The 21st century has witnessed a remarkable transformation in the way society perceives and addresses matters of gender equality and harassment. With increased awareness and advocacy, there has been a growing recognition that harassment is not merely a consequence of individual action, but is often rooted in systemic gender inequalities. Efforts to combat this issue have paved the way for transformative changes in policies and legal structures aimed at fostering a safer environment for all genders. Out of the various types of harassment faced by individuals sexual harassment is a deeply concerning issue that affects individuals across various contexts, most notably in the workplace. It involves unwelcome advances, comments, or behaviors of a sexual nature that create an intimidating, hostile, or offensive environment for the victim. Such acts not only violate an individual's personal boundaries but also undermine their dignity and psychological well-being. Sexual harassment can manifest in various forms, including verbal, physical, or visual, and it can happen to anyone, regardless of gender or position.
The Australian Human Rights Commission defines Sexual Harassment as "an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances".1 In simple words, sexual harassment is a prevalent social problem that affects individuals across various demographics. It encompasses unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that interfere with an individual's work or academic performance, or create an intimidating, hostile, or offensive environment. It is not limited to a specific gender or setting; rather, it transcends socio-economic boundaries and organizational hierarchies.
The workplace, hailed as a space for professional growth and collaboration, which seeks ethical behavior and transparency but unfortunately, can become a breeding ground for harassment. This is where the concept of 'sexual harassment at the workplace' comes into play. It refers to a situation wherein individuals are subjected to unwarranted sexual attention or advances within the confines of their employment. Such behavior not only infringes upon an individual's dignity but also has far-reaching psychological and emotional consequences.
In the context of Indian laws, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 20132 or the POSH Act stands as a cornerstone for safeguarding women against workplace harassment. The law mandates the establishment of Internal Complaints Committees (ICCs) to provide an avenue for complaints and redressal. Despite this commendable step, men and transgender individuals remain underserved by explicit legal provisions.
This article delves into the realm of preventing sexual harassment and advocates for gender neutrality as an essential component of comprehensive legal frameworks. It begins by reviewing the current provisions in place to curb sexual harassment and the existing gender-specific legal safeguards in the Indian context and sheds light on the absence of explicit protections for men and transgender individuals.
2. The POSH Act, 2013
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 which is also known as Prevention of Sexual Harassment Act ("POSH Act") is the primary legislation which deals with workplace sexual harassment against women. This history of the POSH Act stems from the famous case of Vishakha v. the State of Rajasthan3. It was enacted to incorporate the Vishakha Guidelines of 2007 and fulfill international obligations under the Convention on the Elimination of All Forms of Discrimination against Women, the POSH Act holds great importance in safeguarding women against sexual harassment within diverse professional areas. However, before the introduction of the Act, there was no formal legal recourse to tackle sexual harassment at workplace apart from two provisions i.e. Section 354 and Section 509 of the Indian Penal Code, 18604.
The Act works as a comprehensive framework for establishing key definitions and providing relief to the aggrieved women. Terms such as sexual Harassment, employer responsibilities, workplace are few of the well-defined terms which provide clarity in its interpretation. The cornerstone of the Act is the precise definition of sexual harassment, covering a spectrum of actions spanning from undesirable physical propositions to verbal and non-verbal behaviors imbued with sexual connotations. The definition of sexual harassment reads as - "sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:— (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 conduct of sexual nature"5. This inclusive definition acknowledges the nuanced ways in which discomfort can arise, ensuring that any activity contributing to an uncomfortable or hostile workplace is addressed.
The Act also defines the term workplace which encompasses any location accessed by the employee due to or during their employment, encompassing transportation arranged by the employer for commuting to and from the workplace. In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India6 three criterias were established to ascertain the conditions under which a place would qualify as a workplace for the application of the POSH Act - proximity from the place of work, control of the management over the place/residence where the working woman is residing and that the residence be an extension or contiguous part of the working place7.
The Act is applicable to companies with more than 10 employees, making compliance a widespread obligation. Failing to adhere to the Act's provisions carries serious consequences. The Act mandates annual reporting, requiring companies to disclose the number of cases filed and disposed of, thus promoting transparency and accountability. The Act has made it mandatory for Companies to set a committee i.e. The Internal Complaints Committee (ICC) to address the grievances received. Additionally, the Act provides a provision of local committees (LCC) wherein the district Governments are obligated to establish committees at the local level to investigate and respond to complaints of sexual harassment from the unorganized sector and from establishments where the ICC has not been formed due to fewer than 10 employees of the establishment or when the complaint is against the employer.
Apart from the above, the Act lays down a process for enquiry, recourse in case of false complaints, duties of employers, confidentiality, etc. The Act in entirety has changed the corporate culture with framework for protecting women against sexual harassment.
3. Navigating Concerns and Opportunities of a Gender Neutral POSH
3.1. Need for a gender neutral POSH law
The Prevention of Sexual Harassment (POSH) Act, enacted in India to address workplace harassment and ensure a safer environment for employees, has undeniably been a significant step towards safeguarding the rights and dignity of women. However, an important and often overlooked aspect of the Act is its lack of gender neutrality. While the Act's language, definitions, and mechanisms are predominantly geared towards addressing harassment against women, it fails to adequately address and protect individuals of other genders, namely men and transgender individuals. Such a constrained perspective not only dismisses the actual experiences of harassment encountered by these communities but also encourages the misconception that harassment is solely confined to being a woman's concern.
Nevertheless, there are certain clauses of the Act that are gender neutral, this approach should be extended to encompass other facets of the legislation as well. For example, Section 18 of the Act, which addresses the protocol for appealing against decisions made by the ICC or LCC, utilizes the term "any person" eligible to file an appeal. This implies that the aggrieved party in question can be a man, woman, or an individual identifying with any other gender identity.
Furthermore, each organization's internal complaints committee is required to ensure a balanced representation of genders. This stipulation mandates the inclusion of both a woman and a man as members of the committee. Within the Act, a mechanism is established to protect whistleblowers, which enables any employee to report incidents of sexual harassment without fearing reprisal, irrespective of their gender. This accountability pertains equally to all employees and employers, regardless of their self-identified gender.
In the case of Hiral P. Harsora v. Kusum Narottamdas Harsora8, The Supreme Court noted that while the primary aim of the statute is to protect women across various aspects of life, Section 2(m) of the POSH Act defines the term "Respondent" to encompass all genders. Consequently, the POSH Act acknowledges that both males and females can be perpetrators of sexual harassment. This recognition implies that the POSH Act can also be interpreted as addressing instances of sexual harassment between women, thereby encompassing situations involving individuals who identify as lesbians.
Apart from the above, if any other individual apart from a woman faces any kind of sexual advances or harassment at the workplace, they do not have any formal recourse in the POSH Act. This matter of gender neutrality within the prospective law was brought up in the December 2011 parliamentary standing committee's 239th report9 regarding the Bill. The committee proposed investigating the feasibility of an inclusion of a provision with a supportive intent, aimed at addressing situations of workplace sexual harassment involving men.
Additionally, the committee suggested the potential requirement for employers and establishments to include cases or occurrences of male sexual harassment in their annual reports. The committee believed that such a step could contribute to gaining a more comprehensive understanding of the overall landscape of sexual harassment. Nevertheless, the Standing Committee Report excluded the gender neutrality aspect. The reasoning provided for this exclusion was that women bear a disproportionately significant impact of this issue.
But in the 2010 survey conducted by Economic Times-Synovate, 19% of the 527 male respondents from various cities in the country reported experiencing instances of sexual harassment10. The survey further revealed that in the same group of 527 men from different urban areas, 51% acknowledged encountering incidents of sexual harassment in their workplaces. Similarly, a study carried out by Viacom 18 in 2013 discovered that 43% of male corporate professionals had encountered unwelcome sexual advances from their colleagues. These surveys are pivotal in understanding that men too faced harassment at workplaces before the enactment of the Act.
Same is the case with Transgenders, the current law on sexual harassment fail to expressly acknowledge cases of sexual harassment appertaining to the Gay, Bisexual, Queer, Asexual and such other allied individuals who may not identify themselves as heterosexuals.
Even though the law does not provide a gender neutral stance on sexual harassment at work place, various companies have adopted gender neutral policies to safeguard their employees against the same.
3.2.Concerns regarding a Gender Neutral POSH on the current law
Introducing a gender-neutral Prevention of Sexual Harassment (POSH) policy within the framework of the Internal Complaints Committee (ICC) brings forth valid concerns that warrant careful consideration during formulation. The Current law has given the IC powers of a Civil Court and it must follow principles of natural justice. Many believe that a gender neutral policy may divert the ICC's core focus, which has traditionally been centered on addressing sexual harassment against women, as mandated by the POSH Act11. Expanding the policy's scope to encompass all genders could potentially lead to complexity in proceedings, slowing down the resolution of cases and straining the ICC's resources. Such a policy might inadvertently overshadow the specific rights and protections extended to women under the Act. There are concerns that it could be misused for non-gender-related issues, leading to unintended consequences. However, in addressing these apprehensions, it is essential to maintain a balanced approach. A well-crafted gender-neutral policy should ensure the preservation of the gains made in safeguarding women's rights while extending protections to all genders. Robust training, clear guidelines, ongoing monitoring, and comprehensive awareness initiatives can collectively help mitigate these concerns, making the ICC an effective and inclusive mechanism for preventing workplace harassment for all employees.
4. Global Perspective on POSH
4.1 UNITED KINGDOM
In the United Kingdom, the matter of sexual harassment is addressed within the framework of the Equality Act 201012. This legislation defines sexual harassment as "unwanted conduct that violates someone's dignity or creates an environment that is intimidating, hostile, degrading, humiliating, or offensive"13. Furthermore, Section 26 of the Act specifically prohibits three types of harassment related to the protected characteristic of sex:
- Sex-related harassment: This encompasses unwanted conduct linked to a person's sex as a protected characteristic.
- Harassment of a sexual nature: This involves unwanted conduct of a sexual nature.
- Less favourable treatment based on an individual's response to sex-related harassment or sexual harassment, whether it involves rejection or submission.
In January 2020, the Equality and Human Rights Commission (EHRC), released technical guidance on workplace harassment. This guidance serves as the foundation for a statutory code of practice. Additionally, the EHRC has published guidance concerning the misuse of Non-Disclosure Agreements (NDAs) or confidentiality clauses in discrimination cases14.
4.2 THE UNITED STATES
In the United States, workplace sexual harassment is classified as a form of sex-based discrimination, thereby rendering such misconduct illegal throughout the nation. Federal laws addressing sexual harassment in workplaces pertain exclusively to employers with fifteen or more employees.
The Civil Rights Act of 1964 safeguards both employees and job applicants against employment discrimination rooted in factors such as race, colour, religion, sex, and national origin. Title VII15, a component of this Act, comprehensively covers all facets of employment decisions, encompassing aspects from recruitment, selections, and terminations to decisions affecting the terms and conditions of employment.
According to the Code of Federal Regulations16, sex-based harassment constitutes a violation of Section 703 of Title VII. Such harassment is defined as including unwelcome sexual advances, requests for sexual favours, or other verbal or physical behaviours of a sexual nature. It is considered sexual harassment when:
- "Submission to such conduct is explicitly or implicitly made a condition of an individual's employment.
- Submission to or rejection of such conduct influences employment decisions concerning that individual.
- Such conduct unreasonably interferes with an individual's work performance or creates a hostile, intimidating, or offensive work environment"17.
As outlined by the U.S. Equal Employment Opportunity Commission, harassment isn't restricted solely to sexual harassment but can also encompass offensive remarks about a person's sex. The law does not proscribe simple teasing, casual comments, or isolated incidents that are not particularly severe. Harassment becomes illegal when it is frequent or severe enough to create a hostile or offensive work environment or results in adverse employment actions, such as termination or demotion. The harasser can be a supervisor, a supervisor from another department, a colleague, or even an individual not employed by the same organization, like a client or customer.
The United States has a well-structured legal framework to combat workplace harassment, extending protection to victims regardless of their gender. However, it is significant to note that isolated cases of unwelcome comments or teasing do not typically fall under the category of sexual harassment. Harassment, for it to be legally actionable, should be ongoing, resulting in a hostile work environment. Furthermore, these laws place the responsibility on employers to maintain a zero-tolerance policy towards such behaviour and mandate them to enforce stringent regulations to prevent, address, and combat such incidents effectively.
The Uber sexual harassment case, which came to light in early 2017, exposed a toxic work culture at the ride-sharing giant. The case began when Susan Fowler, a former Uber engineer, published a blog post detailing her experiences of sexual harassment, discrimination, and a lack of action from Uber's human resources department18. Fowler's account shed light on a deeply problematic workplace culture that tolerated harassment and mistreatment of female employees.
In response to the scandal and public outrage, Uber commissioned the law firm Covington & Burling to conduct an independent investigation into the company's workplace culture and harassment issues. The resulting report, known as the "Covington Recommendations"19, outlined a series of findings and recommendations to address the problems within Uber.
Key findings of the Covington report included:
- Inadequate HR Procedures: The report highlighted a lack of effective human resources processes to address employee complaints, particularly those related to sexual harassment and discrimination.
- Cultural Issues: It identified a culture of non-compliance and non-reporting of harassment and discrimination incidents, indicating that many employees were afraid to come forward with their concerns.
- Lack of Diversity and Inclusion: The report pointed out Uber's insufficient diversity and inclusion efforts, emphasizing the importance of promoting a more inclusive work environment.
Based on these findings, the Covington Recommendations included several key steps for Uber to take:
- Strengthen HR Practices: Uber was advised to improve its human resources procedures, ensuring that complaints are taken seriously, investigated thoroughly, and resolved promptly.
- Reform Company Culture: The recommendations stressed the need to transform the company's culture to one that is respectful, inclusive, and diverse. This involved addressing issues related to bias, discrimination, and harassment.
- Leadership and Accountability: Uber was urged to hold leadership accountable for fostering a positive work environment and to prioritize diversity at all levels of the organization.
- Diversity and Inclusion Initiatives: The report called for the implementation of diversity and inclusion programs/training aimed at recruiting and retaining a more diverse workforce.
Uber's response to the Covington Recommendations involved significant changes within the company, including the ousting of several top executives and the hiring of new leadership. This case and the Covington Recommendations serve as a prominent example of how allegations of workplace harassment can lead to a reckoning within a company, prompting necessary reforms and cultural shifts. It also underscores the importance of fostering respectful and inclusive work environments across industries.
In conclusion, the 21st century has seen a significant shift in societal attitudes towards gender equality and harassment. While there has been progress in recognizing that harassment often stems from systemic gender inequalities, the legal framework governing sexual harassment still presents challenges, particularly in India. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) is a commendable step towards safeguarding women in professional settings. However, its lack of gender neutrality is a critical concern. While there are gender-neutral clauses, there's a need for a more comprehensive approach. For instance, Section 18's use of "any person" for appealing implies inclusivity, but the Act should explicitly protect all genders.
The POSH Act's journey from the Vishakha Guidelines to its current form signifies progress, yet it leaves out men, transgender individuals, and non-binary people who can experience workplace harassment. The Act needs to be re-evaluated to address the diverse experiences of harassment. The Act should include individuals irrespective of gender and include the definition of "aggrieved person" instead of women. Amendments should be brought in place to safeguard individuals against harassment at workplace not only from the opposite gender but also from the same gender. Keeping the same thought in mind, other existing provisions and new provisions can be introduced which lays down guidelines for employers to protect individuals of all genders at the workplace.
Internationally, the United Kingdom's Equality Act 2010 and the United States' Title VII of the Civil Rights Act have comprehensive frameworks addressing sexual harassment with more gender-inclusive language. These laws not only protect all genders but emphasize employer responsibility in preventing and addressing harassment. In the global push for gender equality, India should strive to amend the POSH Act to be more gender-neutral, providing equal protection to all individuals. It is essential that workplace environments remain safe and respectful for everyone, regardless of their gender identity.
3. Vishaka & Ors. V/S State of Rajasthan (Air 1997 Sc 3011)
4. Malavika Rajkumar, The History Behind Sexual Harassment at the Workplace Law, Nyaaya (2022), https://nyaaya.org/guest-blog/the-history-behind-sexual-harassment-at-the-workplace-law/#:~:text=The%20main%20intention%20of%20these,Act%2C%202013%20(POSH).
5. The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, Section 2(n)
6. Saurabh Kumar Mallick vs. The Comptroller & Auditor General of India and Another, WP(C) No. 8649/2007
7. Nishith Desai Associates. Sexual Harassment: Workplace "Outside the Box." (2008). https://www.nishithdesai.com/generateHTML/5861/4
8. Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165
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