- What is Sexual Harassment at the Workplace?
- What exactly constitutes sexual harassment as per the law?
- What can you do if you are facing sexual harassment at the workplace?
- What are the Vishaka Guidelines, what is the POSH Act and what about criminal laws?
- What are the criminal laws to combat sexual harassment of women at the workplace
- How does the POSH Act law apply to media houses?
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.”
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 anyone 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
Note: It is the impact and not the intent that matters and it almost always occurs in a matrix of power.
Click here for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
What are the Vishaka Guidelines, what is the POSH Act and what about criminal laws?
Emergence of legal definition:
Sexual harassment at the workplace, has for 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.
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 the Vishaka guidelines.
Click here for Naina Kapur’s reflections on Vishaka in the backdrop of the #MeToo moment. (Pg 24 of the Souvenir of the Delhi meet, 2019 – I also have a word doc version of this)
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.
Click here for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
What are the criminal laws to combat sexual harassment of women?
While the POSH Act is a civil law, the following are sections in the Indian Penal Code that are criminal laws dealing with sexual harassment.
Section 509: Word, gesture or act intended to insult the modesty of a woman.—Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
Initially referred to by the archaic term “insulting” or “outraging” the modesty of a woman, in 2013, following the recommendations of the Verma Committee, some sections were introduced and others amended in the Criminal Law Amendment Bill:
354A. Sexual Harassment: (1) A man committing any of the following acts— (i) physical contact and advances involving unwelcome and explicit sexual overtures; or (ii) a demand or request for sexual favours; or (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment. (punishment: rigorous imprisonment for up to three years, or with fine, or with both)
354B. Criminal Force: Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place.
354C. Voyeurism: Any man who watches, or captures the image of a woman engaging in a private act.
354D. Stalking: Physically, online or over electronic communication
Note: A woman can complain under both the civil and criminal law and inquiries can take place parallelly. The reliefs available under criminal law (eg: jail term for the perpetrator) are different from the reliefs available under the civil law (transfer, change of department, sick leave, compensation/damages, termination of services, mandatory counselling for the perpetrator etc)
Click Here for the Criminal Law (Amendment) Act, 2013.
Click here for the Verma Committee report
(I also have the full report downloaded, if you feel that’s better).
What is the unique aspect of sexual harassment at the workplace?
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.
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.
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, which makes the complainant feel even more isolated.
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.
How does the POSH Act law apply to media houses?
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 media owners to create a safe working environment for its women employees.
“Workplace” in practice for women journalists includes any places a journalist might travel for work – including restaurants, offices or even homes, for interviews.
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, who can approach Local Committees as per the law.
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.
Set up Internal Committees headed by a senior woman employee and include a third-party expert who should be a with 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 set out in conduct rules.
Set up a transparent and accessible mechanism for redressal of complaints.
Despite the Vishaka Guidelines and 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.
Click here for the survey.
What can you do if you are facing sexual harassment at the workplace?
Do not feel guilty or blame yourself. The man harassing you is entirely responsible.
Do not ignore the problem. 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 and friends to get their support.
If there is a Complaints Committee, make a written complaint.
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.
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 complete guide on Internal Committees and obligations of employers to set up redressal mechanisms, click here (WCD Handbook).