Sexual harassment in workplace is often considered an issue related to women’s rights. It therefore ends up being neglected as the labour issue it represents. As a serious form of misconduct in the workplace, sexual harassment severely impacts not only employment of women, but also the workplace environment, company reputation and business. The need to address the problems regarding sexual harassment was addressed by the Supreme Court (SC) in 1997 in Vishakha vs. State of Rajasthan (Vishakha judgement) where guidelines were framed and directions were provided to the Central Government to enact a law. However, it was not until 2013 that a concrete law – the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) was brought into effect.
Sexual harassment | The Need for Legislation
A perusal of the SC’s judgement brings out the wide gaps that existed in the absence of a legislation addressing sexual harassment. The bench comprising of the then Chief Justice of India, J S Verma, Sujata Manohar and B N Kirpal noted that every incident of harassment results in the violation of the fundamental rights of gender equality and right to life and liberty. It violates the right to engage in any occupation and the right to life, which also means the right to live with dignity. The meaning and content of fundamental rights guaranteed in the Constitution were seen as sufficient to encompass all facets of gender inequality including sexual harassment or abuse at workplaces. The absence of a legislative framework, however, made intervention for preventing or redressing incidents of harassment impossible. Taking note of the existing legal vacuum, the bench stated that effective prevention, prohibition and redressal required some guidelines that were binding and enforceable. (Supreme Court of India, 1997)
Vishakha Guidelines and POSH Act
As per the Vishakha judgement, ‘sexual harassment’ includes unwelcome sexually determined behaviour such as physical contacts and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography or any other unwelcome physical or non-verbal conduct of sexual nature. An employer is responsible for preventing or deterring such acts and providing procedures for resolution and prosecution. The creation of an enabling mechanism was necessitated for resolving the complaints made by a victim in a time bound manner.
Despite the fact that the above guidelines
were binding, their implementation remained faulty. Fourteen years following the judgement, a joint parliamentary committee recommended a law that could be effective enough for safeguarding rights of women at workplace (Sarpotdar, 2017). This followed the implementation of the POSH Act in December 2013. The Act is seen as a form of affirmative action under Article 15 of the Constitution,
The definition of sexual harassment in the POSH Act is the same as the one in the Vishakha guidelines (MWCD, 2013). Under Section 4 of the Act, an Internal Complaints Committee (ICC) is to be constituted by the employer at every branch or office with ten or more employees, to hear and redress grievances pertaining to sexual harassment. Not less than two members should be from amongst employees, known as the ‘internal members’, of which one should be a woman. One external member to the ICC is also required, who should be from an NGO or association committed to the cause of women or persons familiar with issues relating to sexual harassment—with a minimum of five years of experience in the field of woman empowerment, particularly in issues of sexual harassment. In instances where the complaint is against an employer where an ICC does not exist on account of a workplace having less than ten employees or to investigate complaints originating from the unorganised sector, the government is required to set up a local complaints committee (LCC) at the district level.
Gaps in the Legislation
The Vishakha guidelines were a novel approach towards addressing sexual harassment at workplace because they directed the employers to include external members in the ICC. The SC noted that this was a necessity because senior members at a workplace can often exert undue influence on the workings of the ICC (Supreme Court, 2013). Employers often avoid the appointment of an external member because they perceive incidents of sexual harassment a matter concerning the organisation alone and the presence of an external member is seen as an interference (Sarpotdar, 2017). While appointment of an external member is essential under Section 4 of the POSH Act, the rules governing ICC meetings do not necessitate the presence of the external member. In the absence of a mandatory provision regarding ICC meetings, there is a high chance that employers can mould it to suit their interests. External members can be excluded from the key meetings, even complaint proceedings, thus diluting the fairness with which a proceeding is initiated and concluded. The external member, as provided under the Act, is a non-partisan expert who can ensure that proceedings are professional, fair and unbiased (Kapur, 2013). Therefore, the necessity of including an external member needs to be acknowledged in both the Act and by the employers.
Speaking with G’nY, Kavita Krishnan, Secretary of All India Progressive Women’s Association notes, “The implementation of the POSH Act cannot be achieved unless it is tied in with the labour laws of the country. While the problems of sexual harassment are pervasive and difficult to report in a corporate work environment, the situation worsens when incidents occur in industrial workplaces with working class women, who do not have any access to the higher management. Harassment, including both verbal and physical abuse is seen as a tool of discipline and control by supervisors.”
But the inclusion of an external member in the quorum of proceedings alone cannot suffice. As Dr Shashi Bala, fellow at the V V Giri National Labour Institute notes, “Employers need to adopt a zero tolerance approach towards any act of sexual harassment and this should be clearly mentioned in the letter of appointment. Internal members of the ICC should also undergo training on the prevention of sexual harassment, as directed under the Act, to both sensitise them and to ensure they conduct proceedings in a professional and unbiased manner.”
Implementation of the POSH Act
Five years have elapsed since the passing of the Act, but it still remains lax. A 2015 study (Ernst and Young, 2015) found that 18 per cent of companies surveyed had not constituted an ICC and 13 per cent were still in the process of setting them up. Disaggregated results of Indian and multinational corporations (MNCs), showed that 36 per cent and 25 per cent of them respectively, had not set up an ICC. Over a quarter of the large companies and half the small and medium companies surveyed were not compliant with the Act despite the fact that the POSH Act has penal provisions where the employers can fined up to INR 50,000 for non-compliance. In fact they can have their licences revoked if such non-compliance continues. Various workplaces are either indifferent or unaware of the binding nature of the Act as are
Various countries have made employers vicariously liable for any acts of harassment conducted by their employees through stringent legislations. Under Australia’s Sex and Age Discrimination Act, 2011 for example, while the perpetrators are to be held primarily responsible—the company and employers are also liable for punishment unless they actively took steps to prevent it from occurring. Similarly, in the United States, an employer is subject to vicarious liability if the act of sexual harassment is committed by ‘a supervisor with immediate (or successively higher) authority over the employee’ (EEOC, 2013). If the employers can be held liable not only for the failure to constitute an ICC, but also for the acts of their employees, it helps create an environment where women are not sceptical about bringing incidents to the notice of the management (Smith and Viviers, 2016).
Two decades after the Vishakha judgement, various issues related to sexual harassment in workplaces still continue to be unresolved. Organisations will continue to evade responsibilities unless the government takes rigorous steps to ensure that every workplace required to institute an ICC is following the mandates. Apart from a provision that penalises failure to form ICC, it is imperative that employers be made liable if they are unable to create an environment where sexual harassment can
be curtailed and stopped.
Equal Employment Opportunity Commission (EEOC), 2013. Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors, Available at: https://bit.ly/2HMCtAD
Ernst and Young, 2015. Reining in sexual harassment at the workplace in India, Available at: https://go.ey.com/2tSMm6L
Ministry of Women and Child Welfare (MWCD), 2013. The Sexual Harassment of Women at Workplace Act, 2013, Available at: https://bit.ly/2tQ1Kkb
Sarpotdar A., 2017. What it takes to implement a law on sexual harassment at workplace in India, LiveLaw, October 18.
Smith D. and Viviers D., 2016. Vicarious Liability of The Employer In Sexual Harassment Cases: A Comparative Study, Journal of Business, 1 (1): 41-59.
Supreme Court of India, 1997. Vishakha vs. State of Rajasthan and Ors., (1997) 6 SCC 241, Available at: https://bit.ly/2Fginun