This Article is written by Harapriya sahoo, a Second-Year Law Student of SOA National Institute Of Law, Odisha

Abstract

Irrespective of their occupation, sexual harassment is a widespread issue that impacts all women worldwide. The issue that every nation is currently dealing with is the lack of safety and security for female employees in their own workplaces. Changes to the law are unlikely to succeed unless society as a whole is aware of this issue. In 2013, the Indian parliament established the "Vishakha Guidelines" to ensure the safety and security of female employees in the workplace. Articles 14 and 21 of the Indian constitution guarantee every citizen the fundamental right to equality and the right to live in dignity. India is a democratic nation. This paper attempts to give a wide view of the workplace harassment that working women face and the prevention with cases and the laws implemented in the whole country and the validity of it.

Keywords

Women, physical advances, sexual harassment, unwanted sexual advantages, verbal and physical

Introduction

Sexual harassment[1] is a behavior characterized by making unwelcome and sexual remarks or physical advances in the workplace or other social institutionsThe Equal Employment Opportunity Commission (EEOC) defines sexual harassment as any verbal or physical harassment that is related to sexuality and occurs in a business or educational setting. It also includes demands for sexual pleasure. Sexual harassment can be aimed towards a group of women rather than just one particular individual or specific sexual activity.. For example: making inappropriate jokes and comments about sex and private body parts. Using sex or gender-related name calling and inappropriate things that direct to sexuality, sexual development, gender identity, and a woman’s body or clothes, sharing notes, emails, texts, or posting online on it and it happens mostly at work, home, or in school. Any comments or actions that threaten, intimidate, or denigrate a person are considered harassment. Harassment is defined as an undesired, uninvented, and unwanted conduct that has no justification and creates inconvenience, alarm, and emotional anguish. Gender harassment and harassment related to pregnancy, including nursing, childbirth, or other associated medical issues, are also considered forms of sexual harassment. A manager, supervisor, coworker, or even a non-employee may engage in sexual harassment.

Wasilwa (2012) states that the best way to characterize sexual harassment is as unwanted activities that impact women's dignity at work. These acts can be physical, verbal, or non-verbal. Women's mental and physical well-being are impacted by this. Sexual harassment has numerous detrimental impacts, like as illness, infidelity, absenteeism, poor performance, and, most often, resignation from the position. Negative feelings of embarrassment, shame, and melancholy are experienced by women who encounter sexual harassment; this invariably lowers their sense of self-worth, job satisfaction, and safety.

The Indian Penal Code (IPC) defines and criminalizes "sexual harassment" in Section 354-A. According to the law, a man is guilty of sexual harassment if he makes sexually suggestive remarks, displays pornography against a woman's will, makes unwanted and explicit sexual advances, demands or requests for sexual favors, or makes other sexually suggestive statements. He may also face a fine or even three years of rigorous imprisonment.

Sexual harassment can take two forms:

1. Quid pro quo harassment: The Latin term for this type of behavior is "this or that." When employment, compensation, perks, title, position, or other possibilities for promotion or training are contingent upon accepting unwanted sexual advances, that constitutes a type of sexual harassment. This kind of sexual harassment occurs when you are asked to do anything by a superior employee or supervisor in exchange for job rewards or promotions. It is unlawful to engage in this harassment, whether it is overt or covert.For example: when the manager asks for sexual favors in return for approving a promotion or not demoting from the job for not giving any inappropriate favors. If a woman feels pressurized to have sexual contact and embarrassed to say ‘no’ or is afraid of getting punished if she denies the sexual contact then this could be a form of illegal harassment.

2. Harassment in a hostile environment: This type of sexual harassment happens when the victim is subjected to abusive or hostile treatment at work. Discrimination on the basis of age, sex, handicap, ethnicity, color, and religion is included in this harassment. This unwanted behavior may turn into a crime, but for harassment to qualify as such, it must be severe enough or widespread enough that a reasonable person in the victim's shoes would perceive it as abusive and hostile. There are two ways that sexual harassment in a hostile work setting might occur.

i) When the co-worker makes you the target of unwelcome sexually demeaning jokes, comments, repeated ill-gestures, offensive touching, intimidating behaviors, jokes or pranks, or pornographic material. Those acts are directed at you because of your gender status.

ii) The other way hostile work environment sexual harassment occurs when your supervisor asks for favorable conditions to give promotions. This can include discriminatory hiring procedures, wages, promotions, job evolution, work assignments, and termination.

Some forms of sexual harassment include:

● Making conditions for employment or advancement dependent on inappropriate sexual favors, either explicitly or implicitly.

● Physical act of sexual assault.

● Request sexual favours.

● Verbal harassment which is sexual, including jokes referring to sexual acts or sexual orientation.

● Unwanted physical touch.

● Unwanted touching or physical contact.

● Discussing sexual relations/ stories/ fantasies at work, school, or in other inappropriate places.

● Unwanted sexually explicit photos, emails, or texts.

● Saying bad things about or making fun of someone or all people of a certain gender (i.e. women and gay people)

● Using gender-based or sexual orientation-based slurs.

● Making vulgar, offensive, or explicit jokes about sex or sexual acts.

● Gossiping about someone’s personal relations and sexual life.

● Making inappropriate comments about someone’s body and appearance.

Note that it still counts as harassment even if the conduct is not aimed at someone specifically. For instance: if a lesbian person hears their colleagues making a bad joke about lesbians in general then this kind of behavior still be considered harassment even if they were not talking about him. For an act to be considered sexual harassment the thinking of the victim about the act is important. It doesn’t matter whether the person who is doing the harassment is thinking that the act is harmless or not sexual enough. It still is harassment if the woman finds the act offensive and not welcoming. It still counts as harassment even if, in the moment the victim didn’t say ‘NO’ or ‘STOP’. For example, if the harasser is the supervisor, then the employee can be afraid to speak up and say ‘no’ as that can impact her job.

Difference between sexual harassment and sexual assault

Many forms of unwanted verbal, physical, and sexual attention are collectively referred to as sexual harassment.The Indian Penal Code, 1860 defines it in section 354-A. Sexual assault is defined as sexual conduct or contact that takes place without the victim's consent, frequently involving physical touch. Although sexual harassment is against civil law, as you have the right to work and study without interference, sexual assault is against criminal law, and the acts themselves are typically illegal. For instance, penetrating the victim's body is considered rape, as is unwelcome sexual contact, attempted rape, and so on. Using criminal force on a woman in order to violate her modesty is known as sexual assault.According to section 354 of the Indian Penal Code, there is an obligatory fine in addition to a minimum of one year in jail and a maximum of five years in prison. The Indian Penal Code's Section 509 prohibits using words, gestures, or actions with the intent to denigrate or violate a woman's modesty.

What are the laws?

Legally, workplace sexual harassment is considered a form of sex discrimination, so sexual harassment is illegal all across the country. To tackle the danger of sexual harassment of women in the workplace, the Indian parliament has passed the sexual harassment of Women at the Workplace (Prevention and Prohibition and Redressal) Act,2013. This act clearly states that ‘No woman shall be subjected to sexual harassment at any workplace. This POSH Act defines sexual harassment as any unwelcome physical, verbal, or non-verbal conduct of sexual act including physical contact, demand or request for sexual favors, making sexual remarks, jokes showing pornography.

How was the POSH Act formed?

While attempting to stop a one-year-old girl from being married, Bhanwari Devi, a social worker for the Rajasthani government's Women's Development Project, was gang-raped in 1992 by five men. The Supreme Court issued "Vishakha Guidelines" in this case. The Sexual Harassment of Women in the Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was based on these standards. The Supreme Court also drew strength from various international conventions, such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was ratified in 1993, and from several provisions of the constitution, such as Article 15, which protects against discrimination on the basis of race, religion, sex, caste, and place of birth.

Sexual harassment is defined by the POSH Act as any unwanted physical, verbal, or nonverbal conduct of a sexual act, such as making sexual remarks, demanding or requesting sexual favors, making physical contact, making jokes that depict pornography, or engaging in any other unwanted physical, verbal, or nonverbal act that is sexual. It enumerates five situations that, if they are related to the activities listed above, may qualify as sexual harassment:

● Implied or explicit promise of better treatment in employment.

● Implied or explicit threat about present or future employment status.

● Humiliating treatment that is likely to affect health or safety, and

● Creating intimidating offensive or hostile work environment.

Under this Act, an employee is defined are including all women employees, whether regularly employed, temporarily, contractually on a daily wage basis, or even the interns and those who are employed without the knowledge of the manager, principal or employer can seek redressal to sexual harassment in workplace.

As per the act, the workplace includes:

Government organizations offer services that are commercial, vocational, industrial, educational, sports, supply, sale, distribution, or service; these include hospitals or nursing homes, sports institutes, and places visited by the employees, such as transportation and housing. They also include government companies, corporate companies, cooperative societies, private sectors, organizations, NGOs, trusts, service providers, etc.

Key elements of workplace sexual harassment

● circumstances that appear harmless at first yet turn out to be improper and unprofessional.

● It's critical to keep in mind that sexual harassment at work is inappropriate and sexual, and that everyone experiences it differently.

● It is plausible that women may experience harassment either once or repeatedly.

● It is essential to identify and distinguish between acceptable and inappropriate sexual acts and behavior in order to support the prevention of sexual harassment in the workplace.

● It is crucial to keep in mind that each case is distinct and needs to be evaluated within its own context, taking into account the surrounding circumstances.

Impact of inappropriate behavior

The impact of sexual harassment in the workplace is an injury to the equal rights of women. Many times, a woman doesn’t disclose the harassment she faced in his workplace, and that puts her in long-term depression, and always feels anxious to face people in general. She will always feel afraid to go into crowds and outside. Workplace sexual harassment can have such negative impacts on women in general:

● Decreased work performance

● Loss of promotional opportunity

● Being objectified

● Defamation

● Job and career consequences

● Being publicly sexualized

● Defamation

● Having relocate

● Weakened support network

Sexual harassment is a subjective experience.

In Dr. Punita K. Sodi v. Union of India & Ors. W.P.(c) 367/2009& CMS 828, 11426/2009, the Delhi High Court rendered a decision. Accepting that sexual harassment is a subjective experience, the High Court of Delhi held on September 9, 2010, that "We therefore prefer to analyze harassment from the (complainant's) perspective." To fully comprehend the perspective of the complainant, it is necessary to analyze the disparate viewpoints held by men and women. Many women may find offensive behavior that many males find acceptable. Some sexual harassment is often perceived by men as "harmless social interactions to which only overly-sensitive women would object".Additionally, it was stated that "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." This is a characteristically male viewpoint that portrays sexual harassment as relatively harmless entertainment.

Sexual harassment: case laws in India

There are various cases and judgments by the Hon’ble Supreme Court of India some are given below.

1) Apparel Export Promotion Council v. A.K. Chopra[2]

The Supreme Court in this case held that sexual harassment is gender discrimination against women and also said that any act or attempt of molestation by a superior will be taken as sexual harassment.

2) Visakha & others Vs. State of Rajasthan & others[3]

In this case, the Supreme Court laid down the guidelines that recognized the act not only as private injury to an individual but also as a violation of her fundamental right. These guidelines are significant as for the first time sexual harassment is identified as a separate category of legally prohibited behavior. These guidelines are subjected to all workplaces.

3) Medha Kotwal Lele & ors. v. Union of India & ors[4]

This case helped Vishakha’s case to implement the guidelines successfully by issuing notices to all the states and UTs to impart the necessary steps.

Preventive measures to curb sexual harassment[5]

Changing societal attitudes is a prerequisite for enacting any legislation pertaining to women. This has the effect of protecting from undesired and unwanted sexual conduct. This preventive measure ought to be applied to all employee levels, and it ought to be verified that the workplace is inclusive of all female employees. Every female employee should have access to well-arranged panels where she may speak with authorities directly. These committees must to make sure that female workers don't hesitate to voice concerns about issues they are having in the workplace and that they act promptly. Women should not be afraid to discuss sexual harassment with others, and they should notify the committee right away.

The complaint must remain private, according to the committee. All organizations ought to provide their female staff with sexual harassment awareness training. Every worker has to be aware of their legal obligation to ensure the safety of female coworkers.

What can we do when we witness sexual harassment?

There is a term ‘bystander intervention’ which describes stepping in to help when you see someone who might be in danger or at risk of sexual assault. This can be a helpful strategy if you see sexual harassment. You don’t always have to be a hero for someone’s life, you can help or intervene in a way within your comfort level and appropriate to the situation. When you choose to step in and help someone from getting harassed, you are making an innocent life secure, but still your security matters first. There are some steps given below to take if you see someone getting violated.

● Make a distraction: Try your hardest to stop the harassment that is either currently occurring or about to happen, but make sure you are not endangering yourself in the process. Avoid drawing their attention and call the authorities for assistance if the situation becomes violent.

● Ask directly: If the circumstance emerges, speak with the victim one-on-one, inquire as to whether they are experiencing harassment at work or in school, and offer to go with them whenever they have to encounter the harasser. Accompany the person if they are becoming too afraid to stroll by themselves.

● Think about authority: It is always okay to step in and help the harassed party, as well as to involve an authoritative figure in the situation. Asking for assistance from a coworker, security officer, bouncer, or resident assistant in your dorm is a good idea because they frequently offer to assist.

● Involve others: It can be difficult to intervene on your own, but if you are certain that you cannot assist alone or if your safety is at risk, then enlist the aid of friends, coworkers, or other acquaintances.

Suggestion & Conclusion

In India, sexual harassment at work is a very prevalent occurrence. In this patriarchal society, women constantly experience oppression, regardless of how society is changing. The most crucial factor in ensuring women feel safe and secure in the workplace is for people's perspectives to shift. To address this matter, the government ought to establish a distinct unit and treat each case with gravity. Given that women make up the majority of the workforce and are an integral component of society, the government is required to ensure their safety at work. Employers and supervisors need to come up with new plans to shield female employees from malevolence. The government and employers should be mindful of gender disparity and discrimination in the workplace. While the new regulations and separate legislation may not bring about gender equality, they will guarantee and offer a safe atmosphere for working women, and that is something the government should recognize. This will remove or lessen glitches created by this detrimental breach of the law and also provide assistance to women in their struggle. In conclusion, I would want to emphasize that women should not allow themselves to be oppressed and should speak up if they experience harassment or mistreatment at work. Now is the time to speak up against all the injustices that have been done to them

References

[1] Shubhada Sonwalker and Jacob Michael,Sexual Harassment of women at workplace (Prevention, Prohibition And Redressal) Act, 2013, 20th February,2020,ipleaders, Sexual Harassment Of Women At Workplace Act, 2013 (ipleaders.in), last visited on 9th september 2024

[2]Apparel Export Promotion Council v AK Chopra (1999) 1 SCC 759

[3] Visakha v State of Rajasthan AIR 1997 SC 3011

[4] Medha Kotwal Lele v Union of India (2013) 1 SCC 297

[5] Viji, “Vikaspedia Domains” (Workplace Sexual Harassment, May 23, 2023) , Vikaspedia, <https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/policies-and-acts-1/sexual-harassment-of-women-at-workplace/workplace-sexual-harassment> accessed September 26, 2024.