Introduction:
Sexual harassment remains a pervasive issue in India, affecting individuals across various sectors and walks of life. Despite the existence of legal framework and awareness programmes, a number of sexual harassment cases go unreported as many victims choose not to speak up due to fear of retaliation or victimization. This fear of reprisal serves as a significant deterrent, preventing survivors from seeking justice and perpetuating a culture of silence around misconduct.
Retaliation, in various forms, looms as a potent threat for those contemplating reporting instances of sexual harassment. Victims often grapple with the fear of losing their jobs, withholding of promotion, facing social stigma or encountering hostility from the organization colleagues and superiors.
The power dynamics within workplaces and societal attitudes towards victims contribute to the culture of silence and victim-blaming, leaving victims vulnerable and isolated.
- A survey reported from the Economic Times in February, 2023 revealed that only 8% of the respondents were aware of the POSH Policy prior to 2021, and 11% said they would leave the organisation rather than choose to report sexual harassment.1
- It was also found that 37% of the respondents, largely women, have experienced sexual harassment at work in some way, 50% voted unwanted touch as the type of sexual harassment they encountered the most, while almost 45% faced verbal remarks of sexual nature in both physical and virtual workplaces, 2% admitted to suffering sexual assault or rape at their workplace, 17% of respondents either feared or had no idea of their option to report sexual harassment, and 63% of the respondents said they had not experienced any kind of sexual harassment at their workplace.
A total of 400 working professionals, comprising all genders and different age groups, participated in this survey, as reported.
- Women fear Retaliation.
The EY Report of 2017 revealed that
"Women tend to not report harassment in the workplace because of fear of retaliation by the harasser or organization.
Some of the other reasons why women stay away from officially complaining about harassment include, social stigma, self-judgment, lack of faith in the system and lack of understanding of the law."2
PIL Filed to protect victims from Retaliation or Victimization:
On July 07, 2023, the Hon'ble Supreme Court refused to entertain a plea requesting directions for safeguarding the interests of complainants, witnesses and other individuals involved in cases of sexual harassment at workplace from potential victimization or retaliation by the accused parties or associated organizations.
The judgment was delivered by a bench comprising Hon'ble Mr. Chief Justice D Y Chandrachud and Hon'ble Mr. Justice P S Narasimha in the case of S vs. Union of India and Other [For the purpose of maintaining confidentiality, the name of the party has been kept anonymous].3
History of the case:
The case traces back to 2019 when a Public Interest Litigation (PIL) was filed by the petitioner before the Hon'ble High Court of Delhi, to consider making suitable amendments to The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, so as to include retaliation/victimization as a facet of sexual harassment and to provide for measures for protection of women who have complained of sexual harassment/witnesses/those involved in the inquiry process, including those making an allegation (whether express or not) that some person has contravened the Act and/or committed an act of sexual harassment from such victimization/retaliation.
Having heard the counsel for petitioner and looking into the facts and the circumstances of the present case, the High Court found no reason to issue a writ of mandamus to amend the POSH Act.
"While exercising our powers under Article 226 of the Constitution of India, it is not a function of this Court to advise the legislature."
With regard to the prayer of the petitioner to amend the POSH Act or make any changes thereto for the amendment of the law, the High Court referred to a number of case references emphasizing that it is not possible for this Court to give any direction for amending the Act or the statutory rules. It is for the Parliament to amend the Act and the Rules.
In the case of V.K. Naswa v Union of India, it was held by this Court that "Thus, it is crystal clear that the court has a very limited role and in exercise of that, it is not open to have judicial legislation. Neither the court can legislate, nor has it any competence to issue directions to the legislature to enact the law in a particular manner."
Further, the Court emphasized that the prayer of the petitioner, effectively seeks creation of a new category of offence in the POSH Act i.e., an offence of retaliation/victimization.
"Retaliation, or victimization, are only the provocation for an act of assault. If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. If it does not, it cannot be punishable under the said Act, as the act deals with only offences of a sexual nature, and an offence, which does not lead to sexual harassment, can obviously find no place therein.
Thus, the very premise of the petitioner, that retaliation/victimization constitutes a distinct category of sexual assault, is therefore, itself fundamentally misconceived."
Hence, with the aforementioned observations, the writ petition was dismissed by the High Court vide order dated July 31, 20194.
Aggrieved by the impugned final judgment and order dated July 31, 20219 in WP(C) No. 8288/2019 passed by the High Court of Delhi, the petitioner filed an application for Special Leave to Appeal5 before the Supreme Court.
On January 06, 2020, the petition was called on for hearing and the same day, the Apex Court comprising of Hon'ble Mrs. Justice R. Banumathi and Hon'ble Mr. Justice A.S. Bopanna, declined to interfere with the order of the Delhi High Court dismissing an earlier Writ Petition under Article 226 of the Constitution. However, the petitioner was granted liberty to work out her remedy with the competent authorities
"Considering the prayer made by the petitioner, we are not inclined to entertain the special leave petition. The special leave petition is, accordingly, disposed of by giving liberty to the petitioner to work out her remedy in accordance with law including by making representation before the concerned authorities."
Later, in July 2023, a fresh PIL was filed with the same request, which again met refusal as the Supreme Court declined to intervene in the matter.
"We leave it open to the petitioner to pursue the representation so that an appropriate view can be taken by the competent authority on whether and if so how the grievance requires to be suitably addressed."6
The Writ Petition was accordingly disposed by the Apex Court.
Understanding the context under the POSH Act:
The Preamble of the POSH Act clearly outlines the purpose of enactment of this law. It states:
"An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto."
The Act had been enacted to provide a framework for addressing workplace harassment, recognizing the harsh reality that victims may face retaliation in various forms for speaking out against such misconduct. To counteract this, the Act includes a crucial provision for granting interim relief to victims during the pendency of POSH inquiries.
Employees who speak out against wrongdoing or injustice often tends to find themselves isolated or subjected to unfair treatment by their peers or superiors. In extreme cases, retaliation may also escalate to the point of termination, demotion or other forms of professional reprisal, leaving victims vulnerable and powerless.
And hence, due to this fear of repercussions from those in positions of power, victims hesitate to speak out thereby contributing to the creation of a hostile working culture. Retaliation may also be in the form of excluding employees, who have spoken out against wrongdoing, from meetings or projects, which may have a detrimental impact on their morale, productivity and well-being, leading to feeling of isolation, targeted and worthlessness. Verbal or physical abuse resulting from retaliation can lead to job dissatisfaction, stress, anxiety, etc.
Recognizing the need to protect victims from retaliation, the POSH Act acknowledges that interim relief is essential to ensure the victims well-being and prevent further harm during the investigation process.
Section 12 of the POSH Act empowers the Internal Committee (IC) or the Local Committee (LC) as the case may be, to pass orders for interim relief, including but not limited to:
- Transfer the complainant/aggrieved woman or the respondent to any other workplace;
- Grant leave to the aggrieved woman up to a period of three months, in addition to any statutorily prescribed leaves; or
- Grant such other relief to the aggrieved woman as may be prescribed.
Further, in accordance with the provision of Rule 8 of the POSH Rules, 2013, the IC or the LC may, at the written request of the aggrieved woman, recommend to the employer to:
- Restrain the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer; or
- Restrain the respondent in case of an educational institute from supervising any academic activity of the aggrieved woman.
Interim relief refers to temporary measures or actions taken during the pendency of an inquiry of a sexual harassment complaint. They are not punitive but preventive, designed to mitigate the risk of retaliation, and provide immediate relief and protection to the complainant, ensuring their safety and well-being during the inquiry. Further, by minimizing the contact between the parties involved, interim measures aid in maintaining the integrity and impartiality of the investigation.
Most importantly, this reduces the risk of retaliation against the complainant, thereby instilling confidence in victims to come forward and report instances of sexual harassment without any fear of reprisal.
Legal Stance on Sexual Harassment Retaliation in other countries:
Workplace retaliation is illegal under various federal and state laws. One of the primary law addressing it includes anti-discrimination laws like Title VII of the Civil Rights Act of 1964, a federal law, which explicitly prohibits an employer from retaliating against an employee who has made a charge, testified, assisted or participated in" any charge of unlawful discrimination under the Act.
"No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter."7
Further, section 15(a)(3) of the Fair Labor Standards Act, 19388 makes it a violation for any person to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee."
While at the state level, the California Fair Employment and Housing Act (FEHA) builds upon the foundation laid by Title VII, offering more extensive protections against sexual harassment.
Section 12940 of the FEHA Act makes it unlawful for an employer to discriminate on the ground of race, religious creed, color, national origin, genetic information, marital status, sex, gender, age, sexual orientation. This includes refusing to hire or employ or to bar or discharge the person from employment or to discriminate in compensation or in terms, conditions or privileges of employment.9
While both the FEHA and Title VII offer protection against sexual harassment and retaliation, the FEHA provides broader protections and covers more employers. For example, unlike Title VII, which applies to employers with 15 or more employees, FEHA applies to employers with 5 or more full or part-time employees, thus offering protections to a large number of workers.
Conclusion:
In light of the evolving understanding of the workplace harassment and the global movement, it is imperative to incorporate provisions to effectively prevent and address retaliation. By doing so, POSH Act can better serve the interests of victims and promote a culture of accountability and respect in workplace.
Footnotes
3. https://www.livelaw.in/pdf_upload/24697202312544815order07-jul-2023-480121.pdf
4. W.P.(C) 8288/2019
5. Appeal (C) No. 28851/2019
6. Writ Petition Civil No. 644/2023
7. 42 US Code 12203-Prohibition against retaliation ad coercion
9. https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=12940.&lawCode=GOV
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