It is unfortunate that India took almost 16 years after independence to formulate a cohesive statutory definition of sexual harassment at workplace, since the Vishakha & Others Vs State of Rajasthan & Others judgment. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, (hereinafter, stated as ‘POSH’) was passed by the government in 2013, and is the parental law in this regard. T
he judiciary through a catena of cases had conferred an expansive scope of interpretation to the term. It was held that it comprises of unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct with sexual overtones, whether expressly or by necessary implication, sexual discrimination, particularly when the female employee's submission to or rejection of such conduct was capable of being used to deter the female employee's employment. The Vishakha Judgment had further conferred a list of guidelines for dealing with sexual harassment issues.
Section 2(n) of the POSH Act defines the term sexual harassment, including verbal, non-verbal and physical conduct demanding sexual favours, showing pornography, making sexually coloured remarks, etc. Any conduct may further amount to sexual harassment if it involves expressly or indirectly conferring preferential or detrimental treatment to an employed woman, threatening her about present or future employment status or any sort of action that makes the work environment turn hostile or uncomfortable for her.
The Constitution of India guarantees the gender equity under Article 14, 15 and 21 includes protection from sexual harassment and the right to work with dignity. The harassment laws in India are also defined under the Indian penal Code Information and Technology Act. India is also duty bound under several conventions like CEDAW, 1979 Convention Concerning Discrimination in respect of employment and occupation, 1958, etc.
Sexual harassment is prohibited in Canada under criminal law, labour law, and the Ontario Human Rights Code. These three statutes define sexual harassment, define what constitutes sexual harassment, and offer remedies for sexual harassment, respectively.
The Equality Act of England covers sexual harassment, in addition to the general prohibition against harassment. It defines the offence as “unwanted conduct which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”. It is notable that there are no specific rules governing the steps that private sector employers must take to prevent harassment in the UK, employers should implement a system known as reasonable steps, which includes training, policies, and a preventative approach, to avoid being held vicariously liable for the actions of employees who harass their coworkers.
Under the Australian constitution, Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as inclusive of an unwelcome sexual advance, request for sexual favours, to the person harassed; or other conduct of a sexual nature in relation to the person harassed. It is notable that the ambit of the offence is expanded to include anticipatory liability, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.
UNITED STATES OF AMERICA (USA):
The legal framework for combating sexual harassment is laid out in Title VII of the Civil Rights Act of 1964; however, sexual harassment was not mentioned in the law at the time. Although Title VII protects both men and women in the workplace, it was created with the intention of protecting women. In the late 1980s, the Supreme Court interpreted the legislation to include sexual harassment in workplace as discrimination based on "sex." Private employers with 15 or more workers, as well as government and labour groups, are covered by the above law.
The POSH Act has laid down a consolidated framework strongly addressing sexual harassment of women happening workplaces. Being mindful of India’s employment scenario, the act also includes arrangements such as dwelling house, or self-employed enterprises (unorganised sectors) under the definition of workplace to confer holistic protection. Further, POSH makes a balancing gesture by also incorporating a mechanism for addressing false complaints under the law, providing for penalties on equal footing for such offence under Section 14 read with Rule 10 under the corresponding rules, 2013.
However, the legislation still lags the global standards and needs a reconsideration on many fronts. The ambit of definition of the crime under the statute does not consider use of weapons or bodily injury, although they might be covered under other penal laws. Our definition of the offence is still vague, and lacks the specificity accorded to it vide classification under legislation such as the Canadian Criminal Code. Canadian classification of the offence not only addresses different forms of violence in detail, but also helps to serve proportionate penalty to different categories of offenders based on the grievousness of the offence and thus meets the ends of justice better.
Further, the recommendations of the British and US governments regarding recognition of third-party offenders like consumers, vendors and co-workers and contractors are very pertinent in the modern scenario of expanding evolving structures of workplaces. The same can be introduced to broaden the ambit of ‘employers’ under this Section
POSH Act also does not recognise anticipatory liability regime about sexual harassment, which confer better mechanism to detect and address the offence at its early stages before actual commission.
Further, US guidelines by the EEOC, point out some pertinent changes by expanding the definition of victim to include even those who have been anyway affected by the incident.
Lastly, the failure to recognise sexual harassment by and among other genders, is biggest handicap of this law. To this extent, it is not in compliance with the CEDAW, 1979 as that instrument approaches sexual harassment from a gender neutral perspective.
© 2022 Intelaw Consulting. All Rights Reserved