Workplace sexual harassment law in India: Building a case for a law focused on women workers

Men and transgender persons also face harassment at the workplace, but the solution is not to include them within the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, writes Dr Anagha Sarpotdar.

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VIOLENCE prevents employment and blocks access of women to financial resources as demonstrated by several international reports such as those by the International Monetary Fund (IMF) [(2015) and 2022] and the World Bank (2018).

As Bhuyan and Aggarwal (2017) and Borker (2017) have shown, fear of sexual harassment may force women to make relatively poorer economic choices. For every additional crime per 1,000 women in a district, roughly 32 women are deterred from joining the workforce, according to Chakraborty and Lohawala, (2021).

Women are less likely to work away from home in regions where the perceived threat of sexual harassment against girls is higher.

Siddique (2020) recommends special transport facilities and self-defence training for women and the strengthening of a policing and legal framework that protects women from sexual assaults since media reporting on sexual violence is likely to generate feelings of anxiety and fear among women.

Fear might lead women to magnify the subjective probability that they might become victims, which can make women less likely to work outside their homes.

Given that failure to prevent gender-based discrimination and sexual harassment in the workplace often hinders women from obtaining jobs or advancing their careers, it is important to analyse whether a gender-neutral workplace sexual harassment law is required in India.

A consistent narrative has been built around the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 that it is an unjust and unfair piece of legislation that excludes men and transgender persons from the category of the complainant, for example by Vidhikarya (2019); Fox Mandal (2022) and Mishra (2022).

Articles [for example Agarwal (2017), Khan (2017), The Amicus Qriae (2020), Making Workplaces Safer (2023), Mishra and Shivam (2023), Patel (2023), Rajagopalan (2023) and Verma and Lobo (2023)], advocating that the law should be amended for the category of a complainant in the Act to become gender-neutral cite cursory experiences of men, state that the law focused on women is unequal and denies men the right to register complaints of sexual harassment, thereby being dismissive towards experiences of sexual harassment faced by men.

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In light of arguments favouring gender neutrality, this article asserts the perennial need for a law focused on women. It attempts to counter arguments advocating gender neutrality by providing a socio-political-legal analysis of workplace sexual harassment as a phenomenon, analysing the evolution of jurisprudence, reiterating the relevance of law to the 'Me Too' movement, and briefly looking at the status of women in India with reference to work.

Asserting an amendment to the Act minus relevant statistics and vibrant deliberations would be absurd.

Need for a law focused on women 

Power and sexual harassment 

MacKinnon (1979), Aggarwal (1992) and Stanko (1988) analysed sexual harassment from a socio-cultural point of view and gender relations perspective. Definitions emanating from their analysis enumerated that sexual harassment at the workplace is an unwanted sexually oriented behaviour resulting out of unequal power relations at the workplace and it has serious consequences on the employment of women.

This argument was further extended by Haspels et al. (2001) by recognising sexual harassment as a clear form of discrimination based on sex and the manifestation of unequal power relations between men and women.

Further, Wilson and Thompson (2001) argued that sexual harassment is primarily about men exercising power over women. It is mostly used as a weapon to punish women who deviate from traditional gender roles, as shown by Berdahl (2007).

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Sexual harassment can be regarded as a tool to intimidate and discourage women to maintain the continuing dominance of men and removal of women from work. This argument was supported by several others such as Gruber (2008), who stated that male dominance is the crucial factor where women are the targets of sexual harassment perpetrated most often by men.

Women who are sexually harassed are deprived of their right to a safe and secure working environment. This may affect their productivity levels, lead to their dismissal from work, denying them the right to employment and livelihood. Sexual harassment thus perpetuates inequality between women and men.

Several Indian studies on workplace sexual harassment and public disclosures by women [for example Saheli (1998); Sanhita (2001), Indian Centre for Human Rights and Law (ICHRL) and Sophia College (2003), Population Council (2006); IPSOS Reuters (2010); Sehgal and Lahiri (2021); International Women's Rights Action Watch (IWRAW) (2005); Women's Indian Chamber of Commerce and Industry (WICCI) (2022); Centrally Funded Technical Institute (CFTI) (2010); Faleiro (2018); Roy (2018); Indian Express (2014); Godbole (2021); Anand (2016); Sood (2013); HRW (2019); Agnihotri (2023)] bring forth that sexual harassment has been perpetuated mostly by men employed in senior positions within organisations.

A law protecting the rights of women was, therefore, the need of the situation. 

Substantive equality and sexual harassment

A gender-neutrality approach to law aligns with the formal approach to equality that does not consider discrimination faced by groups. It requires treating men and women alike which will require disregarding the historical oppression of women; and their marginalisation due to sexual harassment within male-dominated workplaces.

A formal approach stands in direct contrast to the substantive approach to equality which directs attention to the subordinate position of women in society and the corresponding disadvantaged status at work, as described by Agnes (2017). The substantive equality paradigm aims at the elimination of the inequality faced by women in society through a spectrum of policies and legal mechanisms.

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In the Vishakha case (1997), the Supreme Court of India espoused the substantive equality approach by recognising sexual harassment at the workplace as a distinct problem largely affecting women and a blatant violation of gender equality.

The court issued guidelines for employers aimed at the prevention and redress of workplace sexual harassment in the absence of a law. The judgment upheld the idea that the concept of equality was much more than treating all persons in the same way.

It pronounced that equality between men and women in the true sense of the term could be realised by making concentrated efforts towards rectification of existing power imbalances in society, specifically those at workplaces.

Compliance with Vishakha by employers

Poor and faulty implementation of the Vishakha guidelines was discussed in articles by Oversier (2010) and Mohanty (2013). These articles highlighted the repeated defiance of Vishakha and revictimisation of women by employers.

They confirmed that the issue of sexual harassment had largely been swept under the carpet in India, revealing that overall awareness about the need for a well-defined mechanism to tackle sexual harassment at the workplace was nonexistent.

Articles by Radhika (1999), Pinglay (2012) and Deshpande (2012, 2013a, 2013b) published prior to the enactment of the 2013 Act provided insights into long-drawn struggles of several employed women who protested against sexual harassment, challenged the employer for not complying with Vishakha and in return were terminated from their jobs.

A Joint Parliamentary Committee (JPC) report (2011) revealed that in the face of poor implementation of the Vishakha guidelines (1997) by employers, a law safeguarding the rights of women at their workplace was needed.

The report said that gender-based classification of complaints was not possible since there were no studies focused on sexual harassment of men at workplaces.

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This situation exists to date wherein there is a data gap pertaining to the nature and extent of workplace sexual harassment faced by men in India. The JPC concluded that given the patriarchal nature of Indian society, the number of women needing redress from sexual harassment at workplaces was high, while the Vishakha guidelines (1997) remained on paper in a majority of workplaces.

The JPC report was followed by the Medha Kotwal judgment (2012) wherein the Supreme Court of India directed that since legislation on sexual harassment at the workplace was not in place and many women were struggling to have their basic rights protected; implementation of the Vishakha guidelines needed serious attention, emphasising the need for a law guarding rights of women at workplace.

Law coming into existence

Continuous engagement by the women's movement with the government of India for over 16 years resulted in the enforcement of the Act in 2013. The Act acknowledges unequal gender relations at workplaces.

It recognises specific constraints and needs of women in India thus intending to safeguard women from sexual harassment at workplace. It is a social legislation for empowering women against sexual harassment [of the kind described by Fairchild (1944) and Gangrade (1978)] and affirmative action based on Article 15(3).

Reported complaints and enduring need for a women-centered law

Since the enforcement of the law in 2013; complaints have been reported against men in powerful positions across geographies and work sectors [for example, by Ganz, 2014; Indian Express (2014), Dwivedi (2018), Live Law (2019), Deccan Herald (2021), SAWM India and Sanhita (2021), Anantakrishnan (2022) Anand (2023) and Noor, 2023)].

Prominently, the MeToo movement in India brought to light numerous complaints where women across the spectrum spoke about experiences of sexual abuse at the workplace by men in positions of power [Roy (2018), Indian Express (2018), and Bhattacharya (2018)].

This was a collective outpouring of experiences and solidarity by working women who publicly called out sexually charged and unsafe working environments and challenged employers to follow the law in true spirit.

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MeToo triggered discussions about gender inequalities at the workplace, patriarchal perceptions towards complainants, the attitude of employers, lack of evidence, underreporting of complaints, power disparities at work between men and women as an accelerating factor [as shown by Kirby (2018), Sastry (2018), Anjum (2022), Sharma (2022)], and social isolation faced by complainants at workplace after reporting complaint [as demonstrated by Venugopal (2018)], thus reiterating a need for a law concentrated on women.

January 2023 saw Indian women wrestlers agitate against the Wrestling Federation of India (WFI) chief. It was understood that since the WFI chief was a powerful politician and member of the Indian Parliament, the Delhi police did not file a first information report (FIR) until an intervention by the Indian Supreme Court [as shown by Mahapatra (2023) and Sinha (2023)] and the crime registration did not result in an arrest.

The government of India was called out by the civil society for being 'unmoved' by women wrestlers, whose protest drew support across the country as well as globally.

Equality, empowerment and women

Gender inequality at workplaces in India is substantiated by various reports [Mohan et al. (2023), Bhattacharyya (2024), Bhattacharya and Basu (2024), ETV Bharat (2024), Goyal (2024), Majumdar (2024), The Hindu (2024), Savkoor (2024) and Deloitte (2024)].

Data demonstrates that the goal of equality between men and women remains distant with women missing out on raises, promotions and work offers. Additionally, the gender pay gap continues to be high in India, with poor representation of women in senior management of companies.

India obtained a ranking of 113 out of 190 countries in the World Bank Index, which indicates a chasm between legal rights enjoyed by men and women. It would be arbitrary to expect neutrality with respect to laws while women are behind men with respect to prominent gender equality pointers.

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Article 14 of the Indian Constitution comprises two expressions, 'equality before law' and 'equal protection of the laws'. 'Equality before law' means that the law must be enforced and administered equally among those who are equals, whereas 'equal protection of the laws' means that all persons in similar circumstances shall be given the same rights and liabilities.

Equality before law cannot be applied while formulating laws on violence against women as the status of men and women is not equal in India [as demonstrated by Sharma (2023) and in The Wire (2023)]. Special statutes focusing on women are needed in keeping with equal protection of the laws.

False complaints

Anecdotal discussions and a few writings about the workplace sexual harassment law connect the issue of false complaints with the gender neutrality of the law. Section 14 of the 2013 Act, titled "Punishment for false or malicious complaint and false evidence" provides for a penalty if the reported complaint of sexual harassment is found to be false after an inquiry by the 'internal committee' (a quasi-judicial mechanism that conducts inquiry in the reported complaint of sexual harassment).

Section 14 has been under scrutiny by women's groups and organisations from the inception of the Act; but it continues to exist. Notably, to date, there is no national or regional data published by the government of India or any state government in India with respect to the number of false complaints of workplace sexual harassment.

In the absence of credible statistics on false complaints, it would be adventurous to presume that there is rampant misuse of the law and justify amending the Act for it to become gender-neutral.

Moving ahead

In November 2023, the Supreme Court of India dismissed a petition praying for amending the Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 for making them gender-neutral.

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The court directed that if a person other than a woman is subjected to sexual harassment and there is no body of Regulations to extend protection to such a person, amending the existing Regulations instead of formulating another Regulation was not the solution.

The court stated that since the Regulations were based on the 2013 Act, amending them would dilute and denude their effect. Moreover, the focus will be lost from the principal objective, i.e., prevention of sexual harassment of women.

It will be useful to apply the four-dimensional framework created by Fredman (2016) to know the importance of the Act in strengthening women employees and workers.

The framework talks about redressing disadvantages suffered by a marginalised group by advocating structural change achieved through accommodating differences and enhancing voice and participation of the group.

Vishakha and the 2013 Act have helped break the stigma and silence surrounding the subject and allowed the voices of women to emerge in the form of public disclosures and reporting of sexual harassment.

The definition of sexual harassment in the Act is victim-centered and the legislation places the responsibility of redressal on the 'internal committees' that mandate leadership of women intending to correct power imbalances at work and making workspaces more equal.

Succinctly, laws that are enacted to remove systemic disadvantages suffered by women are justified, not just in terms of being necessary to bring about gender equality, but in terms of gender equality itself being desirable and worth the cost it implies.

Postscript

The author acknowledges that men and transgender persons are victims of workplace sexual harassment and their complaints should be addressed. 

Most organisations in the private sector have inclusive policies and codes of conduct which allow all persons to register complaints of sexual harassment. Additionally, The Transgender Persons (Protection of Rights) Act, a criminal legislation, prescribes imprisonment and fine as per Section 18 if a person harms or injures or endangers the life, safety, health or well-being, whether mental or physical, of a transgender person, or tends to do acts including causing physical, sexual, verbal, emotional and economic abuse.

To some extent the issue of sexual abuse faced by transgender persons can be addressed provided the Act is implemented effectively.