LEGAL PROVISIONS FOR SEXUAL HARASSMENT AT WORKPLACE: A COMPARATIVE ANALYSIS OF INDIA AND USA

Articulated by Gunjeeta Jangra

ABSTRACT

Sexual Harassment at workplace discriminates against the employee on the basis of his or her sex. This often leads to the violation of the employees’ basic rights and affects their work efficiency and lifestyle also. In India, we have several legal provisions in the Indian Penal Code, 1860, labour laws and POSH Act, 2013 which protect women employees at workplace from the sexual harassment. The United States of America has provisions in Title VII of the Civil Rights Act, 1964 which prohibits discrimination on the basis of race, colour, religion, nation or sex at employment. This article aims to create a comparative analysis of laws against sexual harassment at workplace in both countries.?

Keywords:?POSH Act 2013, sexual harassment, workplace, women, India, Title VII, Civil Rights Act 1964, USA.

INTRODUCTION

Sexual Harassment is a kind of discrimination based on the sex of the victim which violates the victim’s fundamental rights such as the right to equality, the right to life and live with dignity and the right to privacy. Sexual Harassment is defined as “sexually unwelcome behaviour or act, directly or implied, which may include physical contact, demanding sexual favours, making sexually coloured remarks, or showing pornography, or any other unwelcome physical, verbal or non-verbal conduct of sexual nature.” in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.[1]?Sexual Harassment at the workplace usually involves demanding sexual favours for employment-related benefits or promotions.?

This is a serious issue faced by employees across the globe which often discourages them to participate in employment work, reduces their efficiency at work, and indirectly, also affects the business. Sexual harassment at the workplace infringes upon the individual’s fundamental right to work under Article 19(1)(g) provided in the Indian Constitution as it often forces them to be absent or leave the job due to trauma caused by such harassment and often creates an unhealthy environment for the victim to work in.[2]?Many countries have enacted several legal provisions related to sexual harassment at workplace either in their labour laws or specifically dedicated acts. This article aims to draw a comparative analysis of the legal provisions against sexual harassment at the workplace in India with the United States of America.?

LEGAL PROVISIONS AGAINST SEXUAL HARASSMENT AT WORKPLACE IN INDIA

In India, before the enactment of the dedicated act towards sexual harassment at workplace in 2013, there were some provisions which deal with and criminalise the sexual harassment faced by women in India in the following acts:

• Indian Penal Code (IPC), 1860?

Section 354 of the IPC??provides punishment for “Assault of criminal force to woman with intent to outrage her modesty.”[3]?Through the Criminal Law Amendment Act, 2013, several other provisions were added to the section. Section 354A was also inserted which defines “sexual harassment” as an offence individually and provides the punishment for the same.[4]?Section 509 of the IPC provides the punishment for insulting a woman’s modesty by the use of words, acts, or gestures.[5]

• Industrial Employment (Standing Orders) Act, 1946.

The Standing Orders Act, 1946 is an Indian labour law which requires an employer in an industrial establishment with more than 100 employees to set up some standing orders i.e. rules such as wages, number of working, disciplinary actions, leave, holidays etc. which are to be followed by the employees at the workplace in order to maintain a safe and healthy work environment.[6]?The Industrial Employment (Standing Orders) Central Rules, 1946 (“Standing Orders Rules”) includes and defines “sexual harassment” under certain other misconducts and also provides the formation of a Complaints Committee for the inquiry in the matters of complaints pertaining to the sexual harassment at workplace.[7]

• Indecent Representation of Women (Prohibition) Act, 1987.?

The Indecent Representation of Women (Prohibition) Act, 1987 prohibits harassment by “indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner.”[8]?In Section 7, the act holds the company and the people involved in the commitment of such offence liable for the punishment.[9]

Though there were various legal safeguards which punished sexual harassment in India, there was no legislation which was dedicated to the offence of sexual harassment against women at the workplace specifically. Thus, the Supreme Court of India in 1997 laid down guidelines in the case?Vishaka v. State of Rajasthan?which are known as “Vishakha Guidelines”. Following these guidelines, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act was enacted in India in 2013.

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

This Act is commonly called the Prevention of Sexual Harassment (POSH) Act, 2013 (”The Act”) is a dedicated act containing provisions for sexual harassment at workplace in India. The preamble states that POSH Act is to “provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment.”.[10]?The definitions of the employer and employer are quite exhaustive. The employee in the Act possibly covers each case in the employment, may it be a full-time or contract-based employee or an apprentice, a voluntary or remuneration-based employee under Section 2(f) of the Act.[11]

The Act covers promise of preferential or threat of detrimental treatment in her employment, humiliating behaviour affecting her mental health and creating a hostile or offensive work environment under the ambit of Sexual Harassment at workplace.[12]?Under the Act, the workplace includes organised as well as unorganised and private as well as public sector workplaces, including the place visited by an employee in the course of employment and a dwelling place or a house, therefore covers almost every possible workplace under its scope.[13]?This act provides for the establishment of an Internal Complaints Committee to inquire into the sexual harassment complaints by any woman at the workplace with more than ten employees and if the number of workers is less than ten or the complaint is against the employer, the Local Committee constituted at the district level under the act, will inquire and take action against the sexual harassment complaint by the victim.[14]

LEGAL PROVISIONS AGAINST SEXUAL HARASSMENT AT THE WORKPLACE IN THE UNITED STATES OF AMERICA (USA)

In the USA, the legal provisions for sexual harassment at workplace are found in the Federal Fair Employment Law, and mainly in the Title VII of the Civil Rights Act of 1964 (referred to as “Title VII”). They are interpreted by the enforcement agency, the Equal Employment Opportunity Commission (EEOC) and the federal courts.[15]?Title VII prohibits discrimination on the basis of an individual's race, colour, religion, sex or national origin in employment, and makes it an unlawful employment practice if, on the basis of sex, any discrimination happens at the workplace with more than 15 employees.[16]?In 1980, the enforcement agency, EEOC issued guidelines which made sexual harassment as a form of discrimination on sex and violative of the Title VII of the Civil Rights Act of 1964.[17]

In 1990, the EEOC issued guidelines which provided extensive details, defined what makes the sexual harassment, what the liabilities of the employer will be and how these will be determined.[18]?These guidelines divided sexual harassment at workplace into two types namely “quid pro quo”, in which the victim is harassed which affects his/her employment status, and “hostile environment” sexual harassment, in which a hostile, intimidating or offensive environment gets created for the victim. A hostile environment sexual harassment will be considered sexual discrimination even if it causes no tangible or economic consequences to the victim.[19]?The US federal laws regarding sexual harassment are quite strict when it comes to the liability of employers in cases of sexual harassment at workplace.?

In 1991, the Civil Rights Act of 1991 was introduced which made several procedural and substantive changes.[20]?Before this Act, in civil actions, the victim could get injunctive relief or back pay award in the remedies. After this Act, the remedies also included compensatory and punitive damages in addition to other reliefs to the victim. Certain employees of the executive and legislative branches of the federal government were also covered under the ambit of the employee.[21]

COMPARATIVE ANALYSIS OF BOTH COUNTRIES

Laws against sexual harassment at workplace of both countries are strict and try to cater for the cases in their jurisdictions. But on comparing legal provisions in both jurisdictions, there are some notable points which need to be mentioned. India should take inspiration from US laws on sexual harassment at workplace and try to incorporate some of the suitable provisions in its laws to bring more clarity in the terms, make the law more strict and hence, enhance the scope and improve the applicability.

• BROADNESS OF THE TERM “SEXUAL HARASSMENT”

The laws in both countries try to cover every possibility under sexual harassment such as demanding sexual favours, or any sexual activity which is offensive and unwelcomed by an individual but the US Federal laws against sexual harassment at workplace go beyond this and cover every discrimination that was based on “sex” of the individual. For instance, a man/woman was not promoted despite being capable or was demoted only because of his/her “sex”.?

Under US Laws, the harassment need not always be of sexual nature and this has been upheld many times by their courts. It would be considered sexual harassment at workplace if the discrimination in employment was based on the sex of the individual.[22]?For instance, in the case law?Andrews v. City of Philadelphia, it was held “Intimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.”[23]

• CLARITY IN THE TERMS?

Under the US laws, there are guidelines set by the Equal Employment Opportunity Commission (EEOC) and the federal courts about what factors need to be kept in view to determine what makes any sexual conduct/act “unwelcome” by the individual and a working environment “hostile or offensive” for an employee to bring an action against sexual harassment at workplace. Both these terms are also used in the POSH Act, 2013 but what will define the “unwelcome” act and what makes the environment “hostile” in Indian Laws for the woman remain ambiguous.

• PROTECTION EXTENDED TO WHICH SEXES?

This is an undeniable fact that sexual harassment can take place against any sex, male, female or transgenders, but the Indian Laws extend their protection from sexual harassment at workplace to women only which is evident from the preamble of the POSH Act, 2013 also.?

Whereas, under federal laws in the USA, men employees also can bring an action against sexual harassment at the workplace.[24]?Under US laws, a harasser does not need to be of the opposite sex which means that the victim and harasser can belong to the same sex also.[25]

• EXTENT OF LIABILITY OF EMPLOYERS?

Both countries’ laws held employers liable for sexual harassment at workplace cases such as if they do not fulfil their responsibilities set out in the laws or fail to take adequate actions even after having knowledge of the instances of sexual harassment at workplace.?

But the US Laws are more strict when it comes to the employers’ liabilities in these cases. For instance, under Title VII, an employer is automatically liable in the instances where the harasser took “tangible employment actions” such as demoting and if the harasser is one of the company’s highest officials.[26]

CONCLUSION

Sexual harassment at Workplace is a global issue faced by employees at their workplaces from their co-workers, seniors authorities, employers and sometimes, customers. Most countries have introduced legal provisions against the same. This article made a comparative analysis of sexual harassment at workplace laws in India and the United States of America. Though both countries have several provisions in their laws regarding sexual harassment at workplace and provide compensatory and punitive damages in the cases of civil action by the victim, the Indian laws need to explain the terms such as unwelcomed or hostile environment clearly so that there is no ambiguity in the interpretation of the same. While employers under Indian laws are held liable for instances of sexual harassment at their offices or the workplace, the US laws are more strict in this horizon. The Indian laws against sexual harassment at workplace are gender biased towards the women employees and do not cover the men employees under its ambit. Therefore, some of these provisions from the US laws can be incorporated into the Indian laws to ensure the protection of every employee at the workplace and safeguard their fundamental rights which get violated by instances of sexual harassment at the workplace on the basis of their sex.

FAQs.

1. Which Sections in the Indian Penal Code (IPC), 1860 contain the provisions regarding sexual harassment and which Section defines and punishes the offence of sexual harassment?

Ans: Section 354 and Section 509 of the Indian Penal Code (IPC), 1860 contain the provisions regarding sexual harassment. Section 354A of IPC, 1860 which was inserted in 2013, defines and punishes the offence of sexual harassment.

2. Which act/s contains provisions against sexual harassment at the workplace apart from POSH Act, 2013 in India?

Ans: Indecent Representation of Women (Prohibition) Act, 1987 and Industrial Employment (Standing Orders) Act, 1946.

3. Are male employees protected against sexual harassment at workplaces in India?

Ans: No, the Indian Laws do not have provisions for men employees in case they face sexual harassment at workplace, but the US laws do provide protection against sexual harassment at workplace, irrespective of the victim’s and the harasser’s sex.

4. Which law governs sexual harassment at workplace in the United States of America?

Ans: The Title VII of the Civil Rights Act of 1964 which is commonly called “Title VII” governs the sexual harassment at workplace faced by the employees in the USAand this is interpreted by the enforcement agency, Equal Employment Opportunity Commission.

5. Equal Employment Opportunity Commission in its 1990 guidelines recognised how many types of sexual harassment at workplace?

Ans: Equal Employment Opportunity Commission in its 1990 guidelines recognised two types of sexual harassment at workplace, which are “quid pro quo” and “hostile environment” sexual harassment.

[1]?The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 2(n).

[2]?Constitution of India, art 19(1)(g).

[3]?Indian Penal Code 1860, s 354.

[4]?Indian Penal Code 1860, s 354A.

[5]?Indian Penal Code 1860, s 509.

[6]?Industrial Employment (Standing Orders) Act 1946.

[7]?The Industrial Employment (Standing Orders) Central Rules 1946.

[8]?Indecent Representation of Women (Prohibition) Act 1987.

[9]?Indecent Representation of Women (Prohibition) Act 1987, s 7.?

[10]The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013.

[11]?The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 2(f).

[12]?The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, s 3.

[13]?ibid.?

[14]?ibid.?

[15]?Wisconsin Legislative Council, ‘Overview of State and Federal Law on Sexual Harassment’ (1992) <https://www.ojp.gov/ncjrs/virtual-library/abstracts/overview-state-and-federal-law-sexual-harassment> accessed 20 May 2023.?

[16]?ibid.?

[17]?ibid.?

[18]?ibid.

[19]?ibid.

[20]?ibid.

[21]?ibid.

[22]?Equal Employment Opportunity Commission, ‘Sexual Harassment’ <https://www.eeoc.gov/sexual-harassment#:~:text=It%20is%20unlawful%20to%20harass,harassment%20of%20a%20sexual%20nature> accessed 20 May 2023.?

[23]?supra note 15.?

[24]?supra note 22.?

[25]?supra note 22.

[26]?The University of California, Berkeley, School of Law, ‘An Overview of U.S. Sexual Harassment Law’ <https://executive.law.berkeley.edu/wp-content/uploads/2018/05/US-Sexual-Harassment-Law.pdf?> accessed 21 May 2023.?