Legal Definitions of Sexual Harassment
Legal Definitions of Sexual Harassment
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
According to [Section 2 n]
"sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—
i. physical contact and advances; or
ii. a demand or request for sexual favours; or
iii. making sexually coloured remarks; or
iv. showing pornography; or
v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Dr Prasad Pannian v. Central Univeristy of Kerala : Kerala High Court
WP(C).No.9219 OF 2020(B)
Court clarified that that any form of sexual approach or behaviour that is unwelcome will come under the definition of 'sexual harassment' and it is not confined to any of the sub clauses mentioned in Section 2(n),which of course will depend upon the materials placed on record and on a case to case basis. But it is made clear that in order to take action under the 2013 Act, the acts complained of should come within the purview of S.2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the respondent.
Sexual harassment is a legal term, created for the purpose of ending harassment and discrimination against women in the workplace. The term is constantly being redefined and extended in legislation and court decisions. However, not all sexual behavior in the workplace is harassment, and the laws against sexual harassment do not extend to situations outside the workplace or school.
The basic definition of sexual harassment comes from the United Stated Equal Employment Opportunity Commission (EEOC):
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.
Judgement by Supreme Court of India
Apparel export promotion Council Vs A.K, AIR 1999 SC 625: (19999) ISCC 759.
An incident of sexual harassment of a female at the place of work amounts to a violation of our fundamental right to gender equality under article 16(2) of the Constitution of India.
Nisha Priya Bhatia v. Union of India & Anr. CA No. 2365/2020 (Supreme Court of India)
" The approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment, but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace."
A case where a complaint was filed on 7/8/2007. The victim was being harassed by asking her to join a sex racket running inside the organization for securing quicker promotions and upon refusal to oblige, she was subject to persecution. Enquiry was conducted in terms with the judgment in Vishaka (supra). It is in the said background that the Apex Court had the occasion to refer to the scheme of the2013 Act,Vishaka (supra) guidelines and the Convention on Elimination of All Forms of Discrimination against Women(CEDAW).
Landmark case and judgement by the Supreme Court of India on sexual harassment
Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997
In the Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997, Supreme Court of India took serious note on sexual harassment on woman and issued directions to ensure laws and guidelines for safety of women at workplace.
Further the Supreme Court of India (SCI) stated that sexual harassment and woman is clear violation of fundamental rights of the woman and also defined what is meant by sexual harassment on woman at workplace and what sort of acts are treated as sexual harassment and shall be punishable seriously. The acts which are treated as sexual harassment and woman at workplace are "Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment. Effective complaints procedures and remedies, including compensation, should be provided. "
The SCI in its judgement clearly stated that the fundamental rights in the Constitution of India mentioned below should not be deprived by any woman
Article 14: Equality before the law
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
Article 19 (1)(g): Right to practice one’s profession, or to carry on any occupation, trade or business
Article 21: Right to life and personal liberty
Visakha v. State of Rajasthan & Others [(1997) 7SCC 323] came to be decided at a time when there was no statutory provision to provide for the effective enforcement of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces. Those guidelines were formulated to be strictly followed in all workplaces for the preservation and enforcement of the right to gender equality of working women. Directions issued by the Apex Court in the said judgment were to remain in force until suitable legislation is enacted to occupy the field. It is there after that the 2013 Act came into force, which provided for taking disciplinary action against such persons involved in sexual harassment of women at any workplace and also the penal consequences thereof. Chapter II of the Act dealt with constitution of Internal Complaints Committee and every employer of a workplace was bound to constitute a Committee known as the Internal Complaints Committee. The constitution of such Committees has also been specifically mentioned in Section4. Chapter III deals with constitution of Local Complaints Committee which authority has to function in respect of complaints of sexual harassment from establishments where the Internal Committee has not been constituted. Chapter IV deals with complaint. Section 9 is Complaint of sexual harassment
The GUIDELINES and NORMS prescribed herein are as under:-
HAVING REGARD to the definition of 'human rights' in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:
1. Duty of the Employer or other responsible persons in work places and other institutions:
It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.
For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.
Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.
3. Preventive Steps:
All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:
(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
4. Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action:
Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.
6. Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.
7. Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than half of its member should be women.
Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.
The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.
'Denial Of Timely Inquiry By Competent Forum, Inevitably Results In Denial Of Justice' [Sexual Harassment] : Supreme Court of India
Nisha Priya Bhatia v. Union of India & Anr. CA No. 2365/2020 (Supreme Court of India)
"A priori, when inaction or procrastination (intentionally or otherwise) is meted out in response to the attempt of setting the legal machinery in motion, what is put to peril is not just the individual cries for the assistance of law but also the foundational tenets of a society governed by the rule of law, thereby threatening the larger public interests. The denial of timely inquiry and by a competent forum, inevitably results in denial of justice and violation of fundamental right."
"In the present case, the petitioner had faced exceedingly insensitive and undignified circumstances due to improper handling of her complaint of sexual harassment. Regardless of the outcome of the inquiry into the stated complaint, the fundamental rights of the petitioner had been clearly impinged. Taking overall view of the circumstances, we consider this to be a fit case to award compensation to the petitioner for the stated violation other right to life and dignity, quantified at Rs. 1,00,000/-."
8. Workers' Initiative:
Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.
Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.
12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.
This definition has been further elaborated:
Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser's conduct must be unwelcome.
Most states also have laws against sexual harassment that may differ slightly from the federal definition.
the first ever reported case of male sexual harassment was in the United States in 1995, when a female superior at Dominoes pinched the male manager's butt. The EEOC sued the outfit and the manager was paid $237,000 in damages.
Employees cannot have a choice to object transfer unless if it was proved to be mala fide and involves sexual harassment : Supreme Court of India
A senior lady officer of a public sector bank of scale IV was sexually harassed by her superior and transferred to the distant place where the bank branch can be handled by officer of the scale I rank, as a reprisal to the complaints made by her to superiors as to the irregularities observed by her in the bank branch. Subsequently lady officer approached (internal complaints committee) ICC wherein, the matter was diluted because of the members were biased.
The order of transfer was challenged before the High Court of Madhya Pradesh under article 226 of the Constitution, where the High Court has taken note of the fact that the respondent had drawn several irregularities to the notice of the higher authorities and the transfer was mala fide, as a reprisal to the action which had been initiated by the lady officer and the allegations which she had levied against the higher authorities. Accordingly the transfer order was stayed by the horrible High Court.
The matter came before the Supreme Court of India, where it was held that internal complaints committee shall be formed strictly according to the section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, with an object to commit to the cause of women or a person familiar with issues relating to sexual harassment at workplace and directed the bank authorities to repost the lady officer to the branch where she was last working, with entitlement of litigation costs Rs. 50,000/- from the bank which shall be paid over within one month from the date of order of the Supreme Court of India.
There are two legally recognized types of sexual harassment:
quid pro quo sexual harassment
hostile environment sexual harassment.
The victims of sexual harassment are more likely to bring charges and take legal actions against employers and harassing individuals than they were in the past. According to EEOC statistics, well over 90% of the sexual harassment charges filed have involved harassment of women by men. However, some sexual harassment cases have been filed by men against women managers and supervisors and for same-sex harassment.
Two types of sexual harassment are defined as follows.
Quid pro quo harassment occurs when an employer or supervisor links specific employment outcomes to the individuals’ granting sexual favors.
Hostile environment harassment occurs when the harassment has the effect of unreasonably interfering with work performance or psychological well-being or when intimidating or offensive working conditions are created.
QUID PRO QUO
Linking any condition of employment—including pay raises, promotions, assignments of work and work hours, performance appraisals, meetings, disciplinary actions, and many others—to the granting of sexual favors can be the basis for a charge of quid pro quo (meaning “something for something”) harassment. Certainly, harassment by supervisors and managers who expect sexual favors as a condition for a raise or promotion is inappropriate behavior in a work environment. This view has been supported in a wide variety of cases.
The second type of sexual harassment involves the creation of a hostile work environment. In Harris v. Forklift Systems, Inc., the U.S. Supreme Court ruled that in determining if a hostile environment exists, the following factors should be considered.
Whether the conduct was physically threatening or humiliating, rather than just offensive
Whether the conduct interfered unreasonably with an employee’s work performance
Whether the conduct affected the employee’s psychological well-being Numerous cases in which sexual harassment has been found illustrate that what is harmless joking or teasing in the eyes of one person may be offensive and hostile behavior in the eyes of another. Commenting on dress or appearance, telling jokes that are suggestive or sexual in nature, allowing centerfold posters to be on display, or making continual requests to get together after work can lead to the creation of a hostile work environment.
Sexual harassment occurs when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.
According to a current issues update from the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment occurs, "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."
Changing Legal Standards on Sexual Harassment
In 1998, the U.S. Supreme Court issued rulings in three different cases in which charges of sexual harassment were brought by different individuals working for different employers. Grouping these cases together, the U.S. Supreme Court issued decisions that significantly clarified both the legal aspects of when sexual harassment occurs and what actions employers should take to reduce their liabilities if sexual harassment claims are filed. A look at the implications of the three cases follows.
DEFINITION OF SEXUAL HARASSMENT
First, the three decisions make it clear that sexual harassment, whether quid pro quo or hostile environment, or whether with different or same-sex individuals, is illegal. The courts will look at the conduct and actions of both the employer’s representatives and the complainants.
TANGIBLE EMPLOYMENT ACTIONS
As figure indicates, if the employee suffered any tangible employment action (such as being denied raises, being terminated, or being refused access to training) because of the sexual harassment, then the employers are liable. However, even if the employee suffered no tangible employment action, and the employer has not produced an affirmative defense, then employer liability still exists.
AFFIRMATIVE DEFENSE AND REASONABLE CARE
Only if the employer can produce evidence of an affirmative defense in which the employer took reasonable care to prohibit sexual harassment does the employer have the possibility of avoiding liability.