Understanding what constitutes sexual harassment at workplace

META DESCRIPTION

This article aims to explain the meaning of sexual harassment at workplace in terms with The Sexual Harassment of Women at Workplace (Prevention, Prohibition AndRedressal) Act, 2013 and the decisions of various Courts across the country.

KEY WORDS

Sexual AND Harassment AND Workplace AND meaning AND POSH AND act AND employment AND unwelcome AND verbal AND physical AND Apex Court AND High Court

INTRODUCTION

Merriam-Webster's dictionary of law defines sexual harassment as "employment discrimination consisting of unwelcome verbal or physical conduct directed at any employee because of his or her sex".

Women across the worldfrequently face sexual harassment and all forms of gender discrimination in the workplace. Every human being has the right to work in a safe and secure work environment. Sexual harassment puts the basic human rights and dignity of an individual in peril.

In India, sexual harassment of women in the workplace grossly violates their fundamental rights such as the right to equality under Article 14 of the Constitution of India, the right against discrimination under Article 15 of the Constitution of India, the right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe working environment free from sexual harassmentunder Article 19 (1) (g) of the Constitution of India and right to life and dignity under Article 21 of the Constitution of India.Protection against sexual harassment and the right to work with dignity are universally recognised human rights by international conventions and instruments such as the Convention on the Elimination of all Forms of Discrimination against Women, which was ratified by the Government of India on 25th June, 1993.

MEANING OF SEXUAL HARASSMENT

Section 2(n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 (also referred to as the "POSH Act, 2013") defines sexual harassment as direct or implicit unwelcome acts or behaviour such as:

  1. physical contact and advances or
  2. a demand or request for sexual favours or
  3. making sexually coloured remarks or
  4. showing pornography or
  5. any other unwelcome physical, verbal or non-verbal conducts of sexual nature.

Sexual harassment at workplace includes the following circumstances as enumerated under Section 3 (2) of POSH Act, 2013:

  1. Promise of preferential treatment in the workplace either express or implied.
  2. Threat of detrimental treatment in the workplace either express or implied.
  3. Threat relating to the current or future employment status of the woman at the workplace either express or implied.
  4. Interfering with the work of the female or creating an intimidating or offensive or hostile workplace for her.
  5. Treating the woman in a humiliating waythat is likely to affect her health or safety.

SETTLED LEGAL POSITION

Apparel Export Promotion Council v A.K. Chopra: The Apex Court observed that considering the sensitivity surrounding sexual harassment of women at workplace, the courts should not get swayed by insignificant discrepancies or narrow technicalities and dictionary meaning while construing the term "molestation" in relation to sexual harassment against women. The Apex Court was considering the term "molestation" in the context of sexual harassment and the court held that it is not necessary that the perpetrator should actually molest a woman or touch her or commit actual assault but it is sufficient if every other act of the superior if viewed against moral sanctions, decency and if it offends the modesty of a woman, it shall fall within the definition of "sexual harassment"

S. Raju Aiyar v Jawaharlal Nehru University and others: The Division Bench of the Hon'ble Delhi High Court held that sexual harassment at workplace includes stalking and frequently calling complainant's residence andcreating an overbearing and intimidating situation and sending her emails with vulgar and filthy contents.

K. Pushparaj v The Controller and Auditor: The Central Administrative Tribunal upheld the enquiry report which had concluded that all the charges imputed are proved. The proved sexual harassment charges, among others, included using abusive and unparliamentary language against senior officers and vulgar words against lady auditors at work place and showing of unwelcome sexually determined behaviour amounting to a demand or request for sexual favour pointing out to women officials. Blocking the passage staircase to obstruct Lady Senior Auditor and not allowing her to climb up or climb down the staircase to escape. He habitually misbehaved with lady officials making unwelcome, physical, verbal and non-verbal conduct of a sexual nature such as coming very close to them, making sounds of kissing, blowing cigarette smoke on lady officials, blocking the way of women, talking or making obscene and vulgar gestures at lady officials, demanding sexual favour, frightening them, creating an atmosphere of terror making the workplace unsafe. In such cases there is no scope for the disciplinary authority to show any sympathy to the Respondent, the CAT observed.

Mohan Kumar Singh v TheChief Manager of HRD Central Bank of India: The Patna High Court held that the charges of persistent pestering of lady Bank Officer by phone calls, sending her obscene photographs and finally assaulting her at the Bank premises having been proved in enquiry before Internal Committee, dismissal of Respondent from service on such findings is proper and his acquittal in criminal case will not assist him for a claim of his reinstatement.

Global Health Private Ltd. and Ors. v District Panchayat: The Hon'ble Madhya Pradesh High Court analysed section 2(n) and observed that the words "sexual harassment" must not receive narrow and pedantic meaning being an inclusive definition but to be perceived on the anvil of international conventions to which India is a signatory. In this case woman employee's request made through emails for relocation to ward off sexual harassment has not been considered. Instead, her work was squeezed and she was marginalised and embarrassed and subjected to typical hostile work environment intimidating her future employment. She was made to feel insecure. Her probation was extended for 3 months more and there was no further appraisal thereafter and later her services are terminated. Such termination is stigmatic and not terminations implicit or, the court held. Her complaint was not dealt with by IC as recorded by the Local Committee to whom the complainant had perforce to approach in the circumstances. The Court therefore awarded ₹2500000/to the complainant as compensation for the pain and suffering, loss of reputation, emotional distress and loss of salary for no fault on her part, resulting in deprivation of right to live. Besides, payment of ₹50000/for not constituting IC in terms of section 26 of the Act

REFERENCES

  1. Sexual Harassment of Women at Workplace, 1.4 JCLJ (2021) 794
  2. Sexual Harassment At Workplace, 9 CPJLJ (2019) 256
  3. Sexual Harassment at workplace in India, 2.2 JCLJ (2022) 255
  4. Interpreting the Provisions of Sexual Harassment of women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, 2.4 JCLJ (2022) 1317
  5. Merriam-Webster's Dictionary of Law
  6. The Sexual Harassment of Women at Workplace (Prevention, Prohibition AndRedressal) Act, 2013
  7. https://wcd.nic.in/sites/default/files/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf (last visited on 20 August, 2023)

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.