Sexual Harassment at the Workplace: Legal Framework and Enforcement

INTRODUCTION

Women have always made contributions to the workforce; it is only now that their efforts are being acknowledged and compensated. As more women began to participate in the workforce, workplace laws were created. Compared to now, women did not always have the same rights and protections.
Globalization has caused a significant shift in women’s status worldwide. Gone is the time when males were the only ones responsible for providing for their families. Women in India are making strides now in practically every field, including science and technology, education, economics, politics, journalism, art, space and culture, and the service industry. The shift in women’s roles from domestic to commercial employment has led to a rise in offences against them.

Women are frequently sexually harassed worldwide, in both developed and developing nations. It is a complicated topic that involves women, their opinions and actions, and societal conventions that result from discriminatory views against them. Gender, power, and sexuality are all intricately intertwined.
However, with the increased number of women in India’s traditional economy, sexist behaviour and improper behaviour in the workplace have become more common.
Every twelve minutes, a woman in India is sexually harassed. Despite an increase in sexual harassment, women report virtually nothing because they fear losing their livelihood and reputation in the workplace and their personal lives due to social stigma.

WHAT IS SEXUAL HARASSMENT?

In simple terms, sexual harassment is any unwanted sexual behavior—verbal, physical, or nonverbal—that violates someone’s dignity. It can lead to an environment that is intimidating, hostile, demeaning, humiliating, or insulting.

Sexual harassment can occur in any setting, including the workplace or educational institution. It can significantly impair a victim’s quality of life as well as their physical and mental health.
“Women’s Bureau of the International Confederation of Free Trade Unions (ICFTU) defined sexual harassment as”: – Any repeated and unwanted verbal, physical or gestural sexual advances, sexually explicit derogatory statement, or sexually discriminatory remarks made by someone in the workplace which are offensive to the worker involved, which cause the worker to feel threatened, humiliated, patronized, or harassed, or which interference with the worker’s job performance, undermine job security or to create a threatening or intimidating work environment.
The Vishaka Guidelines and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 both define sexual harassment as unwelcome sexual behavior that is intended to cause physical contact, requests for sexual favors, sexually colored remarks, showing pornography, or other unwelcome conduct.

The Bharatiya Nyaya Sanhita (BNS) 2023, the new criminal code, outlines the acts that constitute as sexual harassment under Section 75.
A man committing any of the following acts: —
(i) physical contact and advances involving unwelcome and explicit sexual
overtures; or
(ii) a demand or request for sexual favors; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually colored remarks,
shall be guilty of the offence of sexual harassment.

The Bombay High Court has emphasized that ‘sexual harassment’ includes behavior that creates an intimidating or hostile environment for the woman and leads to humiliating treatment likely to affect her health and safety.

WHAT IS WORKPLACE SEXUAL HARASSMENT?

A ‘workplace’ is defined as “any place visited by the employee arising out of or during employment, including transportation provided by the employer for undertaking such a journey.” As per this definition, it also covers both the organized and unorganized sectors.
It also includes all workplaces whether owned by Indian or foreign company having a place of work in India.
Sexual harassment at work can be classified into two categories. The two types of sexual harassment are referred to as “hostile work environment” and “quid pro quo,” respectively.

Sexual harassment in a hostile workplace can occur in two ways:
i. Someone at work makes you the object of unwanted sexually suggestive or degrading remarks, persistent and unwanted invitations for dates, inappropriate touches or gestures, pranks or jokes, intimidating actions, or pornographic content.
ii. When your employer gives you less favorable working conditions than your coworkers of a different sex just because of your gender, that is another example of hostile work environment harassment. Employing practices, hours, pay, promotions, work schedules, work assignments, vacation or sick leave benefits, job evaluation, disciplinary actions, and termination (firing) are all examples of discriminatory practices.

Quid pro quo: When a boss or supervisor requests or insists on having sex with you in exchange for benefits or promotions, it is considered sexual harassment.
Even if you did not say “no,” it can still be considered sexual harassment. Your sexual contact may have been unlawful harassment if you felt under pressure to engage in sexual activity because you were ashamed to refuse, worried about losing your job, or worried about-facing consequences at work. Although it must have played a significant role in your harassment, your gender identity need not have been the sole factor in your unfair treatment.
It is crucial to remember that sexual harassment can happen in any workplace or profession and can be committed by anybody, including fellow employees, superiors, and even clients or customers.

HISTORY AND EVOLUTION OF THE LAW ON WORKPLACE SEXUAL HARASSMENT

The rape that led to India’s sexual harassment law.
Vishakha and Others v. State of Rajasthan and Others (1997) is a landmark decision that paved the way for sexual harassment laws in India. The issue of sexual harassment at work has been addressed. According to the court, victims of sexual harassment develop depravity in their minds. It further determined that, in conformity with Articles 14, 19, and 21, sexual harassment in the workplace is a serious infringement of basic rights. The Vishakha Guidelines are a set of rules established by the court to prevent sexual harassment in the workplace.
There was no special law addressing sexual harassment in the workplace prior to 2013, as it was covered under the Indian Penal Code’s (IPC) 1860’s larger rules on sexual offenses. Therefore, until the passage of the POSH Act, a woman who experienced sexual harassment at work had only the IPC as a statutory right to redress. The Indian Supreme Court investigated the systemic gender inequality that leads to violence against women, including sexual harassment at work, in 1997. The Court directed the government to pass suitable legislation after observing that such actions violate the fundamental rights guaranteed by the Indian Constitution.

To avoid sexual harassment in the workplace, the Court also developed standards and recommendations known as the “Vishaka Guidelines.” It was emphasized that until the legislature passed appropriate laws to address the issue, the Vishaka Guidelines will be used as the guiding principles. Nonetheless, the Supreme Court noted that several states had not correctly implemented the Vishaka Guidelines, and as a result, it ordered state governments to provide information about the actions they had taken to do so.
In the current digital age, the Rajasthan High Court recently ruled that a female employee who is sexually harassed by a branch office employee in another state would also be covered by the POSH Act.
The court further held that branch offices ought to be treated as a single workplace on a digital platform. Therefore, in accordance with the POSH Act, a female employee who is being harassed online by an employee who works from an office in a different state may file a sexual harassment complaint against the offending employee.

SUGGESTIONS AS TO UNDER WHICH LAW SEXUAL HARASSMENT LAWS CAN BE INCORPORATED

1.Tort law
While claims of invasion of privacy may be applicable in cases where a supervisor has made “intrusive sexual injuries” or where sexual taunting or vulgar sexual propositions have taken place, assault, and battery claims for the purposes of sexual harassment cases are typically based on allegations of “offensive physical contact of a sexual nature.” Sexual harassment is a harmful institutional act. Both deliberate actions that cause harm and negligent conduct brought on by negligence or inattention are covered by tort law. An additional development is vicarious responsibility. Because it is applied when the employer is not at fault, it is often referred to as a stringent or no-fault liability.
2. Equal Opportunity laws
Many nations, like the US, UK, Australia, and Denmark, use the constitutional guarantee of equality to forbid sex discrimination in the workplace. The employer is also accountable for failing to provide an environment free from era-based discrimination, in addition to the accused.
3. Labour laws
It may be used to safeguard against constructive or unfair dismissal due to a rejection or objection to sexual harassment, as well as to unfair dismissal provisions found in laws pertaining to employment contracts.
4. Criminal Law
The Bharatiya Nyaya Sanhita (BNS) 2023, the new criminal code, outlines the acts that constitute as sexual harassment.

CONCLUSION

Sexual harassment at work is a worldwide problem that individuals encounter from their employers, superiors, coworkers, and occasionally even customers. Most nations have enacted laws against this. This article attempted to define sexual harassment, explain its history, and provide an overview of Indian law.
Furthermore, many instances of sexual harassment remain unreported despite the POSH Act’s legal consequences, either because the complaints process is not well implemented or because people are unaware of it. There seems to be a lack of trust in the procedure and its results in cases where events are reported. The POSH Act’s method must be implemented robustly, effectively, and efficiently in order to address these problems. Keeping an eye on successful implementation is essential to identifying any gray areas that can call for more reflection on the part of employers.
When the discussion about protecting working women from obscene behavior has ended, it is time to follow the rules protecting them, which will ultimately provide a helpful tip to establish a vibrant and created culture. The images of ladies that have been created for more than a few years should be updated. It is necessary to view women as unique persons with the same rights as men. Managers need to see women as contributors, not as recipients. Similarly, women need to be clear-eyed and cultivate their own character in order to be able to lead a secure and respectable presence.

BIBLIOGRAPHY

Statutes
i. THE BHARATIYA NYAYA SANHITA, 2023
ii. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013
iii. THE CONSTITUTION OF INDIA,1950

Case Laws

Vishaka and Others v. State of Rajasthan, (1997) 6 SCC 241
Sanjeev Mishra v Bank of Baroda and Ors, SB Civil Writ Petition No 150/2021

Law Journal
Gupta D and Garg J, “Sexual Harassment at Workplace” (2020) 2 International Journal of Legal Science and Innovation 190 https://www.ijlsi.com/wp-content/uploads/Sexual-Harassment-at-Workplace.pdf

Online Sources

“Sexual Harassment at Work” (Legal Voice, December 9, 2022) https://legalvoice.org/sexual-harassment-at-work/
“India’s Workplace Sexual Harassment Law: A Decade On” https://www.ibanet.org/india-decade-of-posh-act#_edn10
Kaurav NH and G.Maley DrD, “Sexual Harassment of Women at Workplace in India: A Critical Study,” vol 5 (Gulbarga University, 2023) https://www.ijfmr.com/papers/2023/3/3609.pdf
Khanna K and Sethi G, “KEY TERMS OF THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 AND WORK FROM HOME” [2013] https://www.lexindis.com/ https://lexindis.com/wp-content/uploads/2020/11/POSH-in-titmes-of-the-work-from-era.pdf
Pandey G, “Bhanwari Devi: The Rape That Led to India’s Sexual Harassment Law” (BBC News, March 17, 2017) https://www.bbc.com/news/world-asia-india-39265653