By Shaan Katari Libby
Recently, I was speaking to a client discussing yet another sexual harassment complaint. There are several these days from various quarters. And while on the one hand, this might seem like a cause for introspection, on the other, it might actually be a good thing because it means that women are finally speaking up.
As most who have dealt with this area of law will be aware, sexual harassment has been defined as unwanted behaviour of a sexual nature (aka something sexual, or related to your gender)—directly or by implication.
The Protection of Women against Sexual Harassment Act (2013) defines “sexual harassment” as including any one or more of the following unwelcome acts or behaviour, physical contact and advances; or a demand or request for sexual favours; or making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Act goes on to state categorically that “no woman shall be subjected to sexual harassment at any workplace”. The Act also details the following circumstances which if found to be persistent in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment:
(i) implied or explicit promise of preferential treatment in her employment: or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status: or
(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) humiliating treatment likely to affect her health or safety.
Also Read: Is prostitution legal in India?
In practice, how do you know if something is or is not sexual harassment? In the UK, the term “dignity” is also used—violation of dignity. I think this is a very apt term as it is just this—a lack of respect for the other that is often the issue. And, at all times, it is the victim’s viewpoint that matters—nothing else. Reasonableness is not a consideration in sexual harassment cases because we are not cut from the same cloth, and what one woman may think is acceptable could be shocking to another. Hence having a fixed yardstick is not easy, and cases are decided based very much on giving the victim’s perspective the greatest importance.
Another way of knowing that you are experiencing sexual harassment is if the unwelcome physical, verbal or non-verbal conduct of sexual nature leaves you feeling intimidated or degraded or humiliated. Often locker room jokes are bandied about—or there have been cases where men have loudly discussed their sexual exploits, thereby making female employees feel uncomfortable. Other cases have involved victims being asked for details about their personal lives and even requests to wear certain types of clothing because it pleases their colleagues when they do. This kind of behaviour is tantamount to sexual harassment regardless of intent and even if the jokes, discussions and requests are not targeted at the complainant. Simply being in unpleasant surroundings with undesirable comments or banter taking place is sufficient to establish sexual harassment.
Section 3 of the Act speaks of circumstances which may amount to sexual harassment. These include: interference with her work or creating an intimidating or offensive or hostile work environment. Some instances that we have dealt with at workplaces have been foul music being played despite requests to stop, discussion about the female figures of each woman in the department and rating them, discussion of clothing, boots, and so on. Also leaning over the shoulder and literally breathing down the neck of women when discussing something or looking at her computer screen from over her shoulder—all of these sorts of actions are considered intimidating and/or hostile.
This Section also speaks of how an implied or explicit threat about her present or future employment status is potentially sexual harassment. A line manager ringing someone at odd hours and promising her a promotion or a favourable appraisal is unacceptable. In fact, as a matter of best practice, he ought not to call her at all out of hours unless absolutely necessary. Equally, if she rebuffs his advances and he resorts to threats of her losing her employment, this too would qualify.
What happens when colleagues are in a relationship? As two consenting adults, there is of course no sexual harassment at play here if both parties are willing to be together. The issue here is more about the dynamics in the group, and ideally management would ensure that the reporting structure was rearranged. There are also times when a relationship ends and one party is unhappy with this situation. In this scenario, any attempt to label the consensual period that was as sexual harassment will fail and could be termed malicious and result in a heavy penalty for the complainant. The threat of sexual harassment claims are not intended to ensure couples commit. They are intended to protect women from unwanted advances or behaviour.
In a recent case, Malabika Bhattacharjee vs Internal Complaints Committee, Vivekananda College and Ors. 2021(1) SCT 431, the Calcutta High Court clarified that sexual harassment complaints against another individual of the same gender is maintainable under the PoSH Act. In this respect, the Court pointed out that there is nothing under the PoSH Act which precludes a same gender complaint and that a person of the same gender can also hurt the modesty or dignity of a woman.
Why is sexual harassment prevalent? This is a difficult one to answer. Part of it might have to do with men having been the dominant participant at most workplaces aside from a few professions like nursing or teaching. Therefore, the majority may have developed the tendency to behave in a certain manner or make jokes about topics that would make women uncomfortable. Now that there are more and more women in the workplace, the tendency has simply continued unabated. It is down to women to voice their concerns.
Sexual harassment is prevalent worldwide. Google, Uber, Fox News, Alibaba, Infosys—to name a few—have all had their struggles with the behaviour of certain colleagues within their organizations. A study in the UK has shown that 63% of women do not report sexual harassment and prefer to quit rather than go through the ordeal. If that is the figure in the UK, where women are a lot more liberated than ours in India, it must be close to 90% who don’t report it.
Also Read: Redefining Sexual Assault
The repercussions of sexual harassment are manifold; from the company’s perspective they lose a good person and have to train someone afresh. From the individual’s point of view, it could mean loss of confidence, depression, losing one’s job, and sometimes even suicide. It is therefore imperative that employers train their staff to pick up on cues, and ask the right questions.
What should the employers do? The Act lays down certain requirements, such has having in place a policy with an Internal Complaints Committee (ICC). This has a specific composition which is predominantly female employees of the company and one neutral outsider—a role I often play unless I am adjunct faculty of the organization—in which case one has to be an internal member so that there is no issue with the final inquiry report. What various reports have highlighted is that sexual harassment needs to be discussed. An innocent pat here or squeeze there can quickly degenerate to something more unpleasant, and the line needs to be clearer in the minds of most managers.
Some companies are very particular about requesting monthly training sessions over Zoom, and follow up questions help us to flag people who have not scored well—who need to be trained again. Other organizations focus mainly on training their managers so that they learn the sorts of open-ended neutral and non-judgemental types of questions they can ask and make notes on before a formal complaint is filed.
It is heartening to see that finally women are speaking up and standing up for themselves. Where there is sexual harassment, it is essential that companies take it seriously and make the point that they do not tolerate it at all. The ICC has various possible interim measures and punishments available to it. The recent cases I have been involved with have had zero tolerance—with the ICC choosing to terminate the employment of those who have been found to have actually harassed.
The writer is a barrister-at-law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai