SEXUAL HARASSMENT OF WOMEN AT THE WORKPLACE:  LEGAL FRAMEWORK AND ENFORCEMENT

 

ABSTRACT:

This article provides a comprehensive overview on sexual harassment of women in the workplace which is a critical situation that undermines gender equality and creates toxic work environments. This article scrutinizes the legal frameworks that address sexual harassment of women in the workplace, emphasizing on the rights and protections afforded to women under national and international laws. It also examines the key legislative instruments highlighting the definitions of sexual harassment, preventive measures, and redressal mechanisms. Additionally, the article explores the enforcement of these laws, including the role of internal complaints committees, external regulatory bodies, and judicial systems in ensuring accountability. By integrating empirical studies, recent legislative changes and policy actions, this review enhances the multifaceted nature of workplace sexual harassment. It also provides valuable insights on the future legal reforms and strategies designed to address and reduce this recurring challenge.

INTRODUCTION TO SEXUAL HARRASMENT OF WOMEN AT WORKPLACE:

According to Section 75 of the Bharatiya Nyaya Sanhita,2023,

• A man committing any of the following acts-
• Physical contact and advances involving unwelcome and explicit sexual overtures; or
• A demand or request for sexual favours; or
• Showing pornography against the will of the women; or
• Making sexually coloured remarks, shall be guilty of the offence of sexual harassment.

Any man who commits the offence specified in clause (a) or clause (b) or clause (c) of sub-section (1) shall be punished with a rigorous imprisonment for a term which my extend to three years, or with fine, or with both.

Any man who commits the offence specified in clause(d) of sub-section (1) shall be punished with rigorous imprisonment of either description of a term which may extend to one year, or with fine, or with both

Gender equality is a fundamental human right that applies across all spheres of life, and the Indian Constitution guarantees equal status and opportunity to all its citizens. Sexual harassment, particularly in the workplace, is a direct violation of a woman’s constitutional right to equality and dignity. Such harassment creates an unsafe and oppressive work environment, discouraging women from participating fully in the workforce and severely hindering their personal, social, and economic growth. Sexual harassment at the workplace, in its various forms—whether verbal, physical, or non-verbal—violates a woman’s right to work in a safe and respectful environment. Acts of sexual harassment such as unwanted touching, brushing against, patting, hugging, suggestive remarks, or even inappropriate staring, not only diminish a woman’s dignity but also impairs her professional potential and stalls her career trajectory.

This introduction sets the stage for an exhaustive review of the legal frameworks aimed at addressing workplace sexual harassment. Throughout history, various legal instruments at international, national, and organizational levels have been deployed to mitigate this concern reflecting evolving societal norms, legal standards, and organizational practices. From early anti-discrimination laws to contemporary legislative reforms and corporate policies, the framework of laws addressing workplace sexual harassment has undergone notable reforms.

[1]The Indian Judicial experience with sexual harassment started with the case, Vishaka v. State of Rajasthan. The case dealt with the brutal gangrape of Bhandari Devi, a social worker who was working to spread awareness to end child marriage. The court decided to use this opportunity to create a protective framework for the female workforce of this country, an area where there had been a huge lacuna in the Indian Law. Thus comprehensive guidelines were issued by the Supreme Court to ensure that the female workforce of this country is protected from sexual violence and sexually charged gender-discrimination in the workplace. There were several judgements after the Vishaka judgement which emphasized the need of a comprehensive legal framework for protection from sexual harassment at workplace.

SEXUAL HARRASMENT IN THE WORKPLACE: THE VERMA COMMITTEE:

The committee of justice headed by Justice Verma is a landmark for the way in which it has inscribed into the very foundations of law, the equality and liberty of India’s women citizens. To uphold the constitutional guarantees afforded to women, it is essential that the rights given to working women in the Vishaka judgement are not elided or compromised, either by the Government’s Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 or by the Criminal Law(Amendment) Ordinance, 2013.

[2]On 29 October 2012, the Supreme Court of India expressed its dismay that the Vishaka guidelines on sexual harassment in the workplace were “followed more in breach than in substance and spirit by State functionaries”. Regretting the fact that the government has failed to finalise appropriate legislation in this regard, the Court gave employers a two-month deadline “to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment”. The fate of that deadline is as yet unknown, but happily the intervening month has also seen the submission of justice Verma Committee’s recommendations. Its report has also castigated the government’s inaction on this regard and stringently criticised the Government’s Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012.

SEXUAL HARASSMENT AT WORKPLACE: INDIAN LEGISLATIVE APPROACH

1. [3]THE EQUAL REMUNERATION ACT OF 1956 -ensures the elimination of discrimination against women in determining their wages, promotion and transfer and also ensures equal pay for equal work irrespective of gender and solely proportion of work done by employee.
2. THE INDUSTRIAL DISPUTES ACT OF 1947- The Act has a provision to allow an employee to sue the employer in labour tribunal for wrongful dismissal of employee due to non-compliance with the demands of employer to do sexual favours. The Act also includes a definition of “unfair labour practices,” broad interpretation of which includes sexual harassment.
3. THE INDECENT REPRESENTATION OF WOMEN (Prohibition) ACT, 1986-Harassment of a woman by an individual through books, photographs, paintings, films, pamphlets, or packages, among other things, is punishable by a minimum sentence of two years. Companies fall under the purview of this law under Section 7 of the Act, and as a result, a two-year sentence can be imposed on the accused.
4. THE INFORMATION TECHNOLOGY(Amendment) ACT, 2008 AND INDECENT REPRESENTATION WOMEN (Prohibition) ACT – The two important legislation protect the women from sexual harassment at workplace.
5. SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (Prohibition, Prevention and Redressal)

ACT, 2013- As women’s participation in the labour market grew in both in organized and unorganized sectors, there is a need for free and safe working conditions for them by the virtue Art. 19(1) (g) and Article 21 of the Indian Constitution. Enacting legislation that dealt solely with SHW at work and included a redress mechanism became an absolute necessity. With the support of the “Criminal Law (Amendment) Act of 2013 the Act demonstrates the importance of Articles 14, 15, 19(1)(g), and 21 in creating a gender-neutral environment. This Act supports Article 11 of CEDAW, which protects women’s constitutional rights. Because it focuses solely on employer-employee relationships and does not protect any act carried out by a party not covered by the law, the POSH Act is linked to the country’s labour laws.

The Act covers the entire country of India. It defines an ‘aggrieved woman’ as a woman who at any age alleges that she has been the victim of   any act of “sexual harassment” by the respondent, whether she is employed or not. Under this Act, an “employee” is defined as a person who is employed at a workplace for regular, temporary, ad hoc work, or on a daily wage, whether directly or through an agent, with or without the knowledge of the principal employer, whether or not for remuneration, working voluntarily or otherwise. Domestic workers will also benefit from it.

[4]In the case VISHAKA V. STATE OF RAJASTHAN, the Court decided,

The court decided that only “International Conventions and norms are significant for the purpose of interpreting the rights of gender equality, right to work with human dignity in which is there under Articles 14, 15 and 19(1)(g) and 21 of the Indian Constitution, as well as the implicit safeguards against sexual harassment. The above-mentioned petition led to the formulation of Vishaka Guidelines, which were so important which attracted the legislation to legislate a new Act, which is widely known as Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Act, 2013. The judgment of August 1997 given by a bench of J. S. Verma (Ex C.J.I), Sujata Manohar and B. N. Kirpan, provided the basic definitions of sexual harassment at the workplace and provided guidelines to deal with it.

REGULATORY BODIES AND TRIBUNALS

1. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION- This agency created buy the Congress in 1964 to enforce Title VII of the Civil Rights Act is responsible for enforcing federal laws regarding discrimination or harassment against a job applicant or an employee in the United States. This law is generally subjected to those companies if they have at least 15 employees.
2. NATIONAL HUMAN RIGHTS COMMISSION- This commission plays a significant role in handling issues of sexual harassment of women on workplace. It consults with the Government, Private Agencies as well as NGO’S for setting up Redressal mechanisms of complaints regarding sexual harassment of women employees.

CHALLENGES AND BARRIERS:

Complaint mechanisms are often seen as tools that empower individuals to address issues they face. In the context of workplace sexual harassment, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) provides the framework for addressing such complaints. While the POSH Act has contributed to safer and more supportive work environments, its effectiveness is often limited by various barriers that prevent women from fully utilizing these systems.

There is no universal solution for sexual harassment complaints, as each woman’s experience is unique. Factors such as the risk of exposure, difficulties in accessing reporting mechanisms, and the need for protection against retaliation all play a role. Additionally, personal and emotional challenges—such as the fear of isolation or the psychological burden of filing a complaint—further complicate the process. This blog explores the common obstacles women face when navigating workplace systems for addressing sexual harassment.

The POSH Act of 2013 seeks to create safer work environments, but its effectiveness is hindered by systemic obstacles. However, The POSH Act only allows written complaints that identify the victim, excluding anonymous complaints from its scope. Legally, this approach is justified, as it aligns with the principle of natural justice, particularly Audi alteram partem—the right of the accused to know and respond to the allegations. Without providing the respondent with complete information, their ability to defend themselves would be severely compromised. Therefore, the current structure ensures fairness in the process. However, this may limit the accessibility and effectiveness of the system for some victims.

While the POSH Act has made important progress in offering legal pathways to address workplace sexual harassment, its implementation still encounters several obstacles. The lack of provisions for anonymity, the outdated conciliation process, fears of retaliation, insufficient evidence, and deep-rooted societal biases all create significant barriers for women seeking justice. It is essential to acknowledge these challenges and implement measures to overcome them, making the POSH Act more effective. Only through such reforms can we build truly safe and supportive environments where women feel empowered to report sexual harassment and seek redress.

[5]Medha Kotwal Lele & Ors. v. Union of India & Ors. is a case that was decided by the Supreme Court of India in 2018. The case arose from a petition filed by a group of women’s rights activists, including Medha Kotwal Lele, challenging the constitutionality of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act).

The petitioners argued that the POSH Act was insufficient to protect women from sexual harassment at the workplace, and that it failed to provide adequate remedies to victims of such harassment. They argued that the Act did not adequately address issues such as the role of third parties in facilitating sexual harassment, the need for protection against online harassment, and the need for gender-sensitive training for members of internal complaint committees.

[6]The Supreme Court rejected the petitioners’ arguments, holding that the POSH Act was constitutional and that it provided sufficient protections to women against sexual harassment at the workplace. The Court further held that the Act was in line with India’s international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

CONCLUSION

Despite years of attention, legal action, and advocacy, sexual harassment remains a widespread issue across all industries and workplaces. It impacts the lives, health, financial stability, and opportunities of victims while costing businesses in legal fees, lost productivity, and morale. The dynamics of power and gender are central to harassment, with women in lower-status roles often targeted by higher-status men. However, men who don’t conform to traditional norms, LGBTQ individuals, and women can also be victims or perpetrators. A culture of harassment can become so ingrained that it’s often ignored, or not challenged for fear of retaliation.

[7]The Criminal Justice system can be used as a sanction for violations of the Sexual Harassment of Women in Workplace (Prevention, Prohibition and Redressal) Act, 2013. This Act is a game changer because it makes a wide variety of sexual misconduct a crime and requires public and private organisations to create efficient avenues for victims to seek address. According to Article 21 of the Indian Constitution, everyone has the right to life and dignity which also includes protection from sexual harassment. The Supreme Court highlighted that “ it is vital that courts uphold the spirit of the right against sexual harassment”.

 

REFERENCES

1. https://www.indialawjournal.org/archives/volume8/issue-1/article9.html
2. https://www.epw.in/journal/2013/06/web-exclusives/sexual-harassment-workplace-verma-committee-and-after.html
3. https://www.researchgate.net/publication/371607570_SEXUAL_HARASSMENT_OF_WOMEN_AT_WORK_PLACE_A_STUDY_OF_INDIAN_LEGISLATION_AND_JUDICIAL_APPROACH
4. https://indiankanoon.org/doc/1031794/
5. https://indiankanoon.org/doc/1031794/
6. https://main.sci.gov.in/pdf/SupremeCourtReport/2012_v9_piv.pdf
7. https://www.researchgate.net/publication/366969917_A_Study_of_Sexual_Harassment_of_Women_at_Workplace_Environment