In the first column on Sexual Harassment at Workplace in our Know Your Rights series, it is only fair to start it by understanding what is meant by “Sexual harassment at workplace”. At the outset, it should be distinguished from “sexual harassment” in a non-workplace context as the hierarchal set-up that is definitive of an employee-employer relationship is missing outside the workplace. The Sexual Harassment (Prevention, Prohibition, and Redressal) of Women at Workplace Act, 2013 is gendered as it only permits women to be the complainant in cases of sexual harassment and the accused only to be a man.
In this Act, the definition of sexual harassment (Section 2(n)) is hinged at “unwelcome” acts, whether directly or by implication, which may include any physical contact and advances; a demand or request for sexual favours, making sexually coloured remarks; or showing pornography, or any other verbal or non verbal conduct of sexual nature.
What constitute ‘unwelcome sexual acts’?
The kind of behaviour covered under this provision could be inappropriate comments about clothing, personal behaviour, or a person’s body, sexually coloured innuendos, inappropriate questions about a person’s sex life/love life, unwelcome social invitations, unwelcome flirting; obscene phone calls; presence of sexually explicit material such as posters, cartoons, drawings, calendars, pictures in public open space, where women cannot ignore it.
Sexually explicit material in public spaces could at times be a job requirement, and thereby not always sexual harassment, as is the case of a doctor’s clinic or an organisation that works in the field of sexual rights, or even websites and magazines catering to a particular genre of content permissible under the Indian Constitution.
However, one of the bigger questions is what is “unwelcome” social invitations, or unwelcome flirting? There are instances when the unwelcomeness is clear in the form of a “rejection” or “denial” from the woman. However, a “feeble no” should not be mistaken as an invitation to “convince”.
Unwelcome feels powerless, humiliating, one-sided, forced, demeaning, invasive.
Sexual favours and link to employment
Section 3 of the Act aims at tackling situations when sexual favours are demanded with a threat or promise to alter the employment status. These are:
- implied or explicit promise of preferential treatment in her employment; or
- implied or explicit threat of detrimental treatment in her employment; or
- implied or explicit threat about her present or future employment status; or
- interference with her work, or creating an intimidating or offensive or hostile work environment for her; or
- humiliating treatment likely to affect her health or safety
In this regard, we tend to forget the “implied” part in these provisions which would encompass persistent invitations to dinner by a supervisor to his subordinate, with remarks on the side such as “performance reviews are around the corner”, or “increments are in my hand”, or “it is a direct order from your supervisor”.
Quid pro quo harassment
The promise of preferential treatment in return for sexual favours is termed as “quid pro quo” form of sexual harassment where the colloquial relation is, I help you, you help me. However, in these situations, even when the sexual advances are welcomed by a woman, one should be mindful of the disadvantage such treatment causes other female employees who do not want such preferential treatment in return of sexual favours.
The other side of “quid pro quo” type of harassment is that can also hold a woman to ransom as her refusal to comply with the “request” can be met with retaliatory action such as dismissal, demotion, memos, tarnished work record and difficult work conditions.
When situations of sexual harassment create an offensive or intimidating work environment, it has been categorized as “hostile work environment”. In this category, a woman need not be specifically targeted, but even the prevalence of sexual coloured remarks amongst other employees, tolerated or encouraged by the employer, or where human bodies are objectified is enough to constitute sexual harassment at workplace. This could include situations where a female employee after rejecting sexual advances is not provided the requisite support staff, or other amenities, or her projects are withdrawn from her, etc.
The power dynamics in these situations makes it difficult for a woman to say an unequivocal, forceful “no” and complain to Human Resources. Persistence, coupled with the power wielded by a supervisor can at times lead to a situation where a woman “has to” consent, rather than “want to” consent.
However, between peers, power can be exerted in differing ways where a woman’s safety is at risk, or she is humiliated in the workplace. For example, there could be a situation where a female employee has to travel with her co-worker for a conference or a client meeting that requires, overnight travel. During the journey, she is asked questions regarding her sex life by the co-worker, who later threatens to drop her on the road in the middle of the night if she doesn’t agree to his sexual advances. It will be pointed out that a prudent woman, careful about her safety would not agree to undertake an overnight journey with a male employee. However, I counter, that in these situations, it is easier to accuse the woman, than to excuse the patriarchy which makes a woman choose between her safety and her equality of opportunity.
What is ‘workplace’ under 2013 Act?
This leads us to the question, what constitutes a workplace under the 2013 Act?
The Act has given a broad meaning to the term “workplace”, and includes private as well as government organisations, their departments, branches, and the unorganised sector that have more than 10 persons employed. An exception in this is a dwelling place or house, which is also included under the definition of workplace. We will discuss the mode of complaints for those working in a dwelling place or a house in a separate post.
Under the Act, any kind of travel, or deputation by the employer is also considered as a workplace. In short, any place, where a person is representing the employer or is carrying out professional functions or duties, is a workplace.
Legally speaking, the US Supreme Court, in the first case of sexual harassment at workplace that reached the Supreme Court, very accurately held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that consent that is given by way of force, threat, or in an involuntary manner is not consent. It stated that one should not focus on the “voluntariness” of the woman, rather “The correct inquiry is whether respondent, by her conduct, indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.”
Declaration of consensual relationship to Human Resources
For people asking the question if there can be any consensual sexual relationship between a supervisor and a junior, the answer is yes, there can be, but such relationships should be declared to the Human Resources to ensure that any conduct between the two of them cannot be deemed to be a norm in the workspace and it does not create a hostile work environment for others.
In the next column, I will address the procedure and issues in constitution of Internal Complaints Committee in a workplace under the Act.
[Nehmat Kaur assists Senior Advocate Indira Jaising and is a staff member of Lawyers Collective.]