Happy Workplaces without Harassment for All!!
Linda Louis 25 Jul 2017

Happy Workplaces without Harassment for All!!

It's been a few years now since the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013was passed but unsurprisingly, with the exception of legal circles and among the blogs and rants of elite upper-middle class professional women on facebook and twitter, it does not really seem to have gotten around. Tragic, since the Act specifically sought to protect domestic workers, and workers in the unorganised sector as well from unwanted advances and sexual harassment.

Where it is known, especially among the large and well-staffed companies with bright HR personnel, the term 'sexual harassment' is bound to make a Manager or Director sigh in impatience. This annoying little law, as they have come to see it, pushed by crazy women because they wanted special favours is now something additional that HR has to deal with, and money has to be set aside for. All in all, it's not the most popular law.

So what does the sexual harassment law require exactly? 

Not much. For the unfamiliar - all you need to look to is S. 2 (n) , S. 3, S. 4, and S. 6

S. 2(n), if you look closely, has a bit of a surprise. S. 2 is the definition section - as such, it really shouldn't be very controversial. S.2 (n) defines sexual harassment and is said to INCLUDE - a certain number of acts, or behaviour that is 'unwelcome' and that may be direct or indirect... 

From a lawyer's viewpoint, that's a fantastically difficult sentence to interpret - The section only says 'include' so there are obviously acts envisioned that have not been specified. It goes on to say 'unwelcome' but is utterly unhelpful in defining unwelcome - in a country with massively widespread sexual repression, this is like a red flag for litigation. 

Direct or indirect- It's hard to think of a phrase more vague than this one when the provision is seeking to limit behaviour. 

But that's not all. This is obviously not the entire definition, and we have a few more surprises coming our way.

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature; 

Really - how is one supposed to limit this? Let's take the first one - Physical contact / advances - does that include when someone knocks your coffee in the line at the cafetaria? Or bumps into you on the stairs? 

Secondly - the demanding of sexual favours - I'm completely in support of not putting employees in a position of giving sexual favours, but doesn't that require some kind of clarity on what 'sexual favours' are? Is it unwelcome sexual contact? Is it a sex act predicated on reward? S. 3 later talks of circumstances, but since S. 2(n) also stands alone, that doesn't help us much.

Thirdly, the making of sexually coloured remarks - I understand why it is there, I've been at the receiving end of it. But as a lawyer, I am not blind to the difficulty of defining or limiting these remarks. What is defined as a sexually coloured remark? More importantly, when is it unwelcome? Is it unwelcome in a group? In private?

Fourthly, showing of pornography - By far. this seems to be the one easiest to understand, but I suspect most working youth have no idea this law exists, and that it can get messy if its unwelcome. 

Fifthly, any other verbal / non physical conduct of a sexual nature - Given that the Act is specifically focused sexual harassment in the workplace, this is welcome, but again, very very poorly defined. 

The concept of sexual harassment is not easy to define. Drafting of laws to protect from sexual harassment, violence or abuse can be incredibly difficult and this is a decent attempt. But the definition section in this Act is rife with problems - which have to be sorted out as soon as possible. 

Will be analysing the other operative sections of the Act in following posts. Stay tuned! 

P.S - There is a credible effort by a filmmaker to highlight the issue of sexual harassment - both for the perpetrators, victims, and the unfortunate innocents who sometimes get caught in between. The film is being crowdfunded - If you'd like to check it out, here is the link-

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