November

20, 2017 SEXUAL HARASSMENT AT WORK PLACE

CENTRAL UNIVERSITY OF SOUTH

BIHAR
SCHOOL OF LAW AND GOVERNANCE

Subject- Research Methods and legal

writing

Project Topic
Sexual Harassment at work place
&
THE SEXUAL HARASSMENT ACT: A CRITICAL
ANALYSIS
SUBMITTED TO SUBMITTED BY
Dr.S.P.Srivastava Rohit Sinha
(Head & Dean) LL.M, 1 Smester
st

Session 2017-18
Enrollment No CUSB1713131016
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Acknowledgement
The writing a project has one of the most significant academic challenges I have ever faced.
Any attempt at any level can't be satisfactorily completed without the support and guidance of
learned people. Gratitude is a noble response of one’s soul to kindness or help generously
rendered by another and its acknowledgement is the duty and joyance. I am overwhelmed in
all humbleness and gratefulness to acknowledge our depth to all those who have helped us to
put these ideas, well above the level of simplicity and into something concrete effectively and
moreover on time.

My first obligation, irredeemable by the verbal expression, is to our subject teacher Prof. Dr.
S.P.Srivastava who has given me his valuable help in myriad way from the start to the very
end. He was always there to show us the right track when we needed his help. He lent his
valuable suggestions, guidance and encouragement, in different matters regarding the topic.
He had been very kind and patient while suggesting me the outlines of this project and
correcting my doubts. I thank him for his overall supports with the help of which I was able
to perform this project work.

I would like to extend the thanks to my parents for their selfless encouragement and support
given to me at critical junctures during the making to this project.

Last but not the least, I would like to thank my friends who helped a lot in gathering different
information, collecting data and guiding each other from time to time in making this project.

Rohit Sinha

CUSB1713131016
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AIMS AND OBJECTIVE

The aim of researcher, in doing the research work is to give a broad outline of Sexual
Harassment at work place & Critical analysis of Sexual Harassment Act. The project will
further analyze the various aspect of “Sexual Harassment at work place & Sexual Harassment
Act” in contrast with the various judicial precedents which are relevant to the topic.

RESEARCH METHODOLOGY
As whole research work for this work is confined to the library and books and no
field work has been done hence researcher in his research work has opted the doctrinal &
Empirical methodology of research. Researcher has also followed the uniform mode of
citation throughout the project work.

SOURCES OF DATA
For doing the research work various sources has been used. Researcher in the
research work has relied upon the sources like many books of International Law, Articles,
and Journals. The online materials have been remained as a trustworthy and helpful source
for the research.

SCOPE AND LIMITATIONS

Though the researcher has tried his level best to not to left any stone unturned in
doing his research work to highlight the various aspects relating to the topic, but the topic
being so vast and dynamic field of law and whose horizon and ambit cannot be confined
and narrowed down, the research work has sought with some of the unavoidable
limitations.
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INTRODUCTION
Of all the forms that violence against women can assume, sexual harassment is the most
ubiquitous and insidious; all the more so because it is deemed 'normal' behaviour and not an
assault on the female entity. It affects women in all settings whether public or private and has
psychological, medical, social, political, legal and economic implications. Instances of sexual
harassment should not be viewed as isolated incidents; rather they should be construed as a
gendered aggression against the rights and dignity of women. The fact the extremely harmful
effects of Sexual Harassment are visible globally discounts any effort to view it with less
gravity than it deserves.

In India, it has been only six years since sexual harassment was for the first time recognised
by The Supreme Court as human rights violation and gender based systemic discrimination
that affects women’s Right to Life and Livelihood. The Court defined sexual harassment very
clearly as well as provided guidelines for employers to redress and prevent sexual harassment
at workplace.

While the Apex Court has given mandatory guidelines, known as Vishaka Guidelines, for
resolution and prevention of sexual harassment enjoining employers by holding them
responsible for providing safe work environment for women, the issue still remains under
carpets for most women and employers.

Vishaka guidelines apply to both organized and unorganized work sectors and to all women
whether working part time, on contract or in voluntary/honorary capacity. The guidelines are
a broad framework which put a lot of emphasis on prevention and within which all
appropriate preventive measures can be adapted. One very important preventive measure is to
adopt a sexual harassment policy, which expressly prohibits sexual harassment at work place
and provides effective grievance procedure, which has provisions clearly laid down for
prevention and for training the personnel at all levels of employment.

As India’s economy continues to grow, helping millions of people live better and healthier
lives, one could be forgiven for thinking that the old problems that affected our parents and
grandparents generations are being left behind. You would expect to find this to be especially
true in the modern and dynamic workplaces of call centers and IT parks that are employing
millions and helping drive Indian economic growth. Unfortunately, while we have new
industries and economic progress, old problems have yet to be left behind.
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Sexual harassment has been found to be rife within India’s modern work places. A study
released last year, of 600 female employees working in IT and BPO industries and the first of
its kind, found that 88% of women were subject to sexual harassment in their workplace, with
supervisors often - in over 70% of cases – being to blame. In an international survey of over
12,000 people in 24 countries, India was found to have the highest rate of reports of workers
being sexually harassed by colleagues or supervisors. 25% also reported being assaulted at
their place of work.

UNDERSTANDING SEXUAL HARASSMENT

DEFINITION
Sexual harassment in the workplace is an unwelcome or unwanted attention of a sexual
nature from someone at a work place that causes discomfort, humiliation, offence or distress,
and / or interferes with the job. This includes all such actions and practices of a sexual
nature by a person or a group of people directed at one or more workers.1

According to The Supreme Court definition, sexual harassment is any unwelcome sexually
determined behaviour, such as:-
 Physical contact
 A demand or request for sexual favours
 Sexually coloured remarks
 Showing pornography
 Any other physical, verbal or non-verbal conduct of a sexual nature.
 Sexual Harassment takes place if a person:
 Subjects another person to an unwelcome act of physical intimacy, like grabbing,
brushing, touching, pinching etc.
 Makes an unwelcome demand or request (whether directly or by implication) for
sexual favours from another person, and further makes it a condition for
employment/payment of wages/increment/promotion etc.
 Makes an unwelcome remark with sexual connotations, like sexually explicit
compliments/cracking inappropriate jokes with sexual connotations/ making sexist
remarks etc.

1
Brewis, J., “Foucault, politics and organizations: (re)-constructing sexual harassment”, Gender, Work and
Organisation, Vol. 8 (1), 2001, pp. 37-60.
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 Shows a person any sexually explicit visual material, in the form of

pictures/cartoons/pin-ups/calendars/screen savers on computers/any offensive written
material/pornographic e-mails, etc.
 Engages in any other unwelcome conduct of a sexual nature, which could be verbal,
or even non-verbal, like staring to make the other person uncomfortable, making
offensive gestures, kissing sounds, etc.

The words ‘Unwelcome’ and ‘Unwanted’ are important and help distinguish sexual
harassment from other acts of similar nature in the work place.

Harassers need not only be employers or colleagues, but can also include clients and
customers. E.g., an incident where an employee receives harassing SMSes from another
colleague or client is considered workplace harassment, even though those SMSes may not
be sent at the physical workplace, or during working hours. Similarly, sexual harassment that
occurs on a person’s way to and from work, or during a client interaction or work-related
dinner or function is also considered workplace sexual harassment.

Quid pro quo and hostile work environment are the two broad types of sexual harassment.
'Quid pro quo', means seeking sexual favours or advances in exchange for work benefits and
it occurs when consent to sexually explicit behaviour or speech is made a condition for
employment or refusal to comply with a 'request' is met with retaliatory action such as
dismissal, demotion, difficult work conditions. 'Hostile working environment' is more
pervasive form of sexual harassment involving work conditions or behaviour that make the
work environment 'hostile' for the woman to be in. Certain sexist remarks, display of
pornography or sexist/obscene graffiti, physical contact/brushing against female employees
are some examples of hostile work environment, which are not made conditions for
employment.

CAUSES
The main reason of sexual offence in corporations is the severe imbalance of power in
between supervisors and subordinates. The positions and the power give the supervisor the
capacity to reward and coerce subordinates, also valuate their performance, make
recommendations for salary adjustments and promotions and even decide whether or not an
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employee retains his/ her job. On the other hand, subordinates want favourable performance
reviews, salary increases and the like.2

On the contrary, supervisors control resources that most subordinates consider important and
scarce. In some cases, top managers occupying high -status roles believe that sexually
harassed female subordinates are merely an extension of their right to make demands on
lower status individuals.” The difficulty with allegations of sexual harassment is proof. These
allegations often become one person’s word against another. As a result, it is believed that
most offences go unreported to company officials or government agencies So, sexual
harassment is the victim’s word against her boss. The harassed suffers from difficulty and
suppresses it in the cost of civil right. Most of the women do not want to litigate them. The
reason of suppressing harassment is the fear of economic insecurity and social isolation.
Because of the supervisor’s control over resources, the harassed are afraid of speaking out for
fear of retaliation by the supervisors.

The co-workers having no position and power can also influence the sexually harassed peers.
The co-workers also exercise some sort of power in order to sexually abuse female co-worker
in the organization. This power is developed by providing or withholding information,
cooperation and support. Work in organization is a team and hence performance of jobs
requires interaction and support from co-workers.

Women in positions of power can be subjected to sexual harassment from males who occupy
less powerful positions within the organization. This is usually achieved by the subordinates
by devaluing the women through highlighting traditional gender stereotype that reflect
negatively on the women in power.

In light of the reality highlighted above, some of the main causes for sexual harassment have
been covered in the points that follow. Many of the causes are interrelated, linked to the
culture and values in society and in companies, and to the roles, relative power and status of
the men and women concerned.

2
J. E. Gruber and P. Morgan (eds.), “In the Company of Men: Male Dominance and Sexual Harassment”,
Northeastern University Press, Boston, 2005.
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Socialisation3
The way in which men and women were brought up to see themselves and others strongly
influences their behaviour. Various viewpoints could create a climate that allows sexual
harassment:

In a culture where it is, or was until recently, "OK" to discriminate against people because
they are different (in terms of gender, race, culture, religion, lifestyle, political conviction or
whatever), the abuse of power or humiliation that is typical of sexual harassment will not be
unusual. Harassment is often closely linked to prejudice in general, and to sexist attitudes.

Men who were brought up with macho beliefs like which supported harassing women easily
carry these social values into the workplace, and treat their female colleagues accordingly.
Such men often even think that women take their harassment as a compliment.

Many women have been brought up to believe women's highest calling is to please men, that
popularity with men equals success. This can give the impression – usually unintended – and
in turn they invite sexual advances at work. Some women who see sexuality as their only
power base, play along. Although research has proven them to be a small minority, their
behaviour can also encourage harassment of other women.

If women see themselves as dependent on, or of lesser value than men, or are unassertive,
they find it difficult to handle harassers or to complain. Often women who are breadwinners
are vulnerable and fear victimisation or even job loss, if they reject advances or complain.

Power games4
Recent social and political changes have changed power relations. Some men feel threatened
by the career advancement of women and people of colour, or are uncomfortable with
women's new-found independence and assertiveness at home and / or at work. Others who
have recently gained positions of power may also harass women subordinates to prove
themselves. In times of uncertainty, fear, limited promotion opportunities, retrenchments,
personal stress and performance pressure, there is a real danger that sexual harassment and
trading of sexual favours will form part of the power games played.

3
Ibid
4
Ibid
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Moral values, divorce and cultural differences5

In times of moral laxity, it is relatively easy for people to indulge in very personal workplace
interactions, whether one-sided or mutual. The person who tries, and doesn't accept rejection
or sees the unwilling colleague as a challenge, easily becomes a harasser, or may victimise
the reluctant colleague. The prevalence of marital stress and divorce in our society means that
some men and women come to work in a state of emotional distress that could make them
vulnerable to sexual harassment.

Some confusion results from cultural differences about what is, or isn't, acceptable in our
rapidly-changing society. E.g. in the literature reviewed later in the report, we will observe a
case of an American woman who worked in the German division of a company (Lehman,
2006).

Credibility and victim-blaming6

The credibility of the victim is often called into question, as it is usually her word against that
of the harasser’s. Several factors aggravate this problem:

The large majority of men who treat women with respect and would never consider taking
such liberties; usually find it difficult to believe that respected colleagues would abuse their
position in this way.

Management may take the word of a senior person rather than that of a subordinate as they
are likely to have known the senior longer and that he would be their key employee and a
manager usually has more credibility in a dispute than a subordinate. The harasser may be a
high-level or highly-skilled person who is difficult to replace, while the victim is likely to be
on a lower level, and thus more expendable.

The common tendency of victim-blaming often causes the harassed to end up virtually as the
accused. As in the case of sexual assault and rape, the dress, lifestyle and private life of the
victim seem to become more important than the behaviour being investigated. Naturally it is
advisable that women dress and behave appropriately at work. Yet any woman – whatever
her appearance and lifestyle – has the right to decide whether, when, where, and from whom

5
Ibid
6
Brewis, J., “Foucault, politics and organizations: (re)-constructing sexual harassment”, Gender, Work and
Organisation, Vol. 8 (1), 2001, pp. 37-60.
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she wishes to accept any sexual approach or comment. And if she declines, she should not be
victimised in any way.

The victim may be very embarrassed by the events, or afraid of ridicule or revenge, and is
likely to wait until matters become unbearable before she complains. She may then be
blamed of having played along or condoned the behaviour initially.

Many women are also inclined to excessive guilt and self-blaming, and may even believe that
they unwittingly did or said something to invite the unwanted behaviour. And if they are
ashamed or afraid and don't discuss the problem, they often don't realise that it is a fairly
common occurrence, and not their fault.

Lack of company policy7

Many companies don’t have clear policies and complaint and disciplinary procedures to deal
with harassment – or if they have them, they do not implement them.

In one of the reviewed researches, more than 80% of the women respondents said they had
been harassed at work, while few of their companies had relevant policies. Women often
resign rather than complain, since they do not know where to go, or if they do complain, it is
either treated as a joke, or no action is taken by management.

If management condones such behaviour or if victims end up being blamed, the harasser is
encouraged to continue the pattern of harassment, affecting more and more women.

TYPES OF HARASSERS
While behaviour and motives vary between individuals, we can probably divide harassers
into six broad groups8:

Mr. Macho

This is usually linked to the bravado, when groups of men embarrass women with comments,
unwanted compliments or even physical evaluation, lewd jokes or gestures, and display of
sexually distasteful posters. All these can create a hostile environment, and even if it goes no

7
Supra 2
8
Natti Ronel, K. Jaishankar, Moshe Bensimon, “Trends and Issues in Victimology”, K. Jaishankar Publications,
2008.
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further than verbal and visual harassment, most women experience this as humiliating and
disturbing.

The Great Gallant

This mostly verbal harassment occurs when the “gallant” pays excessive compliments and
makes personal comments that are out of place or embarrass the recipient. While most men
and women appreciate recognition and genuine compliments, comments focused on the
appearance and the sex of a worker – rather than her competence or her contribution – are
usually unwelcome. While the giver of compliments may see himself in a different light, the
recipient usually experiences him as patronising or annoying, or both.

The Opportunist

This kind of harasser is usually fairly promiscuous in his attentions to female staff, suppliers
or clients. Whenever the opportunity presents itself – in the elevator, when working late, on a
business trip, at the office party, when alone in an office or a car with a female colleague- the
harasser likes to take advantage of the situation. If confronted, he will insist that the women
like and enjoy his attentions.

The Power-player

Here harassment is a power game, where the man insists on sexual favours in exchange for
benefits he can dispense because of his position: getting or keeping a job, promotion, orders,
bank overdrafts, a drivers' licence, and so on. This can be described as "quid pro quo"
harassment, and is closely allied to blackmail. Besides the effect on the victims, this form of
harassment is an abuse of power and trust. It can lead to bad business decisions, and can cost
the company dearly in terms of effectiveness, the cost of special favours, and company
image.

The Serial Harasser

The most difficult type of harasser to identify, and the most difficult to deal with, is the one
labelled as the serial harasser. This person is compulsive and often has serious psychological
problems. He carefully builds up an image so that people will find it hard to believe ill of
him, plans his approaches carefully, and strikes in private where it is his word against that of
a subordinate. He can do a lot of damage before he is found out. Although serial harassers are
in the minority, managers and personnel professionals should be aware of this possibility.
This person's aberrant behaviour is often a call for help, rather than deliberate harassment –
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as is usually the case in the above four types. In this case counselling is probably more
important than mere disciplinary action.

The Situational Harasser

The trigger to this person's behaviour is usually psychological, but more situational than
compulsive. Incidents are often linked to specific life situations or emotional or medical
problems, such as divorce, wife’s illness, impotence, hormonal imbalance, prostate disease,
or psychiatric or systemic disturbances that suppress the higher brain functions. If the
situation changes or the disease is brought under control, the harassment usually stops – but
by then both victim and harasser have been harmed.

TYPICAL VICTIMS

Women of all ages are harassed – physically attractive or plain, sexily or soberly dressed.
Women of high rank or status in the organisation are also harassed out of jealousy and
intimidation and sometimes out of the desire to attain the attention of a powerful woman.
Women who are particularly vulnerable include:
 Women who are the primary income providers of the household.
 Divorced women or widows are often psychologically vulnerable because of personal
loss.
 Women who are timid or insecure about their abilities, and lack self-confidence and
career-related education; who have limited potential for advancement and are easy to
replace.
 Women who are eager to be accepted and liked, and may find it difficult to be
assertive. Their friendliness and helpfulness is often misread as an invitation.
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THE SEXUAL HARASSMENT ACT: A CRITICAL ANALYSIS

BRIEF BACKGROUND

The entire purpose of this research paper stems backs to the landmark judgement by the Supreme
Court of India in Vishaka v. State of Rajasthan9. It was in fact in this case for the very first time,
that sexual harassment at the workplace was acknowledged to be a human rights violation, and
elaborate guidelines were put into place. Sexual harassment at workplace was becoming an
intolerable and uncontrollable menace10. Amidst various other developments, controversies and
delays, the Indian legislature finally enacted the Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act, 2013 (Act No. 14 of 2013)11, with an objective to
protect women against sexual harassment at workplace and to put in place a redressal mechanism
to handle complaints12.
The Act has effectively adopted and revised the guidelines laid down in the Vishaka judgement
with added provisions of rigour and compliance. It is important to note certain loopholes in the
provisions of the said legislation.
Various sections of society have raised their own concerns and objections towards the Act,
which may or may not be justified from a particular point of view. Accordingly, some of the
major concerns are as follows.
WOMEN RIGHTS’ ACTIVISTS
The Act is being highly criticized by women rights‟ activists. Unfortunately, it leaves it up to the
internal committee to decide a monetary fine to be paid by the perpetrator, depending on their
income and financial status. Accordingly, a lower level executive has to pay a lower fine for
harassment than a senior executive. This unjustified and unexplained discriminatory scheme

9
AIR 1997 SC 3011 (AIR is All India Reporter).
10
MOST WOMEN ARE ABUSED, HARASSED AND ASSAULTED AT WORK, SAYS SURVEY available at
http://articles.economictimes.indiatimes.com/2013-12-08/news/44910785_1_online-survey-abuse-
accusation (last visited November 15, 2017).
11
Hereinafter referred to as “the Act” or “the Sexual Harassment Act, 2013”.
12
KNOW YOUR RIGHTS: HOW LAW PROTECTS AGAINST SEXUAL HARASSMENT available at
http://www.hindustantimes.com/india-news/know-your-rights-how-law-protects-against-sexual-
harassment/article1-1154664.aspx (last visited November 10, 2017).
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leaves scope for inequality among different sections of society for an act equally heinous in
nature, be it committed by anyone.
The Act does not cover in its scope and ambit a very important community, that are agricultural
workers. The exclusion of armed forces too is an inexplicable gap. Women working in the armed
forces suffer highly from sexual harassment which calls for their inclusion within the purview of
the Act. What needs to be noted is that the Armed Forces sector is heavily male dominated and
that the chain of command is in the lair of the males. Enquiries are held behind closed doors
putting women in the Armed forces at a disadvantage to begin with. There is no need to exclude
such women from the purview of the Act as no strategic or other interests are affected by
protecting them against sexual harassment at the workplace.

DISCRIMINATION IN SCOPE AND AMBIT

In an era, where the force of the law thrives for creating equal opportunity and focuses on
eliminating discrimination of every kind possible, this particular Act is not at all gender neutral.
The Act provides protection against acts of sexual harassment only for women and not men.
On the other hand, interestingly, various recent studies and surveys over the last years or so have
shown that very often, workplaces also involve
women initiating and engaging in acts of sexual harassment. The research concluded that with
respect to this crime, cities in India are gender neutral and women are often on the dominating
end just like men. There were 527 people queried in the survey across seven cities in the country.
It was found that13:
Bangalore: The respondents said they had been harassed. Moreover, only 32% said that they
were harassed by male colleagues.
Hyderabad: 29% of the respondents said they have been sexually harassed by their female bosses
while 48% accused their male bosses.
Delhi: Numbers are even, with 43% pointing a finger at their female colleagues and an equal
number accusing their male colleagues of sexual harassment. 38% of the respondents agreed that
in today‟s workplaces, even men are as vulnerable to sexual harassment as women.

13
Even Men Aren’t Safe from Sexul Harassment at Workplace Survey available at
http://economictimes.indiatimes.com/features/specialreport/even-men-arent-safe-from-sexual-harassment-
at-workplace-survey/articleshow/6389438.cms?flstry=1 (last visited November 10, 2017).
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The numbers give us enough evidence to conclude that in practicality, circumstances are not
totally so as they were envisaged by the legislators. On the other hand, the Act provides no
mechanism to deal with the same.
Although, this Act is a great step forward in protection for women, it however leaves a wide
scope for false allegations. Individuals not involved in law making but who would rather be
governed by this law feel, that its effect must be viewed not just on the individual in question but
in totality including his family. This not only becomes a source of nuisance to the man so falsely
accused and his family, it also tarnishes their reputation14. This in turn becomes a great threat
that a household may face.

EMPLOYER’S AND EMPLOYEE’S PERSPECTIVE

Another question that has been raised on numerous occasions is with regard to the definition of
the word “employee”. The ambit of this definition is very wide. It can roughly be interpreted to
include almost any male worker. This is evident by use of words like, “any work”, “regular”, “ad
hoc”, “temporary”, “with contract”, “through agent”, “without agent”, “voluntary basis” etc.
Therefore, this raises a greater possibility of untrue allegations for malafide reasons and gives a
lot of scope for frivolous and unnecessary litigation.
The employer‟s perspective holds equal importance as well. It has been pointed out, that in light
of the increased number of complaints since the passing of this Act, the employers feel
discouraged from hiring women all together. More and more employers shall not prefer the
unnecessary risk of any such allegations and would in fact hire a male employee. This could
result a great step backward in providing equal opportunity to women 15, ultimately hurting them
in a perverse manner.
The employer is further burdened by the fact that the definition of workplace includes terms like,
“anyplace”, “transportation”, “arising out of”, “due course” etc. This adds to the burden of
responsibility on the employer to protect their female employees. It is also quite unreasonable in

ARE SEXUAL HARASSMENT LAWS ENOUGH? available at http://www.mid-day.com/articles/are-sexual-

14

harassment-laws-enough/15077056 (last visited November 12, 2017).

15
WORKPLACE ACT COULD END UP HURTING WOMEN available at
http://blogs.economictimes.indiatimes.com/SilkStalkings/entry/workplace-act-could-end-up-hurting-
women (Last visited November 13, 2017).
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essence. The employer cannot be humanly expected to prevent any sort of harassment at any
give place at any point of time. This is coupled with the fact that in majority of the cases, the
employer shall not be responsible and will not govern circumstances for the act to take place
even remotely and thus, places extraordinary burden on him.
The increased burden of employers has also raised questions, such as, whether employers have a
positive obligation to report even minor acts of sexual harassment to the police, as it is an
offence now punishable under the Indian Penal Code16. Additionally, should a situation arise
where a victim is unwilling to complain and an employer is aware of the situation. In such cases,
is there an obligation under this Act to report against the victim‟s wishes? The aforementioned
problematic provisions and unanswered questions present a conundrum for application of the
Act, and remain to be clarified.

FREEDOM AT WORKPLACE
The existence of free and unmonitored work environment along with co-existence of liberties to
be frank and humorous with each other at workplace is in fact the need of the hour. This when
exercised in limits, leads to improved understandings and work efficiency. Few examples can be
mild sexual humour, unhindered personal level interactions. All these help in building up
ambient relations and allow the opposite sexes to break the ice and come to terms and
understandings which they need to do, both as matured individuals and professionals.

With the reducing trend of gender exclusiveness at various workplaces, more and more men and
women are interacting with each other at workplaces. This trend has led to an indispensible need
to create a freer and friendly environment for both genders to freely interact and communicate.
Humour within limits, can sometimes be stress reliever. However with the strict provisions of
the new law, it appears as though this easy interaction will get curbed. With employees being
much more careful with their jokes, it will ultimately create a hostile environment at workplace.

But the Act takes away this free environment. Circumstances where casual relations are
encouraged between men and women will be curbed due to fear of it being misconceived.

16
The Indian Penal Code, 1872 (Act No. 45 of 1860), Section 354A.
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The research now focuses on a provision based analysis of the Act whereby most of the
provisions which have raised questions are:
CHARACTER OF LEGISLATION - ABSENCE OF GENDER NEUTRALITY
The first and most glaring flaw of this legislation is the complete absence of gender neutrality.
The Act is all about sexual harassment of women and does not cater to the opposite gender.
While efforts to protect women in the workplace are commendable, there appears to be no such
recourse to legislative action for sexually harassed men. According to the law in place, no
complaint may be filed by a male employee. There is a rising phenomenon of sexual harassment
of males, which, though considerably lower than females, cannot be ignored.

SECTION 2(n) - “SEXUAL HARASSMENT”

The provision narrows the scope of what may be construed as sexual harassment for application
of this Act. Acknowledgement of technological advancements could have also been noted, so as
to include all possible electronic means of sexual harassment. Interpretation concerns are
enhanced with the use of the phrase “unwelcome” in clause (v). Legislators have failed to note
that the definition of “unwelcome” will be construed in a vastly different manner from each
woman‟s perspective. The subjective perception of different women ought to have been included
in determination of whether the act is “unwelcome” or not. The definition of “sexual
harassment” has also neglected to grant protection against potential victimization of the
complainant by an employer. The timeline between making of complaint till a decision is made
can be effectively misused by the employer to exert undue pressure on the employee of any
nature whatsoever. Alternatively, the definition of “aggrieved woman” may have included the
same.

SECTION 2(O) - “WORKPLACE”

The definition includes “any place which arises within the course of employment”, thereby
including clients‟ offices, taxis, hotels, etc. Hence for the purpose of this Act, the areas over
which the employer has no access or control are deemed to be a workplace, and the liability of
occurrence of any untoward incident of sexual harassment is directly attributed to the employer.
This provision seems to be extending the scope of the Act more than required, i.e. the
„workplace‟ is being used to incorporate exceedingly unnecessary venues thus putting the
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20, 2017 SEXUAL HARASSMENT AT WORK PLACE

employer in a position where in his liability continues irrespective of his presence or control over
the situation.
This law is framed mainly keeping in mind workplaces like offices, organisation, other
institutions and enterprises, where complaints can be referred to committees. But the problem
arises as a majority of Indian women do not work in institutions or enterprises, or in developed
cities. They work in the informal sector such as fields, on the roads, or as self-employed
producers or vendors. Their workplaces are everywhere, and there is no mechanism to prevent
the everyday forms of sexual harassment that they may undergo17.

SECTION 3 – PREVENTION OF SEXUAL HARASSMENT

The provision deals with threats and detriments given by the employer to the employee and their
co-relation with acts of sexual harassment. The phrases, such as “implied or explicit threat about
her present or future employment status” and “interferes with her work or creating an
intimidating or offensive or hostile work environment for her18” will not be conducive for
speedy redressal of complaints, because in a professional work environment the employees
including female employees are bound to receive certain remarks or feedback with regard to
quality of work and the improvements required thereof which might not always be positive. Such
genuine and honest feedback, if not well received will become a reason of misusing this
provision, i.e. owing to the phraseology of this provision, women might file frivolous complaints
on the ground that such feedback was creating an unhealthy work environment.

SECTION 4 – CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

The criticism of the constitution of this committee has been dealt with in a three-pronged
manner. Primarily, it should be noted that in-house management of complaints may act as a
deterrent to victims. It is therefore suggested that the complainant need not forcibly file a
complaint with the Internal Complaints Committee. A more adequate forum would be an

17
BLURRED LINES available at http://indianexpress.com/article/opinion/columns/blurred-lines-2/ (last visited
November 18, 2017).
18
UNDERSTANDING THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION,
PROHIBITION AND REDRESSAL) ACT, 2013 available at www.livelaw.in/understanding-the-sexual-
harassment-of-women-at-workplace-prevention-prohibition-and-redressal-act-2013 (last visited November 17,
2017) .
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20, 2017 SEXUAL HARASSMENT AT WORK PLACE

independent employment tribunal to handle complaints in a more efficient manner, which would
simultaneously be preferable to a victim19.
Secondly, the composition of the committee members should have compulsorily been an odd
number to enable the committee to reach a majority-based decision. Thirdly, Section 3(c)
mandates the appointment of a member from a non-governmental organization (NGO) or
association “committed to the cause of women”. There is no threshold for this qualification and
it has been left open to interpretation. Further, including third-parties such as NGOs as members
of the committee will also raise concerns of confidentiality due to the sensitive nature of such
internal matters.
The Act ambitiously creates an obligation for the employer to establish a complaints committee
for each of its branches (which employs 10 or more people), even if the branches are in the same
city. This provision must be rectified.
Apprehension has been expressed with respect to the disposition of the committee as a whole.
The reason for it is the feminist biasness of the committee itself as it comprises of stakeholders
strongly prejudiced in favour of the female sex. The most conspicuous shortcoming, however, is
that the internal committee is composed of persons without any legal qualifications. This
absence of training specifications for the internal complaints committee will result in an ill-
equipped team and obstruct justice.
Another important point to be noted is that while under this Act the power to discharge the
functions including that of constitution of Local Complaints Committee are to be conferred on a
District Officer who can be the District Magistrate or Additional District Magistrate or the
Collector or Deputy Collector as notified by the appropriate Government 20. But, no where it is
clarified as to who is going to be „second in line‟ i.e. in absence of the District Officer who shall
be authorized to exercise the functions under this Act. In such a scenario, it is possible that LCC

19
Justice J. S. Verma, Justice Leila Seth, Gopal Subramanium, Report of the Committee on Amendments to
Criminal Law, January 23, 2013 available at,
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe% 20report.pdf
(last visited November 17, 2017).
20
The Sexual Harassment Act, Section 5.
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20, 2017 SEXUAL HARASSMENT AT WORK PLACE

would not be constituted in various districts, just because the presiding authority is unavailable
or absent21.

SECTION 10(1) – CONCILIATION

This provides for the Committee to make an attempt to resolve the complaint through
conciliation proceedings undertaken at the victim‟s request and proceed to make inquiry only if a
settlement is not reached. However, this provision misleads attempts to achieve justice, in
eroding the dignity of women by compromising on women‟s harassment. It is inconceivable and
illogical why a sexually harassed woman would like to reconcile with her offender.

SECTION 11(3) – INQUIRY INTO COMPLAINT; POWERS OF CIVIL COURT

This provision vests the Committees with powers of a civil court hence making it a quasi-judicial
entity. It is to be noted that the members to be appointed as a part of the Committee are not
required to have any legal background nor is it necessary for them to belong to the legal
fraternity. Hence, vesting the powers of a civil court in authorities having no legal knowledge
seems inappropriate. Also, this may be interpreted as an instance of colourable legislation, as
powers of courts cannot arbitrarily be conferred on domestic committees.

SECTION 12 – ACTION DURING THE PENDENCY OF A COMPLAINT

On request of the complainant and recommendation of the Internal/Local Committee, the
employer must grant paid leave (On completion of the said leave, she can be granted privilege
leave by the organization.22 or transfer of workplace to the complainant). It is to be noted that the
mere pendency of complaint is sufficient reason for the woman to avail the above reliefs. Once
the complaint has been made, this provision might be misused to leave the workplace even if it is
ensured that the workplace remains safe.

21
THE PROTECTION OF WOMEN AGAINST SEXUAL HARASSMENT AT WORK PLACE BILL, 2010 available at
http://www.prsindia.org/billtrack/the-protection-of-women-against-sexual-harassment-at-work-place-bill-
2010-1402/ (last visited November 17, 2017).
22
Section 12 provides for granting leave to the aggrieved female employee up till a period of three months in
addition to the regular leave which she is allowed to avail on the basis of the employment contract.
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SECTION 13(3) – INQUIRY REPORT; POWER TO DEDUCT SUMS FROM

SALARY/WAGES
The committee has been awarded vast discretionary powers. If the alleged sexual harassment is
proved, the committee is empowered to take action against sexual harassment in accordance with
the prescribed service rules, or to deduct adequate compensation from the salary of the
employee, or to recover the compensation from the accused employee as land revenue. Sexual
harassment is considered to be a violation of basic human rights. Hence, instead of taking drastic
action, such as dismissing the accused from employment or suspending him for a considerable
time period without any pay, penalizing such an act by compelling payment of compensation
seems to undermine15 the gravity of the offence and equates it to offences wherein the harm or
damage can be undone by monetary means. Also, in order to carry out the deductions from the
salary of the accused employee, corresponding changes need to be made in the Payment of
Wages Act, 193623 which provides for certain restrictions when it comes to deductions in the
salary of an employee.

SECTION 14 – PUNISHMENT FOR FALSE OR MALICIOUS COMPLAINTS

AND FALSE EVIDENCE
It states that if there is a false complaint duly backed by forged documents submitted by the
complainant or if it is proven that the complaint has been made with malicious intent, then strict
action will be taken in accordance with the service rules of the concerned establishment.
However, it categorically mentions that if the complaint cannot be substantiated, then it will not
attract any repercussions under this provision.24
This red-rag provision goes against the very purpose of this legislation by penalizing women for
false or malicious complaints. The criteria of falsity here is evidence of forged documents or
proof of malicious intent. It has not been able to consider that there may be a case wherein the
complaint is filed and later not sufficiently proved, would possibly be a frivolous complaint.
Further, specific penalty is not prescribed by the provision for such complaints; it
is merely stated that action has to be taken according to the service rules.

Act No. 4 of 1936.

23
16 24
LAW TO TACKLE SEXUAL HARASSMENT OF WOMEN AT THE WORKPLACE BROUGHT INTO FORCE
Available at,
http://almtlegal.com/articlespdf/ALMT%20Newsflash%20Sexual%20Harassment%20Act.pdf (last visited
November,17 2014
November
20, 2017 SEXUAL HARASSMENT AT WORK PLACE

SECTION 15(d) – DETERMINATION OF COMPENSATION, INCOME AND

FINANCIAL STATUS OF RESPONDENT

The committee also has the power to prescribe monetary penalties payable to the complainant
based on the income and financial status of the perpetrator. Aside from the discretion bestowed
upon the committee, this provision itself is irrational, as it implies that sexual harassment by a
lower executive, for example, would not warrant as high a penalty as a high-level manager.
While undermining the entire concept of sexual harassment itself, this provision could possibly
give more incentive to female employees to only report unwelcome acts of senior-level
employees.

SECTION 16 – PROHIBITION OF PUBLICATION OR MAKING KNOWN

CONTENTS OF COMPLAINT AND INQUIRY PROCEEDINGS
While it is laudable that this provision endeavours to contain such delicate matters within the
purview of the organizations in which they occur, the same information should also be made
available on demand to an interested party. Express exclusion from the Right to Information
(RTI) Act, 200525, will impede the interest of the public at large. This doesn‟t seem to be just
and fair as such an exclusion from the purview of RTI would mean that information on false/
fabricated cases would not be available to a person with vested interest.

SECTION 26 – PENALTIES FOR NON-COMPLIANCE

Chapter VI lays down the duties of employers. Section 26 prescribes penalties for non-
compliance with the provisions of the Act, which includes a monetary fine upto Rs. 50,000, and
on repetition of the same offence, could result in punishment being doubled and/or cancellation
of registration of the entity or revocation of any statutory business licenses. Herein, a fine should
be prescribed, as revocation of license will inflict injury on unrelated and innocent parties
associated with the business of the employer as well.

25
Act No. 22 of 2005.
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20, 2017 SEXUAL HARASSMENT AT WORK PLACE

CONCLUSION
It is certain that many victims will shy away from the publicity, the procedures, the delay and the
harshness in the criminal justice system, this alternative structure and process is welcome, but
needs much alteration. Helping the victims to make informed choices about the different
resolution avenues, providing trained conciliators, settlement options by way of monetary
compensation, an inquisitorial approach by the Committee, naming the victim by use of words
like complainant etc. and not using her actual name and in-camera trials are some areas of
improvement. Apart from this, we need something else which the legislation cannot provide- the
mindset to understand the fears, compulsions, and pressures on women victims. The legal
concept and test of a “reasonable man” should give right of gender to that of a “reasonable
woman” as well.26

The critical analysis made in this research paper presents the quandaries posed by the Sexual
Harassment Act, such as various sections of the community will be grossly affected by the over-
imposing nature of the Act, primarily the vast increase in the burden of employers, as outlined.
The legislation appears to be further excessive in the redressal mechanisms which it has
established by leaving short-comings in the powers and functions of these non-judicially
equipped bodies. Moreover, some provisions could have been more leaning to the female victim,
such as the provisions for conciliation and punishment for false or malicious complaints.

The loopholes in the particular provisions have been already identified in this research paper
alongwith suggestions as to what could have been done more properly. The overall impression
provided by the Act is that it is not well drafted, with sufficient reasonable foresight of the harsh
effects of its implementation. These problematic provisions and unanswered questions present a
conundrum for application of the Act, and remains to be clarified.

PROTECTING WOMEN AT WORK PLACES available at http://www.thehindu.com/opinion/op-ed/protting-

26

women-at-workplaces/article5483861.ece (last visited November 20, 2017).

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BIBLIOGRAPHY
Books:

i. Angelo S. Denisi, Ricky W. Griffin, “Human Resource Managment” , 2nd

Edition, biztantra Dreamtech Publishers
ii. Mary L. Boland, “Sexual Harassment in the Workplace”, 1st Edition,
Sphinx Publishing
iii. Paramita Chaudhuri ,“Sexual harassment in the workplace: experiences
of women in the health sector”, 1st Edition, Population Council 2006
iv. Michele Antoinette Paludi, “Academic and workplace sexual harassment:
a handbook of cultural, social science, management and legal
perspectives”, 1st Edition, Greenwood Publishing Group

v. Natti Ronel, K. Jaishankar, Moshe Bensimon, “Trends and Issues in

Victimology”, K. Jaishankar Publications,

vi. Carrie N. Baker , “The women’s Movement against Sexual Harassment”,

p. 1, Cambridge University Press, 2008

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20, 2017 SEXUAL HARASSMENT AT WORK PLACE

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