A CASE FOR GENDER NEUTRAL LAW ON SEXUAL HARASSMENT AT WORKPLACE


The advent of #MeToo movement, has raised the visibility of sexual harassment at work, across the globe and the personal toll it takes on an employees’ life, to unprecedented levels. Employees who are victims of this crime, experience a range of negative consequences which include physical and mental health problems, career interruptions, lower earnings and even denial of employability. Protection against sexual harassment and the right to work with dignity are universally acknowledged human rights.[i] Fortunately, in India, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter “POSH Act”) protects employees from this menace.

However the same cannot be said for male employees. They are not protected against any form of sexual harassment at workplace. In the present blog, I’ll be presenting an argument for making POSH Act a gender-neutral law, in order to provide working men equal protection and rights from the perils of any form of sexual harassment.


UNDERSTANDING THE PROBLEM

In a predominantly patriarchal society of India, males are seen as a stronger sex and hence the idea of them as victims has largely been snubbed[ii]. POSH Act protects women, exclusively, from sexual harassment as is evident from its title. Men, as aggrieved party, are not covered within the scope of this law. The underlying rationale[iii] is to ensure that a woman enjoys the fundamental rights enshrined in the Constitution of India including the right to equality, right to life, right to live with dignity and practice profession.

The background of the law inter alia was to promote an enabling working environment for women. The POSH Act draws its roots from “Vishakha Guidelines” introduced by the Supreme Court[iv],which mandated formulation of sympathetic and non-retributive mechanisms to enforce the right to gender equality of working women. In retrospect, keeping in mind systematic discrimination and crimes against working women, laws with an enhanced focus on protection of women from sexual harassment at workplace was much required and even now is more required than ever. What is pitiable however, as time evolved, the law has failed to keep up with the changing needs of the society.

Male sexual harassment is a reality which has always been taken lightly in our society. Complaints from male employees about their female counterparts is often ignored and put under the carpet as misogynist and false claim. Movies like Aitraaz[v], Horrible Bosses[vi] etc. have shown male sexual harassment as a joke or even in some cases as a “favourable opportunity” for the victim!

On the contrary facts reveal a different picture altogether. Recently, Centre for Civil Society found that approximately 18% of Indian adult men surveyed, reported being coerced or forced to have sexual intercourse at workplaces. Of those, 16% claimed a female perpetrator and 2% claimed a male perpetrator[vii]. In USA, out of the 6,822 sexual harassment claims were filed with the EEOC[viii] in 2015, 17.1% of those cases were filed by male employees[ix]. These figures indicate only one aspect of sexual harassment, i.e. demanding sexual favours, at workplace. Other forms of sexual harassment under the POSH Act including showing pornography, making sexually coloured remarks and other unwelcome physical or verbal comments and actions[x], against male employees can however never be tabulated. This is because authenticity of these claims can never be proven as the law itself does not recognise this crime in the first place!

In absence of any legal forum, the only recourse for male employees, in these cases is their workplaces' sexual harassment policy, which may or may not be inclusive and favourable to these cases. Thus, the problem of male sexual harassment at workplaces is vir