Sexual Harassment @ Work: An explainer /FAQs
What is sexual harassment at the workplace?
Sexual harassment is any unwelcome sexual advance, request for sexual favour, verbal or physical conduct or gesture of a sexual nature, or any other behaviour of a sexual nature that might reasonably be expected or be perceived to cause offence or humiliation to another person.
It has long been trivialised as ‘eve-teasing’ and ‘light flirtation’. It was only after a sustained campaign by women’s organisations that it is being viewed not only as personal injury, but also as a violation of fundamental rights of women workers. This intrusive and humiliating behaviour is now being taken seriously as a form of violence against women. Besides the deep impact on the individual psyche of the target of sexual harassment, an unhealthy environment prevails at a workplace where sexual harassment is rampant and condoned.
It is the impact and not the intent that matters, and it almost always occurs in a matrix of power.
What constitutes sexual harassment as per the law?
According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, “Sexual Harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication), namely:
- Physical contact or advances;
- A demand or request for sexual favours;
- Making sexually coloured remarks;
- Showing pornography;
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
What are the Vishaka Guidelines, what is the POSH Act and what about criminal laws?
The first judicial recognition of sexual harassment at the workplace was the Vishaka Guidelines issued by the Supreme Court of India in 1997. The Vishaka judgement was a response to a petition filed by women’s groups in the wake of the gang-rape of Bhanwari Devi, a Sathin (village-level worker) in 1992 while she was carrying out her duties of stopping child marriage as a worker in the government-run Women’s Development Program in Rajasthan.
In the words of Naina Kapur, lead instructing counsel in Vishaka & Ors. v. State of Rajasthan (Supreme Court of India 1997), “Vishaka envisaged that we might finally go to work with the legitimate expectation that our workplace would be free of any of the overt or implied sexual harms and declared that “each incident” of sexual harassment was a violation of women’s constitutional right to equality and dignity.
Click here for Naina Kapur’s reflections on Vishaka in the backdrop of the #MeToo moment.
The Vishaka Guidelines were the law of the land until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, usually referred to as the POSH Act. This is the civil law tackling sexual harassment at the workplace in India and supersedes the Vishaka Guidelines.
Because it is a civil law, it is not invoked by a complaint to the police. It is a law that will activate redressal mechanisms at the workplace itself. The law covers “women’, but can be interpreted to cover all self-identifying women.
There are several criminal laws defined in the Indian Penal Code to combat sexual harassment of women. Click here for more.
What can you do if you are facing sexual harassment at the workplace?
- Do not feel guilty or blame yourself. The harasser is entirely responsible.
- Do not ignore the problem or assume you are “over-reacting”. It will not vanish.
- Clearly and directly inform the harasser that his attentions are not wanted.
- Keep a diary of events and incidents. Save and screenshot any objectionable notes, e.mails, text messages, voice messages, videos or photos as evidence.
- Try to enlist the help of witnesses.
- Talk about the harassment to colleagues, bosses and friends to get their support.
- If there is an Internal Committee, make a written complaint.
- If there is no Internal Committee, make a written complaint to your senior/employer.
- If your boss is harassing you, make a complaint to the higher ups, e.g. the Board of Directors.
- Publicise the matter, so that women co-workers can be cautious about the harasser. Use social media if necessary.
- If you have a union or association at your workplace, approach them to take up the matter.
- One option is to register a criminal case through the local police station. Click here for the applicable laws.
- Above all, remember that you are entitled to a safe working environment free from sexual harassment, and can take all appropriate measures to attain this fundamental right.
For a guide on Internal Committees and obligations of employers to set up redressal mechanisms, click here for the Ministry of Women & Child Development’s handbook, and here for a research booklet by Nishith Desai Associates.
Please note that these are broad guides. Consult a lawyer, activist or anyone familiar with the law before proceeding with a complaint.
What are media houses mandated to do under the POSH Act?
All women media workers are covered under the law. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, puts the onus on employers (including media owners) to create a safe working environment for its women employees. If a media house does not have such a mechanism, it is flouting the law.
For women journalists, “Workplace” in practice includes not only the office, but any place a journalist might travel to for work – offices, restaurants, or even homes, for example for an interview.
Women media workers can experience sexual harassment by colleagues, bosses, interviewees, officials, politicians, police, security forces, members of the public or crowds (while covering demonstrations or election rallies, for example).
In general, only staff are covered under policies to combat sexual harassment. Few media houses extend protection and redress to freelancers. Freelancers can approach Local Committees which are supposed to function like Internal Committees.
As per the law, media houses are obliged to:
- Have a policy to deal with sexual harassment in their workplace, including central offices, and bureaus.
- Carry out preventive measures such as awareness workshops, training in gender sensitization, posters and pamphlets about what constitutes sexual harassment and how to prevent it.
- Set up an Internal Committee headed by a senior woman employee and include a third-party expert who should have a proven track record of having worked on women’s rights.
- Ensure awareness about the issue as a preventive step and publicise the existence of the complaints mechanism.
- Include sexual harassment at the workplace as a misconduct spelled out in conduct rules.
- Set up a transparent and accessible mechanism for redressal of complaints.
Despite the SH Act, media houses still do not have these processes in place, and women journalists do not have accessible and credible mechanisms of redress.
The NWMI survey, in collaboration with Gender at Work, found erratic and poor compliance with the law. Read more about the survey, released in 2019 here.
How is sexual harassment at the workplace different from sexual harassment in public places, roads etc?
Sexual harassment – whether one off or a series of incidents – at the workplace takes place in an environment of work, usually a hierarchy of known people, whom you meet and work with everyday. This is different from sexual harassment that takes places in buses, in trains and on the roads, harrowing as the experience might be.
The unique aspect of workplace sexual harassment is:
- the acceptance or rejection of advances affects a woman’s employment
- it occurs with the purpose or effect of violating the dignity of a woman
- it unreasonably interferes with an individual’s work performance
- it creates an intimidating, hostile, degrading, humiliating or offensive work environment,
- it constitutes an abuse of authority.
What is the impact of sexual harassment?
A woman subjected to sexual harassment can feel humiliated, demoralised, experience a loss of self-confidence and self-esteem and feel violated and stripped of dignity. The impact of sexual harassment can be severe, and have a debilitating effect on the personality, working life and social behaviour of the target of harassment. This could include:
- Physical symptoms, including headaches, sweating, shaking, nausea, exhaustion, insomnia, aches and pains, skin problems, allergies, frequent illness.
- Psychological symptoms including anxiety, panic attacks, depression, loss of concentration, shame, loss of self-esteem, guilt, stress, and nervous breakdown.
- Change in behaviour, including becoming irritable, withdrawn, tearful, substance abuse, and obsessive dwelling on the harasser and planning ‘revenge’.
- Reduced career options (for instance quitting a job or internship/training), and subsequent economic losses.
Why do women find it difficult to complain about sexual harassment?
Sexual Harassment is often not recognised as a violation. Women subjected to sexual harassment may believe that such behaviour (for e.g. sexual jokes) is ‘normal’ in that environment.
- Women complaining may be made to feel prudish, not ‘cool’, or spoilsports, or want to ‘fit in’ with the crowd. This is particularly true of media workplaces.
- Many women hesitate to speak up as there is a precedent of them not being taken seriously and in many cases not believed.
- Due to social conditioning, a woman subjected to sexual harassment may feel guilt and shame, and somewhere believe that it is her own fault, or that she might have provoked the harasser.
- Many women have faced repercussions for speaking up since in many cases the perpetrator is in a powerful position and can prevent promotion, smear the survivor’s reputation, and inflict mental abuse on her for standing up to him.
- The target of sexual harassment fears retribution and retaliation by the harasser, and may feel that complaining may make it worse.
- A feeling of helplessness, that nobody is willing to listen, or nobody will believe her, especially if the harasser is a person in power, who is considered very ‘respectable’.
- A feeling of isolation since very few colleagues are usually willing to come forward and testify or support the complainant for fear of their own safety/jobs/position.
- A lack of solidarity among women colleagues might make the complainant feel even more isolated. Knowing that she’s not alone gives a survivor the courage to speak up.
- Financial security is a major factor preventing survivors from speaking up, as complaining might lead to termination or salary cuts. Survivors also may not have access to legal recourse, and may not be able to afford fighting a case of wrongful termination.
- Women who live in away from home in working-women’s hostels or ‘paying guest’ accommodation, are more vulnerable. Moreover, for women whose families are not very supportive of their career aspirations, the fear that their families may pull them out of college, or forbid them to live on their own, acts as a pressure to remain silent.
- The fear that their family will blame them, force them into an early marriage or that they will bring shame upon their families also serves to silence many women who are sexually harassed.
- A lack of awareness or wrong advise about redressal procedures may also contribute to silence or delay in lodging a complaint.