Opinion

What amounts to sexual harassment at the workplace?

Ashwini Vittalachar & Junaira Rahman
23rd Jan 2018
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Enabling a safe, secure and inclusive work environment for women is a collective responsibility not just of the employer, but every employee in the organisation.

The workplace culture in India is evolving in many ways. Boundaries of professional conduct often get muddled.

In order to prevent workplace sexual harassment from becoming the norm, it is important to understand what amount to sexual harassment as well as redressals available under law to prevent/deal with issues of workplace sexual harassment.

This article will help you decode what amounts to sexual harassment at workplace.

The Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 along with the rules therein (“POSH Laws”) identify a broad set of definitions in this regard.

Any form of physical advance/contact, as well as demanding sexual favours definitely fall within the definition of sexual harassment. But the POSH Laws are a lot broader in defining sexual harassment.

In fact, “unwelcome physical, verbal or non-verbal conduct of sexual nature”, making “sexually coloured remarks” are also treated as sexual harassment.

What makes the definition most interesting is that this could be either direct or implied, thereby opening up a whole Pandora’s box on whether a certain act or statement was “sexual harassment” or not! This broad definition can be best understood, by identifying the chain of actions, and with a few real-life examples.

Give and take relationship (quid pro quo in legal lingo)

Quid pro quo, essentially refers to giving something in return for something else. Seeking sexual favours in return for promises of better work conditions, better employment benefits, preferential/detrimental treatment, or with an underwritten threat of negative consequence on present or future employment status, amounts to quid pro quo sexual harassment.

By definition this is commonly be seen in positions of hierarchy/superior-subordinate relations at work.

Rohit and Priya are part of a business development team at an organisation. Priya reports to Rohit. Rohit constantly tells Priya that they should go out somewhere after work hours, perhaps for a late night movie or dinner. Priya is uncomfortable but smiles and says she is busy most often!  One day, Rohit tells Priya that if she turns down his request again, her ratings will go down at the monthly review.

We work together and gossip about each other (hostile work environment in legal lingo)

Unlike quid pro quo which is apparent, this is a lot more amorphous to define, and many a time goes un-redressed entirely as people fail to identify them as “sexual harassment”.

The impact of this form of workplace sexual harassment is a lot more severe.

 

Suman along with a team of five other men and women report to Anil, who is also the managing director’s son. Suman is very good with her work, and is assigned a coveted project, instead of her colleague Rahul who has more experience. Rahul is not only upset, but believes that Suman must be in a relationship with Anil due to which she was assigned on the coveted project.  Rahul jokes about this with other colleagues.  Suman’s colleagues also gossip about her and Anil’s potential personal relationship given Suman’s fast-paced growth at work, often in groups, sometimes directly too!This is a form of sexual harassment leading to a hostile work environment.

It is important to remember though - that an element of sexual undertone must be present in order for it to be construed as sexual harassment. It is equally possible for one to be in a hostile work environment (purely on account of negative work culture), without there being any form of sexually implicit unwelcome conduct being present.

In the above example, if the gossip, groupism, were not in the context of an assumed sexual conduct between Suman and Rahul, but on issues of race, ethnicity, origins, etc., it can still be a hostile work environment (although not amounting to sexual harassment).

 

Other instances of Workplace Sexual Harassment:Sexually suggestive comments about a person's clothing, body, and/or sexual activities.Derogatory comments or slurs, verbal abuse or threats, sexual jokes.Intimidation, threats, blackmail to elicit sexual favours.Unwelcome social invitations, with sexual overtones/flirting.Gratuitous display of sexually explicit written or audio-visual materials like pornographic posters, cartoons, drawings, books or magazines, MS, sms, whatsapp, screen savers or e-mails.Continuous idle chatter of a sexual nature and graphic sexual descriptions; telephone calls of a sexual nature.Physical contact - touching/pinching/caressing/kissing someone against her will.Invasion of personal space (getting too close for no reason/cornering someone), or stalking.Abuse of authority or power to threaten a person’s job or undermine her performance against sexual favours.Controlling a person’s reputation by gossiping about her private life.Suggestive or insulting sounds such as whistling, wolf-calls, or kissing sounds.Lewd gestures such as hand or sign language to indicate sexual activity.Sexual looks such as leering and ogling with suggestive overtones.Assault, coerced physical contact, attempted rape or rape, display of body parts.

Whether an act amounts to sexual harassment or not, is subjective in nature, and needs to be analysed on a case to case basis, depending on the circumstances of the matter. Also, what appears to be a sexually tainted/intimidating for a particular person, may simply be a harmless or an inadvertent action by the alleged perpetrator.

The key element while drawing the thin line between general workplace harassment and workplace sexual harassment is to establish that the act was and unwelcome sexually determined behavior (whether verbal/physical), keeping in mind the impact and not the intent! Also, all forms of physical contact cannot be termed as sexual harassment. Mere accidental physical contact, even though unwelcome, will not amount to sexual harassment.

 

Instances which are not workplace sexual harassment:Following-up on work absences.Requiring performance to job standards. Reprimands in relation to work/meeting targets or deadlines.Work-related stress e.g. meeting deadlines or quality standards.Touching/brushing against/pushing without a sexual connotation.Constructive feedback about work.

You must also remember that workplace sexual harassment is not limited to the four corners of the office/cubicle a woman is working in. Any ‘unwelcome sexually tainted act/behaviour’ meted out to a woman at any place visited by her on account of, or during the course of her employment is equally covered.

So common examples such as office cab, cafeteria, sports room, conferences etc., would also be equally covered.

Every person, immaterial of age, religion, gender, seniority or designation, plays an important role in ensuring workplace safety.

In a fast-paced life, work plays an important role not just in giving us economic freedom/stability but also in creating our identity. The need to be in a positive work environment cannot be undermined both from an employer as well as employee’s perspective.

Enabling a safe, secure and inclusive work environment for women is a collective responsibility not just of the employer, but every employee in the organisation.

This responsibility can be best discharged by proactively taking steps to prevent workplace harassment, through unbiased assistance during an enquiry of a complaint (of sexual harassment), and generally by being responsible and professional to colleagues at all points of time.

The article forms part of the Samvad Knowledge Series, a bi-monthly write-up on various legal topics by Samvad Partners.

(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of YourStory.)

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Authors
Ashwini Vittalachar
Ashwini has more than a decade’s experience in advising on private equity and venture capital transactions; as well as acquisitions and joint ventures.  She is a partner at Samvād Partners and has been instrumental in the establishment of the New Delhi office of the Firm.   Recently, she has advised on several transactions in the e-commerce sector, clients being both VC funds as well as target companies/promoters.  Her expertise extends not just to deal negotiations, but also to general corporate/commercial, employment and advisory matters. Ashwini Vittalachar has played a key supporting role in many of the firm's recent M&A deals.  This has included acting on cross-border M&A deals in the life sciences and automotive sectors.   ‘Ashwini is singled out by clients for her "communication skills, quick understanding of key business issues, and negotiating ability." You can connect with Ashwini on LinkedIn.

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