India: A Look At Sexual Harassment Versus Sex-based Discrimination: What Separates The Two

Would being treated differently because of your sex amount to sexual harassment? When a complaint has been reported, many times, the person or team receiving such complaints is confused about where the lines are drawn and how such incidents can be categorised. What is “sex-based discrimination” or “gender discrimination”? What amounts to “sexual harassment”? Can these terms be used interchangeably? Or do they overlap? Understanding the difference between the two can help organisations tackle incidents of hostile workplace behaviour appropriately ensuring a healthy and safe workplace.

Below are a couple of illustrations to understand this better –

In the two scenarios played out above, one amounts to sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSHAct”) and the other amounts to sexist behaviour. In this article, we set out to explore –

• the subtle nuances between the two;
• how organisations can deal with these situations; and
• ways to foster a healthy work environment.

The traditional notion of a ‘workplace' has changed rapidly over the years. It is not restricted to the physical office structure or building where one goes to work but extends to and is increasingly a reference to the environment one works in. This ‘work environment' includes physical infrastructure, policies and processes, rewards and recognitions, work culture and, therefore, the overall employee experience. And so, when we hear people refer to an organisation as “a great workplace” or “not a great workplace”, the reference is to this employee experience.

Fostering a healthy work environment has increasingly become a priority to organisations, and workplace discussions are now going beyond sexual harassment at the workplace and placing greater emphasis on actions and words which, though have been normalised in everyday life, interfere with an employee's ability to work efficiently or create an uncomfortable atmosphere at work. These issues are long overdue.

The subtle nuances between the two –

What is sexual harassment? Any conduct or behaviour that is of sexual nature and is unwelcome. This includes -

1. physical contact and advances;
2. a demand or request for sexual favours;
3. making sexually coloured remarks;
4. showing pornography; and
5. any conduct, behaviour or circumstance that is harassing in nature and supports one's own or another person's unwelcome conduct or behaviour of a sexual nature.

Many times, the person who is subjected to sexual harassment chooses to be silent about the objectionable behaviour simply because he/she/they are uncomfortable telling someone that their behaviour is objectionable. Therefore, a conduct or behaviour can be unwelcome even if the person subjected to the objectionable treatment did not specifically demand that the conduct or behaviour stop. Also, when determining whether a particular conduct or behaviour was unwelcomed, the point of view of a person who is subjected to that conduct or behaviour (i.e., reasonable perception of how the recipient felt) is of greater relevance than the intentions of the alleged harasser.

What is sexism or sex-based discrimination?

Any conduct or behaviour that shows prejudice or discrimination based on gender and is usually based on stereotypical perceptions of gender.

And while sexism against women is openly talked about, it affects everyone regardless of their gender. For example, ridiculing men who cry is sexist behaviour.

Isolated incidents of gender based discrimination is not “sexual harassment”. However, if such an incident is accompanied by any conduct or behaviour of sexual nature, for example rejection of a sexual favour, it would constitute sexual harassment.

What is unprofessional behaviour?

Any conduct or behaviour that is disrespectful, offensive, inconsiderate or impolite is unprofessional behaviour, including any instance of sexual harassment and sex-based discrimination.

Therefore, while not every off-coloured remark may be sexual harassment or a sexist remark, it would be deemed unprofessional behaviour.

Whether a conduct or behaviour is sexual harassment and/or sexist behaviour or neither can be determined only by the specific facts and circumstances of the situation.

How organisations can deal with these situations –

While the POSH Act provides a set of rules which is for the benefit of women and requires organisations to constitute an Internal Complaints Committee (“ICC”) for the redressal of any complaint of sexual harassment by a woman, it is advisable for organisations to draft a gender-neutral POSH Policy to maintain a safe work environment for not only women but those who identify with genders apart from female. Limiting a POSH Policy only to women would prevent a redressal system which is accommodating to not only women but also men and members of the LGBTQIA+ community who don't identify with either of the genders.

Further, even unprofessional behaviour not amounting to sexual harassment, if ignored or left unresolved, can vitiate a respectful work environment. Considering such behaviour as “not too severe” or “harmless” could, in turn, lead to many problems, including sexual harassment. Typically, such complaints are looked into by the Human Resources (HR) department or a separate team constituted within the organisation to inquire into such incidents. However, it is not uncommon for the ICC to get complaints of harassment which are non-sexual in nature. But the ICC derives its powers from the POSH Act, and therefore, where there is no evidence before the ICC that the complainant has been a victim of sexual harassment, the complaint will fall outside the purview of the ICC. In such a case, while the ICC cannot draw conclusions and make any recommendations, it can forward any such complaint it has received and direct the complainant to the right team within the organisation that can look into such complaints.

An organisation should not wait until such behaviour gets out of hand or a formal complaint is filed. Any unprofessional behaviour, if not handled at the initial stages itself, can give the employees a perception that such behaviour is tolerated. Consequently, this could lead to more instances of unprofessional behaviour.

Ways to foster a healthy work environment –

Every individual has the right to a safe and healthy work environment. When an organisation tolerates unprofessional behaviour, it could severally affect the morale of the employees, reduce productivity and increase employee turnover. Following are a few ways in which an organisation can encourage and create a flourishing work environment:

1. Put in place an Open-Door policy which encourages open communication and discussions around any employee concerns.
2. Every employee should read, understand and familiarise themselves with the organisation's policies and processes on how different types of complaints are handled and redressed within the organisation.
3. Discourage any non-sexual remark that is inappropriate or derogatory, or offensively stereotypical.
4. Encourage conversations pertaining to the work environment, including problems regarding sexual harassment and sexist behaviour.
5. Conduct regular workshops and discussions regarding unprofessional behaviour, including gender issues (and remember, gender is not just about women).
6. Conduct team-building activities and brainstorm on ways to improve the existing work environment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.