicit details of his relationships, both past and present, with women. When she chastises him and threatens to make his behaviour public, he threatens to destroy her career.
What is Workplace Sexual Harassment? In the above example, by threatening Shamima with the destruction of her career, Dr. Bhavan commits quid pro quo sexual harassment. His physical advances and sexual conversation are unwelcome for Shamima and occur in a matrix of power.
EXAMPLES OF SCENARIOS THAT CONSTITUTE A ‘HOSTILE WORK ENVIRONMENT’ TYPE OF SEXUAL HARASSMENT AT THE WORKPLACE:
SCENARIO EXAMPLE 1 Jayanthi works in a garment factory in Bangalore. Varghese, Jayanthi’s supervisor, often tries to touch her on one or the other pretext. For example, he adjusts her dupatta while she is sewing at her workstation on the pretext of covering her back. Jayanthi is very uncomfortable with his behaviour. Her colleagues at the workplace ridicule Jayanthi and mock her for the ‘special treatment’ by her supervisor. They often gossip about her and Varghese.
What is a Hostile Workplace Environment Sexual Harassment? In the above example, the physical touching by Varghese is unwelcome and sexual in nature. The gossip, which is based on Varghese’s behaviour towards Jayanthi at the workplace, is creating a hostile work environment for Jayanthi.
SCENARIO EXAMPLE 2 Sukhi is a daily wage labourer working at a construction site. Every day at lunch time, Sukhi sits under the shade of the tree to feed her 16-month-old baby. She finds Jaswinder, a worker, staring at her from the distance. Sukhi feels uncomfortable and asks Jaswinder to stay away from her while she’s feeding the baby. However, Jaswinder persists and always finds a place near her. The group of fellow construction workers now constantly catcall and whistle at Sukhi every time she walks their way to refill the cement or mortar. When she questions them, they tell her they are only joking amongst themselves.
What is a Hostile Workplace Environment Sexual Harassment? Ogling, stalking and gossiping against Sukhi in the above example constitute a hostile work environment, a form of workplace sexual harassment.
SCENARIO EXAMPLE 3 Sumedha is a Captain with the Indian Army. She has refused an offer made by a Senior Officer for a relationship. Sumedha has kept quiet about this experience, but thanks to the rumour-mongering by the Senior Officer, she has acquired a reputation of being a woman of ‘easy virtue’. Now she is being subjected to repeated advances by three of her senior officer colleagues. When she turns around and protests, she is singled out for additional physical training.
What is a Hostile Workplace Environment Sexual Harassment? In the above example, Sumedha’s refusal to the sexual advances of her Senior Officer, leads to her being subjected to rumours, gossip, character assassination, unwelcome sexual advances by other officers, and arbitrary disciplinary action. This constitutes Hostile Work Environment form of workplace Sexual Harassment.
SETTLED LEGAL POSITION
Apparel Export Promotion Council v A.K. Chopra: The Apex Court observed that considering the sensitivity surrounding sexual harassment of women at workplace, the courts should not get swayed by insignificant discrepancies or narrow technicalities and dictionary meaning while construing the term “molestation” in relation to sexual harassment against women. The Apex Court was considering the term “molestation” in the context of sexual harassment and the court held that it is not necessary that the perpetrator should actually molest a woman or touch her or commit actual assault but it is sufficient if every other act of the superior if viewed against moral sanctions, decency and if it offends the modesty of a woman, it shall fall within the definition of “sexual harassment”
S. Raju Aiyar v Jawaharlal Nehru University and others: The Division Bench of the Hon’ble Delhi High Court held that sexual harassment at workplace includes stalking and frequently calling complainant’s residence and creating an overbearing and intimidating situation and sending her emails with vulgar and filthy contents.
K. Pushparaj v The Controller and Auditor: The Central Administrative Tribunal upheld the enquiry report which had concluded that all the charges imputed are proved. The proved sexual harassment charges, among others, included using abusive and unparliamentary language against senior officers and vulgar words against lady auditors at workplace and showing of unwelcome sexually determined behaviour amounting to a demand or request for sexual favour pointing out to women officials. Blocking the passage staircase to obstruct Lady Senior Auditor and not allowing her to climb up or climb down the staircase to escape. He habitually misbehaved with lady officials making unwelcome, physical, verbal and non-verbal conduct of a sexual nature such as coming very close to them, making sounds of kissing, blowing cigarette smoke on lady officials, blocking the way of women, talking or making obscene and vulgar gestures at lady officials, demanding sexual favour, frightening them, creating an atmosphere of terror making the workplace unsafe. In such cases there is no scope for the disciplinary authority to show any sympathy to the Respondent, the CAT observed.
Mohan Kumar Singh v The Chief Manager of HRD Central Bank of India: The Patna High Court held that the charges of persistent pestering of lady Bank Officer by phone calls, sending her obscene photographs and finally assaulting her at the Bank premises having been proved in enquiry before Internal Committee, dismissal of Respondent from service on such findings is proper and his acquittal in criminal case will not assist him for a claim of his reinstatement.
Global Health Private Ltd. and Ors. v District Panchayat: The Hon’ble Madhya Pradesh High Court analysed section 2(n) and observed that the words “sexual harassment” must not receive narrow and pedantic meaning being an inclusive definition but to be perceived on the anvil of international conventions to which India is a signatory.
In this case woman employee’s request made through emails for relocation to ward off sexual harassment has not been considered. Instead, her work was squeezed, and she was marginalised and embarrassed and subjected to typical hostile work environment intimidating her future employment. She was made to feel insecure. Her probation was extended for 3 months more and there was no further appraisal thereafter and later her services are terminated. Such termination is stigmatic and not terminations implicit or, the court held.
Her complaint was not dealt with by IC as recorded by the Local Committee to whom the complainant had perforce to approach in the circumstances.
The Court therefore awarded ₹2500000/to the complainant as compensation for the pain and suffering, loss of reputation, emotional distress and loss of salary for no fault on her part, resulting in deprivation of right to live. Besides, payment of ₹50000/for not constituting IC in terms of section 26 of the Act.
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DISCLAIMER: the article presented here is only for sharing information with readers. The views expressed are of personal nature, shall not be considered as professional advice. In case of necessity do consult with professionals.
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