Sexual Harassment at Workplace and PoSH Act

Abstract

Sexual harassment is itself a serious and heinous crime which shouldn’t be tolerated by anyone anywhere, be it at school, home or the workplace. It is important that people understand the concept of sexual harassment and sexual harassment at the workplace. It is an unwelcomed sexual behavior that is directed towards a person without their free consent and makes them feel uncomfortable. Certain laws also define what acts constitute as sexual harassment and the punishment for it. There has been an increase in the rates of sexual harassment especially at the workplace. In India, cases of sexual harassment are reported under the PoSH Act. This act requires that all employers must form PoSH committees so that women employees can be protected from such offense and can seek redressal. Sexual harassment at the workplace can happen to anyone irrespective of gender, caste, religion, nationality or working status. However, women are more likely to fall victim. With more awareness on this topic, many victims are also coming forward. One such example is the MeToo Movement. The impact of sexual harassment at the workplace can be severe and adverse in nature.

This paper covers most of these issues with examples and cases with the scope that it is able to provide the awareness needed and reach to a number of people.

Keywords

Sexual harassment, workplace, victim, women, #MeToo, PoSH

Introduction

Sexual harassment can be described as an unwanted or undesirable sexual behavior or advances towards any person in such a way that he or she feels uncomfortable, humiliated, scared, upset or any other feeling of disgust. It is a form of sexual violence and it is non-consensual. This may extend to other severe sexually violent activities like rape and sexual assault.

According to Section 354(A) of The Indian Penal Code (IPC)[1], a man is held guilty of the offence of sexual harassment, if he does the following:

1.         Committing any physical contact and advances that involve unwelcoming and explicit sexual overtures, or

2.         Demanding or requesting sexual favors, or

3.         Showing pornography without a woman’s consent, or

4.         Making sexually colored remarks.

Any person, be it a man or a woman or people belonging to the LGBTQ+ community, could have an unfortunate event of being sexually harassed, or could also be the harasser. However, in most cases, it’s the women who fall victim to this crime and it’s the men who commit it. Sexual harassment can happen between people of the same sex or different sexes. Sexual harassment is not just about nonconsensual sexual behavior. It is about the harasser being hostile towards the victim and having a dominating position over the victim and misusing that power.

A workplace is supposed to be one where each and every employee not only gets the incentives they deserve but also have an environment where they are respected and treated with dignity, irrespective of their gender, race, religion, caste, nationality, ethnicity, etc. In a male dominated society like that in India, it had become quite crucial for women to take a stand for themselves and to work in their area of choice and gaining financial independence was one such aspect. The crimes against women at the workplace have been rapidly increasing.

The Prevention of Sexual Harassment (PoSH) at Workplace Act of India came into force in 2013, provides that every organization shall define their sexual harassment policies, preventive measures and the process and procedure to deal with it. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act helps enable a safe and supportive working environment that respects women’s rights to equality in all spheres. The Act was able to let working women come forward to address such issues without fear or hesitation.

Research Methodology

This paper is largely based on analysis of data collected from Indian newspapers. They are:

1.         The Hindu

Newspapers cover almost most areas of a certain topic with statistics that can be reliable and verdicts and decisions of courts in a summarized form and a better understanding of the PoSH Act. Moreover, they include various reports and articles about the topic. Thus, newspapers were a considerable source for research for this paper.

The online research was done through the Google search engine. The Internet is a platform that provides a wide range of topics to go through. One might get hold of certain areas of topics which might not be available elsewhere.

An online survey was also conducted regarding issue[2].

Review of Literature

Companies are increasingly developing their norms and policies in regards to almost all aspects and building a reputation in the competitive market. In all of this, many a time, they get negligent on the matters of protection of rights and dignity of the employees, especially the female employees. While creating a safe working space for all in the organization, it must also be ensured that sensitive matters of bullying and sexual harassment are reported and given proper attention.

According to a Forbes India analysis based on company annual reports, 147 cases of sexual harassment at the workplace are pending out of a total of 772 complaints in the year ending 2023[3]. Thus, the rise in pending cases is a result of a rise in complaints.

In the Phaneesh Murthy case[4], the accused had to resign from the company he worked for after his secretary accused him of sexual harassment.

In another case[5], the accused was booked under IPC sections 354(A), 376, 376(2) (k) on the grounds of sexual assault by a female colleague.

Sexual Harassment at Workplace

Sexual harassment at the workplace can be categorized in 2 ways:

1.         ‘Hostile work environment’ sexual harassment – This further can happen in 2 ways:

i.          When an employee is made a target and sexually harassed because of their sex. This unreasonably interferes with the employee’s work performance, thus creating an intimidating, offensive and a hostile working environment. Some examples of it are gender or sexual jokes, offensive remarks about the body, unwelcome sexual advances, inappropriate gestures, sharing pornographic materials etc.

ii.         The other way this happens is if the employer provides less favorable conditions of employment to one employee and a better one to other employees of different sex. One major instance is the pay gap.

2.         ‘Quid pro quo’ sexual harassment – quid pro quo means ‘something for something’. This happens when an employee is pressured to meet the sexual demands or favors of a supervisor or other manager, in return for employment benefits. An employee’s job security may depend upon fulfilling the sexual favors of their employer[6].

Even in today’s time, when the condition of women has improved to a great extent, there are still those who are forced to not speak up against their abuser, be at home, school, work or any other place. At times, it may come from the family of the survivors to withhold the complaint for they believe that their dignity might be harmed. It may also be from the fear of the abuser or losing the job and financial security. It is worse in cases when the victims of sexual harassment at the workplace by their own will choose not to raise a voice against their abuser because they are afraid they won’t be understood.

#MeToo

The MeToo Movement is a global and survivor led social movement against sexual violence which creates a pathway to healing, justice and action. It was necessary for the victims of sexual violence to know that they are not alone in their fight and many others who had the unfortunate event to become a victim to it, joined to support. MeToo Movement also helped those who didn’t raise their voice against such an offense previously, to come out bravely. This movement also received tremendous encouragement and support from many celebrities and idols. The #MeToo hashtag has been immensely trending on social media platforms and its impact is such that people come out to protest for it and many big organizations have to formulate their policies in respect of it. #MeToo was started by Tarana Burke in 2006, who has been an activist and advocate for women to support and fight against such offenses since. #MeToo gained popularity in 2017 when actress Alyssa Milano shared her experience of sexual abuse against Harvey Weinstein[7]. The MeToo movement had a great impact globally on the lives of almost every individual. Men coming forward in support of the MeToo movement proved that it was not about women v. men or men hating but a step of action towards injustice and patriarchy. There were also campaigns like HeForShe where not only men but also people of other genders stood in solidarity with women to bring a positive change in society. The Women’s March in 2017 helped a great deal in the MeToo Movement.

Actress Tanushree Dutta accused another actor Nana Patekar of harassing her on the sets of their movie ‘Horn, OK Please’. Dutta sought help from the Maharashtra Women’s Commission and filed an FIR against Patekar. Later, Mumbai Police closed the FIR on grounds of lack of enough evidence to prosecute Patekar.

As a result of the MeToo movement, many companies provide more intensive rules to prevent workplace harassment and have implemented a ‘zero tolerance’ towards the offenders. However, there is still a long way to go.

Impact of sexual harassment

The trauma, victims of sexual harassment go through, especially at workplace where they expect their dignity to be respected, is unimaginable. Many of them are shamed by others or made to feel ashamed about what they have experienced when they seek help. It is important to consider that every victim’s experience and impact might be different but it should go unnoticed. Sexual harassment at the workplace results in victims being forced to leave their jobs and go through their fight all alone. At times, the situation may be so bad that the victims are left with no choice but to take the extreme step of ending their lives. The impact of such an offense may be on one’s physical or mental health, employment, financial position etc.

1.         Impact on health – Sexual harassment mostly affects a person’s mental health. The victims get devastated to such an extent that they develop serious mental health conditions like anxiety, trauma or PTSD (Post Traumatic Stress Disorder), depression, low self-esteem or confidence and other sort of negative impacts. Considering physical health, victims may also get injuries from such violence which may further lead to severe health conditions like chronic diseases, or death at times. Resulting from the mental trauma one has gone through, one might also develop conditions that would be harmful to their health such as obesity from emotional eating, hypertension, high or low blood pressure etc.

2.         Impact on employment – Sexual harassment at the workplace downgrades a victim’s overall performance due to fear of the harasser or experiencing that unfortunate event again or being shamed by others or losing the job. As a result, this also affects the overall performance of the company and its reputation. If companies cannot take necessary measures against such offenses for their employees, then at least they can do so for the sake of protecting themselves.

3.         Impact on financial needs – The negative impacts on performance further influences the financial status. People of the vulnerable groups especially were able to gain their financial independence through work. Being unsafe there may take away this essential need[8].

Post Pandemic Situation

With the global outbreak of the coronavirus pandemic, most companies indulged in work from home environment. It was a relief for many. Not for the reason of doing less work or at their convenience but because of not being harassed at their workplace. There was a reduced number of cases of sexual harassment at the workplace. However, this did not stop the harassers from committing such an offence. Many women employees complained about being sexually harassed even while working from home. Thus, sexual harassment does not necessarily require in-person contact. Many times, working remotely causes less reporting of such crimes because the concept is not clear. This indirectly gives an unfair advantage to the harasser to abuse.

Things getting back to the old normal, many companies have made it compulsory for employees to resume their work from offices which leads to resuming sexual harassment in physical offices. However, people are now more aware about this issue.

PoSh Act

In 1992, Bhanwari Devi, a social worker with the Women’s Development Project of the Rajasthan Government was gang raped by five men after she tried to prevent the marriage of a one-year-old girl. The SC observed that there was no law enacted that provides for effective enforcement of basic human right of gender equality guarantee against sexual harassment at workplaces. In 1997, it laid down a set of guidelines christened the Vishakha Guidelines, to act as a statute till a law could be enacted[9].

In 2007, the Protection of Women against Sexual Harassment at Workplace Bill was introduced by the then Women and Child Development Minister, Krishna Tirath. The Bill was amended and came into force on 9th December 2013, as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) or PoSH Act.

The term ‘sexual harassment’ as defined by PoSH, includes any unwelcome sexual behavior such as demanding sexual favors, making colored sexual remarks, showing pornography and any other unwelcomed sexual manner through physical, verbal or non-verbal means. It also lists certain circumstances that constitute as sexual harassment:

1.         Promise of preferential treatment in work, implied or explicit

2.         Threat of harmful treatment in work, implied or explicit

3.         Threat regarding current or future employment status, implied or explicit

4.         Interference with work or creating an intimidating, hostile or offensive environment at work

5.         Humiliation which may likely affect one’s safety or health.

The term ‘workplace’ has also been defined by the PoSH Act. It deals with the concept of an extended workplace, showing that harassment may not necessarily happen in the workplace itself. This means that the definition of workplace according to PoSH is not only limited to traditional offices but also nontraditional workplaces and places visited by employees for work.

Under the Act, an employee is an individual who works on a regular, temporary, ad hoc basis or daily wage basis, as a trainee, intern or an apprentice or employed without knowledge of the principal employer, whether remunerated or not[10]

PoSH Act enables any women employee can seek redressal against sexual harassment at the workplace.

In one case[11] The constitutionality of the PoSH Act was challenged. The petitioners argued that the Act was insufficient to provide adequate remedies to such victims. SC rejected the petitioner’s plea and held the PoSH Act constitutional and sufficient for the protection of women against sexual harassment at the workplace. It also held that the Act was in line with India’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

It has become essential by law for an employer to form an Internal Complaints Committee (ICC) if they have more than 10 employees. This committee can be approached by any woman employee to file a formal sexual harassment complaint. This committee has to be headed by a woman, have at least two women employees, to include a third party like an NGO worker with five years of experience, aware of sexual harassment.

The Act also requires every district in the country to create a Local Committee (LC) so that women workplaces with less than 10 employees and from the informal sector which includes domestic workers, home-based workers, etc., can complain.

A woman can file a written complaint to either of the bodies within three to six months of the sexual harassment incident. The issue can be settled by conciliation between the complainant and the respondent, which cannot be a financial settlement. Another way is that the particular committee could initiate an inquiry and take necessary actions accordingly. The employer has to file an audit report with the district officer on the number of sexual harassment complaints filed and actions and steps taken in regards to it at the end of the year. The employer is liable to pay a fine of up to Rs. 50,000 in case they refuse to abide by any provisions of the Act. This fine increases for a repeat offense[12].

Challenges to the Act

There are a number of national sports federations in India that have failed to keep an ICC to date. In the current scenario, wrestlers have been protesting in Delhi against Brij Bhushan Singh, who is the head of the Wrestling Federation of India (WFI) for acts of sexual harassment. It was also seen that there was an improper constitution in cases where the ICC was established. This means that there was either an inadequate number of members or an absence of an essential third party. However, since the time the PoSH Act came into force, many legal experts, stakeholders and former members of such committees have raised concerns regarding its implantation[13].

Other hurdles to the Act include the harasser may not be held satisfactorily accountable and vague and not specific regarding the person who is in charge of ensuring that the workplace complies with the Act.

Almost the majority of India’s women workers are in the informal sector. Implementation of the PoSH Act in the informal sector is not as accessible as it is in the formal working sector.

Suggestion

The very thing a person being sexually harassed at the workplace is to tell the harasser to stop. Any gesture, indication, behavior, phrase, or even a single word ‘no’ is enough to prove that one is uncomfortable and the other person must stop.

When a person can in no possible circumstance get out of this situation, they may report it to the necessary management authority. Every organization is required to have PoSH committees, accordingly, where women can file complaints against such offenses and seek help.

Victims can also get help from other sources like NGOs, activists, social workers, journalists, lawyers and the judiciary in order to make their voices heard and take a stand not only for themselves but also for others faced with such issues and to prevent anything of such sort from happening again to anyone.

They can also seek support from their family and friends and certain counseling services. These might help in maintaining one’s health in a stable state.

Conclusion

It was a great initiative by the Government to introduce the PoSH Act for the protection of women against sexual harassment at the workplace. It must not be forgotten that it took a person to fall victim to such a heinous crime for this Act to come into force. As the duty of the lawmakers, they should have provided such laws which would have protected even this particular person from facing such consequences at her work.

From the judgment on most of the cases under PoSH, it can be said that the judiciary of the country has not failed us. However, there is still a long way to go regarding the provisions of the Act, the victims’ position and the punishment to the harasser.

As for The PoSH Act, it has, to a good deal helped those who were a victim of sexual harassment at the workplace and prevented many from becoming a victim. There are some provisions which need some modifications in accordance with the current times and conditions. A stricter form of punishment should be applied towards the harasser.

Name – Sara Hussain Afzal

College – ISBR Law College, KSLU (Bengaluru)


[1] LexisNexis, The Indian Penal Code, 80 (LexisNexis 2023)

[2] https://docs.google.com/forms/d/1KY9yfGHs6Pdl6WrHr7FmAgmuu9ayw1yZLWBDjcWVef0/edit#responses.

[3] Nasrin Sultana, India Inc sees alarmingly high unresolved sexual Harassment cases at workplace, Forbes India (Oct. 17, 2023, 12:59 PM), https://www.forbesindia.com/article/take-one-big-story-of-the-day/india-inc-sees-alarmingly-high-unresolved-sexual-harassment-cases-at-workplace/89043/1.

[4] Sara H., India’s History Of Sexual Harassment At Workplaces Via 6 Major Cases, Homegrown (June 8, 2021, 5:53 PM), https://homegrown.co.in/homegrown-explore/india-s-history-of-sexual-harassment-at-workplaces-via-6-major-cases.

[5] Tarun Tejpal v. State of Goa, SLP no 3149-3150, 2014

[6] Legal Voice, https://legalvoice.org/sexual-harassment-at-work/#:~:text=Should%20I%20Do%3F-,Tell%20your%20harasser%20to%20stop.,person%20with%20decision%2Dmaking%20authority (last visited Nov. 12, 2023)

[7] Sherri Gordon, The #MeToo Movement: History, Sexual Assault, Statistics, Impact, verywellmind (April 28, 2023), https://www.verywellmind.com/what-is-the-metoo-movement-4774817.

[8] Respect at Work, https://www.respectatwork.gov.au/individual/understanding-workplace-sexual-harassment/impacts-workplace-sexual-harassment (last visited Nov. 13, 2023)

[9] Vishakha and others v. State of Rajasthan, AIR 1997 SC 3011.

[10] Diksha Munjal, What is PoSH Act and why has the Supreme Court flagged lapses in its implementation?, The Hindu (May 21, 2023, 12:11 PM), https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece

[11] Medha Kotwal Lele & Ors. v. Union Of India & Ors., (2012) 9 SCR 895

[12] Diksha Munjal, What is PoSH Act and why has the Supreme Court flagged lapses in its implementation?, The Hindu (May 21, 2023, 12:11 PM), https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece

[13] Diksha Munjal, What is PoSH Act and why has the Supreme Court flagged lapses in its implementation?, The Hindu (May 21, 2023, 12:11 PM), https://www.thehindu.com/news/national/explained-the-indian-law-on-sexual-harassment-in-the-workplace/article66854968.ece

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