This informal CPD article, ‘Unpacking the Definition of Workplace Sexual Harassment in the Indian Legal Framework‘, was provided by Shambhavi Rai, Associate at Equilibrio Advisory, whose vision and mission is to provide legal remedies & psychological interventions for building Equitable & Safe Spaces.
Evolution and Adaptation of Workplace Sexual Harassment in the Indian Context:
Sexual harassment at the workplace first found recognition in the United States in 1980, when it was declared to be a violation of the law prohibiting employment discrimination.1 A decade later, the committee responsible for monitoring the implementation of the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter “CEDAW”) also specifically recognized sexual harassment as an impediment to women’s rights to equality in employment.2 Both provided expansive definitions of sexual harassment, covering unwelcome conduct - including words or actions - of a sexual nature.
When India ratified the CEDAW in 19933, women's rights groups and activists were fighting their own battle against sexual violence in the workplace- a woman working with the government at the community level as a saathin (friend) to stop child marriages was sexually assaulted by a group of upper caste men in her village, in the course of her work. When her criminal case against the accused resulted in acquittal on grounds of patriarchal and caste-based notions,4 five feminist groups got together and filed a public interest litigation in the highest court of the country asking the court to address sexual harassment of working of women in all workplaces.
The apex court, in this landmark case of Vishaka and Ors. vs. State of Rajasthan and Ors., relied on CEDAW Committee recommendations and held that workplace sexual harassment is a violation of a woman’s right to equality and non-discrimination, to live a dignified life, and to practice any profession of their choosing - rights that are provided to all women under the basic law of the country. The court also took it upon itself to issue certain guidelines for prevention and redressal of such harassment, to be applicable till the period in which legislation was drafted.
These guidelines formed the bedrock of the legislation that was passed in 2013, “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act” (hereinafter “POSH Act”).
Understanding the Definition in the Current Indian Legal Framework:
The POSH Act situates workplace sexual harassment as being violative of a woman's right to equality and freedom of employment and puts accountability on employers to prevent, prohibit and redress instances of such harassment. By doing so, the law shifts the focus from individual punishment and places the onus of addressing such conduct not on individual women, but on those in positions of power.
The POSH Act has also helped rid women of the limiting moralistic language of “outraging modesty” (under which they could file complaints under India’s criminal law), by providing an expansive definition of sexual harassment. It provides that all unwelcome conduct (whether directly or by implication), such as physical contact and advances, a demand or request for sexual favors, sexually colored remarks, showing of pornography, or other physical, verbal or non-verbal conduct of sexual nature, can constitute sexual harassment.5
It thus includes a range of unwelcome behaviors and actions of a sexual nature, including advances (such as standing too close to someone), remarks (such as sexual innuendos), demands and requests (such as asking someone out persistently despite their refusal) and other verbal or non-verbal conduct of a sexual nature (such as staring at someone) - conduct that generally tends to get normalized and thus rendered invisible in workplace settings, under the garb of being “unintentional” or “harmless fun”.
The POSH Act 2023
In this regard, reading the law’s emphasis on conduct being unwelcome, the Delhi High Court, in Dr. Punita K. Sodhi vs. Union of India and Ors. held that impact on the concerned woman, and not the intent of the perpetrator, will be the determining factor when deciding whether an instance constitutes harassment or not. This was based on the recognition that men, who are not placed in the position of disproportionately being victims of sexual violence, may not be able to fully appreciate the nuances of social setting or apprehension of violence that women may perceive in the same situation.
The POSH Act also recognizes that such conduct generally arises in workplace settings in a matrix of unequal power dynamics. Women have been systematically oppressed for generations, and have only in recent decades entered workplaces, which continue to traditionally be male dominated spheres. The law therefore provides that when submission to or rejection of conduct amounting to sexual harassment is the basis for a promise of preferential treatment or a threat of detrimental treatment at the workplace, commonly known as quid pro quo (this for that), that also amounts to sexual harassment.6
Further, such conduct can interfere with a woman’s work or create an intimidating or offensive or hostile work environment for her, which also specifically constitutes sexual harassment under the Act.7 Recently, in the case of Abrahim Mathai vs. State of Kerala and Ors., it was clarified that a hostile work environment may be created in various ways, such as by behaving unfairly or cruelly towards a woman, but such an environment must be specifically created due to conduct amounting to sexual harassment (unwelcome behavior of a sexual nature), for it to constitute sexual harassment under the law.
Concluding Comments:
The POSH Act thus defines conduct amounting to sexual harassment widely and inclusively, and subsequent interpretations have recognized the subjectivity of such conduct by focusing on impact on the woman over the intent of the perpetrator. It further provides women at workplaces with a platform where institutions are held accountable for ensuring a safe and healthy environment for them. In this regard, employers across workplaces must ensure that their focus is not just on complying with the law. They must work on creating a culture where employees respect each other's personal boundaries and feel safe in expressing discomfort if these boundaries are violated. Conduct amounting to sexual harassment, whether physical, verbal or non-verbal, should not be normalized or tolerated but called out and addressed, so that workplaces can truly be safe and inclusive.
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References:
- eCFR :: 29 CFR 1604.11 -- Sexual harassment. https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XIV/part-1604/section-1604.11
- General comment No. 1: Reporting obligation https://www.refworld.org/sites/default/files/legacy-pdf/en/1992-0/453882a422.pdf
- Press Release: Press Information Bureauhttps://pib.gov.in/PressReleseDetailm.aspx?PRID=1779252®=3&lang=1
- Bhanwari Devi: The rape that led to India's sexual harassment law - BBC News https://www.bbc.co.uk/news/world-asia-india-39265653
- Section 2 (n), POSH Act
- Section 2 (n), POSH Act
- Section 2 (n), POSH Act
