Sexual harassment at the workplace affects women in India due to the structural patriarchy that still dominates our society. Different countries are dealing with the problem by either reacting or pro-acting to the salient situations of harassment at the workplace. Some of the reasons for sexual harassment of women at the workplace could be the male superiority complex, sexual perversion of mind among specific individuals, jealousy at the workplace, or feelings of contempt and disrespect for women. Women have long faced gender-based discrimination, and thus an Act was required to protect their rights.[i] The POSH law aims to empower women to fight sexual harassment in the workplace. Over the years, this law has assisted many women in obtaining justice for sexual harassment in the workplace.
The Vishaka v. State of Rajasthan
The Vishaka v State of Rajasthan[ii] also known as the Bhanwari Devi case was the first case that came up with Vishaka Guidelines to protect women from sexual harassment in the workplace.
Facts: Bhanwari Devi was a worker and activist who was employed in the Women’s Development Project by the government of Rajasthan. Bhanwari Devi tried to prevent the marriage of a one-year-old. Due to which the villagers harassed, threatened, and socially boycotted Bhanwari Devi. In September 1992, five villagers raped her in the presence of her husband. The trial court of Rajasthan acquitted the five accused, due to which a group of five NGOs under the name of Vishaka filed a PIL in the Supreme Court seeking detailed directions on how sexual harassment of women at the workplace could be prevented through the judicial process.
Issue: Whether, the strict passing of Vishaka guidelines is mandatory for the prevention of sexual harassment of women at the workplace?
Judgment: The Supreme Court gave out a few guidelines to protect women from sexual harassment at the workplace such as:
The person employing the employees must make sure that sexual harassment is prevented in the workplace at all times. It laid a specific definition of ‘Sexual harassment’ which included physical contact, demand for sexual favors, and so on. In case of Sexual Harassment, appropriate action must be taken under the Indian Penal Code and punishments must be given accordingly. There must be a complaints committee which should be headed by women and confidentiality must be maintained. If a third party is involved then there should be appropriate steps be taken to support the victim. The governments should ensure that the private sector employers are following the guidelines.
Gender Neutrality under the POSH Act
The POSH Act was constituted to protect women from any sexual harassment at the workplace. Although it was primarily made for women, it raised a bigger question that it may be discriminatory. If the other genders apart from women are faced with sexual harassment, the act does not provide them with any relief. There have been numerous debates about the gender-discriminatory nature of the POSH law and provides protection only to women, and the government and the judiciary are being biased in favoring women. There is also a lack in the system for men and the LGBTQ to file complaints on sexual harassment. This act could be more inclusive and expand the means of complaint redressal for other genders as well.
What can men facing Sexual Harassment in the Workplace do?
Male victims may also file complaints with the HR departments of their respective workplaces, and hold their ground for strict action against the perpetrators. While this cannot be equated to legal recourse, it is step towards ensuring that their ordeal stops. Similarly, organizations should take a progressive step and while implementing the Sexual Harassment at workplace Act, 2013 take note of not only building gender neutral policies but also include sensitization sessions on topics and incidents of sexual harassment against men in the workplace. Let us not forget that laws exist for guidance and not merely as a limitation[iii]
Gender Neutral POSH Policy by organizations
While the POSH Act needs amendments to address the concerns of people of all gender identities, there are still ways in which an organization and employer can ensure a safe workplace for all its employees irrespective of their gender identity.
Objectives of a gender-neutral POSH policy
The objectives of a gender-neutral POSH policy should be:
- To embrace the right to equality enshrined under Article 14 of the Constitution, and the right to decent living under Article 21[iv].
- To nurture a working environment that is socially and psychologically open and inviting for people of all gender identities, and
- To endeavour for gender justice on all institutional levels.
The preamble to the POSH policy
A POSH policy of an organization can be gender-neutral. In the policy, the organization can include a statement expressing no tolerance for the sexual harassment of employees of all gender identities.
The organization’s policy must strive to make all its employees aware of nurturing workplace culture. The policy should include a firm statement on the prohibition of the sexual harassment of all employees and not just cis women[v]. For instance:
“The policy prohibits sexual harassment in the workplace. The policy requires that all employees, partners, and associates of [Company Name] be sensitive to cultural differences. They should be mindful of their behavior towards the people they interact with in the workplace and in a work situation. Everyone in the workplace should recognize the cultural diversity and varied sensitivities of people. The policy discourages all acts and behavior that appear unnecessary to a person of ordinary prudence. The employees, partners, and associates of [Company Name] shall not act or behave in a manner that transcends the boundaries of cordiality expected in the workplace.”
Conclusion
The POSH Act does not mandate that an organization’s POSH policy needs to be gender neutral. However, there are other strategies that employers can adopt to make employees feel safe and comfortable in their working environment, in a gender-neutral manner. One way to do that is by incorporating a gender-neutral POSH policy. For example, many companies in India have adopted a POSH policy which clearly states that it is gender neutral and therefore, is based not just on the POSH Act, but on principles of Articles 14, 15, and 21 of the Indian Constitution. These Articles take into account a person’s right to equality, life, personal liberty, and discrimination.
Author: Isha Praneeth, School of law, Christ (Deemed to be University), Bangalore
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[i] Sexual Harassment at Workplace, 9 CPJLJ (2019) 256, http://www.scconline.com/DocumentLink/Ml0rruIW
[ii] AIR 1997 SC 2011
[iii] https://www.ungender.in/why-india-inc-needs-to-protect-men-against-sexual-harassment-at-workplaces-in-india-case-for-gender-neutral-policies/
[iv] The constitution of India
[v] https://www.ungender.in/how-to-draft-gender-neutral-posh-policy/
