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 virtually unregulated. It leads to a vicious cycle where due to lack of legal resources, more and more voices against this crime get muffled, which in turn further fuels the patriarchal mindset that men can never be victims of sexual offences.
Article 14 of the Constitution of India gives a fundamental right to “equality before the law” to all persons[xi]. However, most of the sexual offences laws in India have an inherent bias against men- as perpetrators. A bare reading of Indian Penal Code on adultery[xii], rape[xiii] etc. will show that in India, a man will always be a perpetrator and a woman will always be the victim. This discrimination, based on sex, violates Article 15 while the prejudiced language of the abovementioned laws, puts male and female at unequal pedestal before the law, violating Article 14.
GENDER NEUTRAL LAWS- AN INDIAN EXPERIENCE
Recently, a bill has been introduced in the Lok Sabha which seeks to make all sexual offences gender neutral. The bill proposes amendments in Criminal Laws[xIv] to ensure that the words "any man" and "any woman" in the sections relating to sexual offences in the laws are changed to read as "any person". By changing the definition of the perpetrator and victim of sexual assault from "man” and "woman" to "any person", the bill transcends from the traditional and outdated role of men and women as assaulter and victim.
Furthermore, UGC regulations[xv] recognizes all genders under the ambit of “aggrieved party”. The regulations do not use the term “aggrieved woman” and only refer to either "aggrieved person" or an "aggrieved party". Additionally, there is recognition of the respondent/accused person being either a male or a female.
The regulations mandate a primary responsibility on all Educational Institutions to "act decisively against all gender-based violence perpetrated against employees and students of all sexes. Although women employees and students have been recognized a primary target, at the same time rights of male students and students of the third gender are also recognised. The Regulations mention that all students, irrespective of their gender are equally vulnerable to many forms of sexual harassment and humiliation and exploitation.
The International Labour Organisation is a United Nations agency for promotion of social justice and ensure safe work environment by setting labour law standards. ILO has recently formalised “Convention on Elimination of Violence and Harassment at Workplace, 2019” at the 108th International Labour Conference on 21st June 2019[xvi]. It defines gender-based violence and harassment at workplace”, as affecting all working individuals irrespective of their sex[xvii]. It mandates that all UN member states need to formulate their labour laws based on the abovementioned mandate[xviii]. India has not ratified this convention currently but it is hoped that the same is done at the earliest and equal protection is granted to entire workforce irrespective of their sex.
Furthermore, more than 50 other countries have legislations to prevent sexual harassment at workplace out of which 46 countries use gender neutral terminology for both victims and perpetrators.
It is sufficiently clear that the POSH Act envisages men as perpetrators and women as victims, exclusively. It remains oblivious to various other forms of sexual harassment[xix]. In order to rectify the same, it is recommended that:
The ambit of POSH Act has to be significantly increased. One of the most primary actions to be taken in this regard is changing its name to “The Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act”.
Gender neutral terms like person and individual should be replaced in several definitions like “aggrieved women”, “Domestic Worker” etc. These terms as discussed earlier are of wide ambit and take into account working professionals from all the three genders.
Employers must be mandated to raise awareness about other forms of sexual harassment apart from its traditional understanding. Sexual Harassment must be portrayed as an employment discrimination.
Gender equality demands that men and women must be treated equally. Labour laws, which are in a way, Social Benefit Legislations cannot go ahead with an inherent gender bias, confining role of men and women as perpetrators and victims only. At the same time, plight of discrimination against the third gender cannot be ignored as a form of sexual harassment. The POSH Act, status quo, unfortunately suffers from all the above-mentioned infirmities. Sexual harassment at workplaces cannot be tolerated and in pursuance of this aim, sexual harassment against men cannot be ignored. A gender-neutral POSH Act will not in anyway harm the rights of women as victims, it will on the contrary further help in curbing sexual harassment itself.
[i] Universal Declarations of Human Rights, Article 23, U.N. Doc. A/810 (December12, 1948).
[ii] Sanjjiiv Kkumaar v. Union of India, Delhi High Court, W.P. (C) No. 8745 of 2017 (Rejected)
[iii] Preamble of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
[iv] Vishakha & Ors. v. State of Rajasthan, (1997) 6 SCC 241, ¶17.
[v] Aitraaz (Mukta Arts, 2004)
[vi] Horrible Bosses (New Line Cinemas, 2005)
[vii] John Stokes, India’s Laws should recognise that men can be raped too, SCROLL , September 11, 2014
[viii] U.S. Equal Employment Opportunity Commission, Federal Agency in United States of America
[ix]Yes, Men can be sexually harassed in the workplace!, PLBSH.COM
[x] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, § 2(n).
[xi] The Constitution of India, 1950, Art. 14.
[xii] Indian Penal Code, 1860, §497.
[xiii] Indian Penal Code, 1860, §375.
[xiv] (Indian Penal Code (IPC), Criminal Procedure Code and the Indian Evidence Act)
[xv] University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015, Reg. 3
[xvi] Violence and Harassment Convention, 2019, 21st June 2019,108th International Labour Organisation Conference.
[xvii] Article 2, Violence and Harassment Convention, 2019.
[xviii] Article 9, Violence and Harassment Convention, 2019.
[xix] (For e.g. transgender taboo, same-sex sexual harassment and most important male sexual harassment)
National Law University, Jodhpur
(Images used for representative purpose only)