ABSTRACT
Our workplace should have a positive environment so that employees can achieve the goals assigned to them. Workplace harassment is mostly sexual harassment. The general perception is that this harassment happens only towards women but there are times when even men and transgenders become the victims. But the laws which we have in India with respect to workplace harassment only include women as victims and favour them in all situations. Even if a man or a transgender person is harassed, they generally do not file a complaint because as per society only women get harassed, and it would be difficult for them to prove that they are the victims of harassment. The POSH Act, 2013 has mentioned many laws for the safety of women at the workplace but doesn’t include men and transgender. This act could be amended to include them as well.
INTRODUCTION
POSH Act, 2013 defines sexual harassment under S.2(n), it states that ‘sexual harassment’ refers to any inappropriate sexual behaviour, directly or indirectly, any unwanted contact, sexual favour or demand, statements with sexual undertones, showing pornography, or any unwelcomed sexual act physical, verbal, or non-verbal.
Harassment is any unlawful behaviour towards a person that causes them discomfort, emotional, mental, or physical suffering. Harassment can occur anywhere, including public places, educational institutions, workplaces, etc. It is important to report these acts as early as possible to punish the harasser and make the world safe. This act includes any unwanted touch, insults, threats, verbal or physical abuse, etc.
The place where a person works should have a healthy environment so that one can focus on their work peacefully, but when this peace is disrupted because of some unethical behaviour or words towards an employee or a group of employees, it results in workplace harassment.
Workplace harassment has become very common these days. Usually, senior employees are indulged in these activities. An employee who is at a top post tries to show his/her power by intimidating the junior. Such acts should be reported to the officials at the earliest, as not doing so would encourage the harasser to continue his behaviour not only with one person but also with many others. Workplace harassment harms a person’s mental as well as physical health.
THREE MAJOR TYPES OF WORKPLACE HARASSMENT
VERBAL/WRITTEN HARASSMENT
This is one of the most witnessed types of harassment in any workplace. It can include acts like
Asking for dates or sexual favours in person or through texts.
Sending texts or emails containing offensive jokes related to race, religion, or pornographic content.
Passing a disrespectful comment related to a person’s disability, age, appearance, etc.
PHYSICAL HARASSMENT
This kind of harassment takes place everywhere but it is not seen easily as it is done in a very subtle way. Physical harassment can also take place in public places as well as on public transport. Some examples are as follows
Indecent hand gestures or other gestures to portray abusive words.
Inappropriately touching a person’s body parts or clothes.
Following or standing too close to a person makes them feel uncomfortable.
PSYCHOLOGICAL HARASSMENT
Psychological harassment is kind of similar to verbal one, but the difference is that it includes more mind tactics. Victims of this harassment face more anxiety, mental breakdowns, panic attacks, etc. This harassment could include-
Taking credit for someone else’s hard work.
Making irrational demands.
Imposing short deadlines for employees.
WORKPLACE HARASSMENT LAWS IN INDIA
Section 345 A of the Indian Penal Code (IPC) deals with sexual harassment and punishment for sexual harassment. It states that
1) A man committing any of the following acts-
Physical contact and advances involving unwelcome and explicit sexual overtures; or
A demand or request for sexual favours; or
Showing pornography against the wish of a woman; or
Making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
2) Any man who commits the offence specified in clause [i], [ii], or [iii] of sub-section [1] shall be punished with rigorous imprisonment for a term which may extend to three years, or with a fine, or both.
3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with a fine, or with both.
Section 294 of the Indian Penal Code deals with obscene acts or songs.
Any person to the annoyance of anyone performs any obscene in any public place or sings, recites, or utters any obscene song, ballad, or words in or near any public place, shall be punished with imprisonment for a term which may extend to three months, or fine, or both.
Section 509 of the Indian Penal Code deals with words, gestures, or acts intended to insult the modesty of a woman.
Whoever intends to insult the modesty of any woman by using words or making any sound or gesture, or exhibits any object, with intending such sound or word to be heard, or that gesture or object to be seen, by that woman, or infringes the privacy of that woman, shall be punished with simple imprisonment for a term as long as 3 years along with a fine.
Vishaka Guidelines- These guidelines came out in the year 1997, by the Supreme Court of India. Vishaka guidelines was created to protect women from sexual harassment at workplace. These guidelines are supposed to be used while dealing with cases related to sexual harassment.
Definition of sexual harassment- sexual harassment is any sexual behaviour directly or implied by any physical contact or demand or request for sexual favours, inappropriate sexual remarks, showing pornography, or unacceptable verbal, non-verbal, or physical approach.
Provide a safe working environment- It is the duty of the employer to make sure that all the employees have a safe working environment in their company to achieve their targets. Employers should take appropriate measures to protect working women and ensure that sexual harassment of any kind does not take place. In case
Duty of the employer to file a complaint- In case any criminal offence takes place towards an employee, it is the duty of the employer to file a complaint under the Indian Penal Code. The employer also needs to make sure that the victims are not further victimized.
Employer to assist the employee if she is sexually harassed- It is stated that employers should assist the employees in preventive as well as supportive ways.
Complaint redressal committee- This committee is a must in all organisations according to the guidelines given. So that the complaints of the employees are dealt with in a systematic manner and adequate actions are taken.
Duty of employer to spread awareness- It is essential for the employees especially female employees to know their rights in case any kind of harassment takes place at their workplace. This can be done through workshops or other interactive sessions.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 (POSH)- 17 years after the vishaka guidelines were passed. This act came into effect on 9th December 2013.
The basic frame structure of this act was taken by the Vishaka guidelines. It has a much wider scope compared to the vishaka guidelines.
The definition of “aggrieved women” has a wider scope, including women of all ages and employment status. The term “workplace” includes corporate and private sectors along with organised and unorganised sectors.
It is mandatory for all sectors with 10 or more employees to have an Internal Complaints Committee (ICC).
Time limits have been set for inquiry and redressal of complaints. Fines up to Rs. 50,000 have been imposed for non-compliance of the act.
For sectors having less than 10 employees can complain at the Local Complaints Committee (LCC). It can receive complaints regarding sexual harassment at the workplace, or when the complaint is against the employer. Under section 6 of this act, The LCC committee is mandatory. LCC is important for women working in unorganised sectors or for domestic workers.
SEXUAL HARASSMENT AT WORKPLACE – CASE LAWS IN INDIA
Vishaka & Others VS. State of Rajasthan (1997)- was a landmark judgment that laid down guidelines for establishments dealing with complaints regarding sexual harassment.
Facts of the case- A Dalit woman named Bhanwari Devi was employed by the government of Rajasthan, for a programme related to rural development. During her employment, she tried to restrain the practice of child marriage. Because of this, she was brutally gang-raped in 1992.
During that time there were no formal guidelines on how to deal with sexual harassment at workplace. It was later observed that women working in the industry faced many problems on a daily basis, thus there was a need to have guidelines related to sexual harassment at the workplace.
Along with Vishaka many other women’s rights activists and lawyers came forward to file a Public Interest Litigation (PIL) before the Supreme Court of India.
As a result of the PIL filed by Vishaka and four other women’s organizations,
‘Vishaka Guidelines’ was created.
In August 1997, a judgment was passed by a three-judge bench, dealing with guidelines related to sexual harassment at workplace. The passing of this judgment was seen as a huge victory for the women in India, as before this there were no laws to protect women from sexual harassment. The issue of sexual harassment came to light because of this case in India in 1997. The court also held that the act of sexual harassment violates Articles 14, Article 15, Article 19 (1)(g) and Article 21 of the Indian Constitution. The main objective of the Supreme Court was to ensure gender equality among everyone, and that there should be no discrimination towards women at the workplace.
Apparel Export Promotion Council v. A.K Chopra- This was the first case that came before the Supreme Court after Vishaka guidelines were issued. The Supreme Court declared that physical touch is not necessary for sexual harassment to take place. Any kind of inappropriate sexual advances physical or not verbal or non-verbal results in sexual harassment. Any attempt or act of molestation by a senior official will result in sexual harassment.
Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill- The definitions of the terms ‘modesty’ and ‘privacy’ have changed in such a way in this judgment that any kind of inconvenience or harassment occurring in a woman’s life is considered as an offence.
Medha Kotwal Lele & Ors. V. Union of India & Ors.- The judgment of this case made it mandatory for all states and union territories to implement the vishaka guidelines. Notwithstanding the guidelines, the aggrieved party can approach the respective high courts.
PROTECTION OF MEN FROM WORKPLACE HARASSMENT
In India, we talk about gender equality in fields like employment, salary, promotion, etc., and to a point, we do have it. When we speak about topics like gender equality, harassment, rape, and acid attacks we always think of the victim as a female, why so?
In India, all laws related to harassment only consider women as victims and men as an offender. All these laws are in favour of women giving them more authority, and making a man vulnerable to the misdeeds of our society. The laws given do not consider the fact that even men become the victims. Being a man in this world is not easy as you are always considered to be strong physically, mentally as well as emotionally. It is a set rule in society as well as the court that the wrong-doer is always a man and a woman can never do wrong and is weaker than men.
Many times, women take revenge either from their boyfriend, husband, or any other man playing the victim card in society, as they know, all laws are in their favour, and shedding a few tears can turn the table against a man.
Women even blackmail men to get their work done, if denied they file a complaint against them. It is true that some men are really the culprits but half of them are innocent and have been put in trouble.
When a man faces harassment, he prefers not to speak up because as per society it’s a shameful thing. And it would be tough for him to prove it and get justice. Men also do face harassment at workplace, they do feel uncomfortable if they are touched without consent, and they receive pornographic texts or emails to put them in trouble
WORKPLACE HARASSMENT LAWS FOR TRANSGENDER
In the case National Legal Services Authority v. Union of India, the judgment passed by the Supreme Court declared transgender persons as a third gender, apart from binary genders. This judgment was followed by the Transgender Persons (Protection of Rights) Act, 2019. Section 9 of this act states that there shall not be any discrimination against a transgender person in matters relating to employment, promotion, etc.
This act does not include any penalties for workplace harassment in regard to a transgender person. They should also get protection from harassment at the workplace, as in India not everyone has accepted them even if the legislation has. They do face verbal harassment a lot. To help them feel safe and included at their workplace we need laws that include them.
CONCLUSION
Workplace harassment is becoming common in India, we need to educate all employees about their rights against this harassment. India needs harassment laws that treat men, women, and transgender equally.
As we can see, the majority of laws are in favour of women, which should be equal for all. Some suggestions that could be beneficial for all genders would be
The committees which will be set up for grievances and redressal should include a person from all three genders so that the employees feel comfortable reporting their problems.
Washroom set-up should include male, female as well as transgender.
Employees should be educated on gender inclusiveness and acceptance of transgender.
The POSH Act, 2013 should include men and transgenders. And should make sure that the complainant’s identity is kept anonymous.
These were a few suggestions that could be the beginning steps for gender-equal laws in India.
While India legislated the Sexual Harassment of Women at Workplace Act, 2013 which helps recognize sexual harassment towards women at workplace, could be amended and made inclusive of men and transgender. All genders are vulnerable towards harassment at the workplace and should be equally protected by law.
This article is written by Anisha Nair of Rizvi Law College.