Sexual harassment of Women at the workplace: Legal framework and enforcement

Introduction

Sexual Harassment at the workplace has consistently proven to be an insidious issue, especially in a society where professionalism and economic contribution to the family have been viewed in a gender-specific context, and with the positive onset of women taking up imperative roles in organizations, sexual harassment causes a major hindrance in the accomplishment of those objectives, that trace back to a broad spectrum, ranging right from earning bread and supporting their families to further demotivating them for pursuing their professional goals.

Sexual harassment at the workplace poses a great threat to the autonomy of employees, compromising their dignity and security and the very place where they spend the majority of their time, and this culture has the potential to lead to widespread fear and paranoia which may have extremely unhealthy repercussions since it relates to essentially questioning the safety and security of the means for individuals to support themselves.

To address these complications, legal literature has been implemented, such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). However, given the current scenario in the context of prevailing societal norms that dismiss or aim or attempt to subdue negative experiences to serve a polished image of be it the victim, the aggressor, or even the company itself, and the persistence of sexual harassment cases, the implementation of these laws lacks adherence to the same in true letter and spirit. The following article aims to examine the evolution of India’s workplace harassment laws, the extension of the protections that they encompass, and the societal and corporate challenges adversely affecting enforcement, providing solutions that suggest a more nuanced and comprehensive approach to handling workplace harassment.

Historical Background and Laws on Workplace Sexual Harassment

The Vishaka Guidelines (1997)

The Vishaka guidelines trace their introduction back to the 1992 Bhanwari Devi Case where a female social worker who was attempting to prevent a child marriage in Rajasthan, was brutally gang raped, these guidelines serve as the cornerstone and the turning point in the legal literature relating to workplace harassment in India. The Tragic event led to the Supreme Court of India providing interim measures for women’s protection in the workplace. In Vishaka v. State of Rajasthan, the Court reaffirmed that sexual harassment violates women’s constitutional rights to equality, freedom, and protection from exploitation.

The guidelines mandated that employers establish mechanisms and procedures to address and resolve complaints of sexual harassment at the workplace and refrain from remaining oblivious to the concerns of employees. The Court thereby underscored employers’ obligations to foresightedly create a safe and supportive space for women in the workplace.

The Sexual Harassment of Women at Workplace Act, 2013

Sixteen years post the Vishaka judgment, the POSH Act was approved and enacted to finally legally formalize protections encompassing employees against workplace sexual harassment. Effective as of 2013, this law included the Supreme Court’s guidelines while acknowledging and addressing gaps in existing labor and criminal laws. The act defines sexual harassment, highlights the procedures for complaints, and outlines the establishment of committees to address internal complaints, the act aims to establish a vigorous framework for combatting sexual harassment in the workplace. However, an underlying limitation of the Act is that although it does provide structural guidelines and mechanisms to combat harassment, there is heavy reliance placed on the compliance of employers with these measures and also significant optimistic predictability in the context of societal acceptance of these norms.

The POSH Act defines “sexual harassment” as

“sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

• physical contact and advances; or
• a demand or request for sexual favors; or
• making sexually coloured remarks; or
• showing pornography; or
• any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature;

This encompasses unwelcome advances, requests for sexual favors, or any such sexual remarks. By being heedful of the Supreme Court’s definition in the Vishaka judgment, the Act ensures that various manifestations of harassment fall within the definition described under it.

 Additionally, the Act also defines “workplace” in a nuanced and comprehensive manner to include not only traditional office spaces but also places employees visit in the course of their employment, such as transportation provided by employers for undertaking journeys pertaining to places visited by employees arising out of the course of their employment, educational or industrial institutions, sports facilities, etc.

A cornerstone provision of the POSH Act is the establishment of an Internal Complaints Committee in every branch for organizations with more than 10 employees as a grievance redressal forum to address claims of workplace sexual harassment in both organized and unorganized sectors. The ICC has the same powers as that of a civil court under the Code of Civil Procedure, 1908 when trying a suit in respect of: i. summoning the attendance and examination of any person; ii. the discovery and production of documents; and iii. any other matter which may be prescribed.

This committee holds the powers to receive complaints, undertake investigative actions on the same, and finally undertake any other action deemed necessary to resolve and dismiss the matter.

Local Complaints Committees (LCCs) established at the district level address complaints relating to the unorganized sector that encompasses informal businesses with little to no regulations, often lacking job security, benefits, and legal protections, ensuring coverage across different workplace sizes, it also extends its protection to organizations where an ICC has not been set up on account of less than ten employees or a complaint being registered against the employer.

Power dynamics within the Workplace

Whether it be victims being hesitant to speak up about facing harassment, or the lack of proper measures to penalize perpetrators, it all majorly boils down to the power dynamics within the organization. Victims who are harassed by fellow employees serving a higher position than them in the organizational hierarchy face concerns relating to reporting the incidents, and even if they garner the courage to report, there is always the potential for their concerns to be overlooked, in favor of the person in the position of power, this fear translates to paranoia about lost opportunities for growth, concerns about job security, in addition to a disesteemed reputation. Courts have emphasized that transparent investigative measures are key to handling harassment cases, as a cloudy mechanism may only lead to further distrust in the process.

A transparent and documented process that reveals all the steps right from the registration of the complaint to the ultimate dismissal of the case must be undertaken to garner trust in the fairness of the grievance mechanism and provide confidence and assurance to all the employees that their concerns will duly be attended to, in adherence to and compliance with the mechanism established.

As of judicial opinion, it is held that retaliatory practices observed against complainants significantly deter their resolve to engage any further in the redressal process and this approach is highly discouraged as it only exacerbates the situation at hand.

Approaching Gender Neutrality

The focus of the POSH act on protecting women is imperative and no doubt the need of the hour, however, this gender-specific approach sidelines male victims along with transgender persons, and the approach must shift to encompassing all genders and fostering inclusivity through the acknowledgment of the fact that victimhood lacks a specific gender.

Male victimhood is largely surrounded by a lot of social stigmas, especially in patriarchal contexts, which only complicates reporting as men may fear judgment or show emotional vulnerability. Judicial suggestions increasingly point to the need for gender-neutral harassment policies, affirming that a more inclusive approach could better serve not only men and transgender persons but also women, shifting the focus of the society and similarly affected legal frameworks from discussing and analyzing the gender of victimhood to addressing the remedies that can be offered to victims and assurance of a just mechanism to grant them relief, irrespective of their genders.

Regular Compliance with POSH

Courts have duly noted that establishments that fail to set up ICCs, offer training programs to employees, or fail to comply with the mandates of POSH, aid an environment where harassment claims go unchecked and foster a negative corporate culture. Routine compliance checks help ensure that ICCs are not only in place but also constitute members who are well-versed with the regulatory frameworks, unbiased, and responsive to complaints. Therefore, regular audits also help establish accountability and increase an organization’s goodwill and reputation by highlighting their commitment to identifying and resolving upcoming issues surrounding workplace harassment.

Case Law

• Pawan Kumar Niroula Vs Union of India: This case highlighted implementation challenges relating to the POSH Act within government-run educational institutions themselves. The court reinstated the establishment of ICCs to facilitate and resolve complaints. Here, in this case, the school established a summary trial committee as per a 1993 legal notification, which the court ruled invalid post-2013. The Act mandates an ICC for sexual harassment cases, which the school failed to establish.
• Dr. Savitri Tripathi Vs State of Chhattisgarh: This case highlighted the complications in the jurisdiction when harassment cases involve employees from different departments, the court emphasized the employer’s responsibility to undertake the obligatory duty to facilitate investigations regardless of departmental boundaries, underscoring that jurisdictional complications or ambiguities must not deter justice.

 Conclusion

Although the POSH Act proves to provide a structured mechanism for seeking redress in sexual harassment at workplace cases, it also portrays a strong dependency through an unrealistic view of evolving societal norms, in addition to compliance of members of the establishments with the Act. Legal reforms extending to gender-neutral provisions, coupled with rationalized training to reduce the innate effects of societal stigma would boost the Act’s overall implementation and execution performance and accuracy.

By focusing on effectively promoting accountability and supporting victims across genders, Indian workplaces can transform into safe spaces where every individual’s right to work with dignity, safety, and security is protected.

References

1. Gayatri Balaswamy v. ISG Novasoft Technologies Ltd., 2014 (6) CTC 602 (Mad.).
2. Pawan Kumar Niroula v. Union of India, WP. CT 86 of 2021, 2022 SCC OnLine Cal 180, (2022) 173 FLR 936, (2022) 3 CLR 69, 2022 Lab IC 3214 (Cal.).
3. Gulafroz Jan & Nasheman Ferozan, Sexual Harassment of Women at Workplaces: A Study of Hospitals and Courts in District Srinagar and Pulwama, 6 GJLDP 167 (Oct 2016).
4. Dr. Savitri Tripathi v. State of Chhattisgarh, WPCR No. 174 of 2018, 2021 SCC OnLine Chh 3203, (2022) 2 CGLJ 195 (Chh.).
5. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India)