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Sexual Harassment at Workplace

Sexual Harassment at Workplace
Sexual Harassment at Workplace


Sexual Harassment

In Section 2(n) of the Domestic Violence Act, "sexual harassment" is defined as any form of unwelcome physical contact or advances, sexually coloured remarks, requests for sexual favours, showing pornography, or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. This definition serves as a crucial element in Section 3 of the Act, which expressly prohibits sexual harassment.

Additionally, Section 2(o) of the Act outlines the scope of the term "workplace," which encompasses all government and private workplaces. This broad definition ensures that protections against sexual harassment extend to various employment settings.

Section 3 of the Act elaborates on the prohibition of sexual harassment. Subsection (2) of this section enumerates circumstances that may constitute sexual harassment if they are found to be related to or connected with any act or behaviour of sexual harassment. 

These circumstances include instances of implied or express promises of preferential treatment, threats of detrimental treatment, threats concerning employment status, interference with work, creation of an intimidating, offensive, or hostile work environment, and humiliating treatment likely to affect health or safety.

By clearly defining sexual harassment and delineating the circumstances that may constitute it within the workplace, the Act aims to provide comprehensive protection to individuals against all forms of sexual harassment in both governmental and private employment settings.


What amounts to Sexual Harassment?

The Prevention of Sexual Harassment (POSH) Act aligns its definition of 'sexual harassment' with the Supreme Court's interpretation outlined in the Vishaka Judgment. According to Section 2(n) of the POSH Act, 'sexual harassment' encompasses unwelcome sexually tinted behavior, whether conveyed directly or indirectly. This includes:

1. Physical contact and advances.

2. Demand or request for sexual favors.

3. Making sexually coloured remarks.

4. Showing pornography.

5. Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

Furthermore, the Act under Section 3(2) specifies that certain circumstances, among others, when occurring or present in relation to or connected with any act or behavior of sexual harassment, may amount to sexual harassment. These circumstances include:

- Implied or explicit promise of preferential treatment in employment.

- Implied or explicit threat of detrimental treatment in employment.

- Implied or explicit threat about present or future employment status.

- Interference with work or creation of an intimidating, offensive, or hostile work environment.

- Humiliating treatment likely to affect the lady employee’s health or safety.

By incorporating these definitions and circumstances, the POSH Act aims to provide a comprehensive framework for addressing and preventing sexual harassment in the workplace, ensuring the safety and dignity of all employees, especially women.

As evident from the description above, the definition of 'sexual harassment' within the ambit of the POSH Act is broad enough to encompass both direct and implied sexual conduct, which may manifest through physical, verbal, or written means. 

The pivotal criterion is that such conduct is unwanted and unwelcome by the recipient. 

This definition encompasses quid pro quo sexual harassment, a form of sexual coercion, whereby the individual in a position of power pressures a subordinate, typically a woman employee, for sexual favours in exchange for career advancement or threatens adverse employment consequences.

Moreover, the definition encompasses the creation of an 'intimidating, offensive, or hostile working environment.' For instance, this could include a scenario where an individual is subjected to unwelcome comments about their body type, leading to feelings of embarrassment and hindering their ability to work effectively.

While certain forms of sexual harassment, like sexual assault, are inherently egregious and offensive, requiring only a single occurrence to qualify as 'sexual harassment,' distinguishing other forms may be less straightforward. The determination of what constitutes a 'hostile working environment' often rests with the internal committee, which must assess whether the harassment experienced by the victim is severe enough to create such an environment.


Section 2(o) “workplace” includes—

(i) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a co-operative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service;

(iii) hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey;

(vi) a dwelling place or a house;

While the Vishaka Guidelines were initially tailored to address sexual harassment within the confines of traditional office settings, the Prevention of Sexual Harassment (POSH) Act has introduced the concept of an 'extended workplace.' 

According to the Act, the term 'workplace' encompasses not only the primary place of employment but also any location visited by an employee during the course of their work, including transportation provided by the employer for commuting.

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the respondent argued that an alleged incident of sexual harassment occurring at an official mess, where the complainant resided, did not constitute harassment in the workplace. The respondent further contended that since the complainant held a higher position, no 'favour' could be sought from her, thus negating the charge of sexual harassment. However, the Delhi Court dismissed these arguments as 'clearly misconceived.'

The court emphasized that the objective of the Vishaka Guidelines was to prevent sexual harassment in the workplace and ensure strict action against offenders. Therefore, it cautioned against interpreting the term 'workplace' narrowly, solely within the confines of a traditional office space.

The court acknowledged the evolving nature of work dynamics, particularly with the proliferation of technology, where work-related interactions can occur remotely across geographical boundaries.

The High Court outlined several factors to determine whether an act occurred within the workplace, including proximity to the primary workplace, management control over the location, and whether the location is an extension of the workplace. Applying these criteria, the court concluded that the official mess where the alleged incident took place unequivocally fell within the definition of the workplace.


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