Gia recently joined Delta Enterprises, as the only woman in the tech team. Her co-worker, Charles constantly made remarks about how “women just aren’t as good at tech” and “it’ll be just a few months of dealing with her before she gets married and quits”.
Gia is uncomfortable with the constant sexist comments and conversations about her personal life.
Can this be classified as sexual harassment?
What is sexual harassment?
The Sexual Harassment of Women in the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”) defines sexual harassment as any unwelcome, sexually-tinted behaviour, whether directly or by implication, such as:
- Physical contact and advances,
- Demand or request for sexual favours,
- Making sexually coloured remarks,
- Showing pornography, or
- Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
The definition of sexual harassment is broad and covers various inappropriate behaviours and places reliance on how the person who faced the behaviour felt.
Does sexual harassment have to be “sexual”?
The long-standing understanding of sexual harassment is that it is a manifestation of “sexual desire”. This meant that people sexually harassed others because they had some form of sexual desire or attraction towards them. However, the PoSH Act 2013’s definition of sexual harassment and the court’s interpretation have pushed the boundaries of what is sexual harassment in the workplace.
The focus of the definition itself is not to limit itself to only explicit sexual behaviour but also behaviour with sexual undertones- which are commonly perpetrated through comments, innuendos and jokes. Affirming this, the Kerala High Court clarified that any form of sexual approach or behaviour that is unwelcome and has a sexual undertone will come under the definition of sexual harassment under the PoSH Act.
The view of sexual harassment has also taken into consideration the impact that sexual harassment can have on the workplace and the complainant’s experience in the workplace. The Bombay High Court emphasised that sexual harassment includes behaviour that creates an intimidating or hostile environment for the complainant and leads to humiliating treatment likely to affect their health and safety, placing focus on how sexual harassment can impact the experience of the complainant at work.
Sexual harassment laws in India evolved from the idea that it violated the very right to life and to live with dignity. Keeping this view in mind, the supreme court in a judgement under the Vishaka Guidelines stated that sexual harassment at the workplace is not confined to cases of actual commission of acts of harassment but also situations where employee faces prejudice, hostility, discriminatory attitudes and humiliation in their day-to-day functioning in the workplace.
What is the implication of this interpretation?
Through the definitions and judgements, we can see that the interpretation of sexual harassment does not only cover behaviour that is explicitly sexual or hinges on the idea of expression of a form of sexual desire. Sexual harassment in the workplace is rather, a very diverse experience that is humiliating and creates a hostile work environment, that can be exacerbated by power dynamics.
Going back to Charles and Gia, Charles’ comments about how “it’ll be just a few months of dealing with her before she gets married and quits” and “women aren’t as good at tech” can make Gia feel very uncomfortable and unsafe in the workplace. These comments reinforce notions and stereotypes about women in the workplace but the first comment also talks about Gia’s personal life, which is not appropriate for the workplace. The conversation veers into talking about Gia’s personal life, and her marriage, which are not appropriate conversations for the workplace.
Women often face questions and comments about their marriage, children and personal life, a behaviour that is largely normalised in society but it does have a very real impact on people in the workplace. These comments create a hostile work environment for complainants in the workplace, where they feel unwelcome and humiliated, which various Courts have established as a form of sexual harassment.
Broadening the idea of sexual harassment beyond sexual desire and only explicitly sexual behaviour allows for the law to cover various forms of sexual harassment that create an uncomfortable, unsafe and hostile work environment and work towards creating a healthy work culture more holistically.