About The Author
Salma Fassaludeen, a sixth-semester B.A. LL.B. student at Government Law College Thiruvananthapuram is the author of this article.
Introduction
Sexual harassment is any unwanted sexual behaviour that makes someone feel upset, scared, offended, or humiliated, encompassing verbal, non-verbal and physical actions of a sexual nature. India’s POSH Act (Sexual Harassment of Women at Workplace (Prevention, Protection and Redressal) Act, 2013) aims to prevent and address sexual harassment in the workplace, while other countries like the UK, USA and Australia have similar laws, but with varying approaches in enforcement, penalties and scope. This article is a comparative analysis based on sexual harassment- its salient provisions, enforcement mechanisms and legal structures in India and other countries which would help us understand the global differences of the act and to derive some global practices that would strengthen India’s workplace anti-harassment policies.
Sexual Harassment Laws In India
In India, sexual harassment laws primarily consist of the POSH Act (Sexual Harassment of Women at Workplace (Protection, Prevention, Redressal) Act, 2013) and relevant sections of the Indian Penal Code (BNS).
Prior to 2013 sexual harassment was included under the broader provisions of sexual offences mentioned in the Indian Penal Code, which meant that there was no special provisions or specific laws related to sexual harassment in workplace in India. The Supreme Court in 1997 in VISHAKA v. STATE OF RAJASTHAN visioned deep rooted gender imbalance, discriminations against women including sexual harassment at workplace, to remedy these situations the Court also formulated Vishaka guidelines and it was emphasised that these guidelines would be treated as the guiding principles until some suitable provisions or legislations was enacted to address this issue. It took a further 16 years for the POSH Act to come into effect on 2013. This Act imposes obligations on employers to provide a safe and secure working environment for women that are free from sexual assaults, discriminations and harassments and also gives an expansive definitions of ‘aggrieved women’ and ‘workplace’ in the sections 2(a) and 2(o) of the Act. The POSH Act also details the requirements for the composition of a specialised Internal Complaints Committee (ICC) under section 4 to investigate, hear and address the grievances of victims of sexual harassment at workplace and the ICC have the power to initiate the enquiries against the accused and to recommend appropriate punishments and penalties to the employer. Apart from this the Act also contains provisions for constituting Local Committees to receive complaints of sexual harassment from establishments where the ICC has not been constituted due to having less than ten workers (section 6) and also places an obligation on employers to provide training and raise awareness among their workforce regarding the prevention of sexual harassment at workplace. Since the implementation of the POSH Act in 2013, the Supreme Court and High Courts in various states have pronounced judgements dealing with the nuances of sexual harassment at workplace, helping to develop jurisprudence on the POSH Act. The punishment for committing sexual harassment can be rigorous punishment for a term that may extend to three years or with fine or with both. The Act also outlines penalties for non-compliance with the Act including fines for employers upto 50,000 RS.
Sexual Harassment Laws In Other Countries
1. United States Of America
The USA defines ‘sexual harassment’ as an unwelcomed sexual conduct, remarks and gestures against anyone. In USA the Civil Rights Act,1964 deals with the provisions of sexual harassment and the suits filed against this act. The Civil Rights Act came into force on November 1991 and was implemented by the Equal Employment Opportunity Commission (EEOC), 1965. The Act protects all kinds of discrimination against the people on the basis of colour, sex, caste, creed or religion. Before 1991 the only remedy that was granted to the victims was that of the “injunctive relief”.
JENSON v. EVELETH TACONITE CO. was the first case that was reported against sexual harassment in USA, there were many cases resolved and this case was set as the precedent. As the number of cases increased the federal courts stated that the workplace discrimination will not amount to sexual offence or harassment, so the EEOC in 1980 formulated the “Guidelines on Discrimination because of Sex” and any discrimination offence was resolved by the guidelines given by EEOC. Under the Act the employers who engage in or permit sexual harassment in the workplace can face various penalties including reprimands, demotions, salary reductions, suspensions and even terminations, with victims potentially receiving compensation for damages and reinstatement. There are also class action suit available to the victims, the Jenson case was registered in the year 1988 and it was dragged till 1977.
2. Australia
Australia defines ‘sexual harassment’ as unwanted sexual behaviour that makes an individual feel intimidated, humiliated or offended when such reactions are reasonable. The act of sexual harassment includes: kissing that isn’t welcome, leering, making calls that are sexually explicit, questions concerning one’s personal life or appearance that are intrusive, other forms of inappropriate physical contact that aren’t welcome, sexual requests, staring, hugs that aren’t welcome, sending emails and text messages that are sexually explicit etc.
In Australia sexual harassment in the workplace is prohibited under the Sex Discrimination Act 1984 and the Fair Work Act 2009, with employers having a positive duty to prevent it. The Fair Work Act of 2009 was implemented recently to make significant advancements in preventing and addressing sexual harassments that has a long history in the country. The purpose of the new law is to enhance rather than replace the existing laws that ban sexual harassment that are contained in the Sex Discrimination act, section 28A of the Sex Discrimination Act states that sexual harassment occurs when an individual makes an unwelcome advance, or an unwelcome request for sexual favours, to the individual who is being harassed or if an individual engages in other unwelcome conduct of a sexual nature in relation to the person harassed, the Fair Work Act of 2009 bans sexual harassment associated with work and includes workplace sexual harassment. The legal changes will also allow the victims to approach the Australian Government’s Fair Work Ombudsman and unions to seek compensation, financial penalties and other orders against the harassers and the businesses that fail to take reasonable measures to protect the workers from such harassments.
3. United Arab Emirates
Sexual harassment in the workplace in UAE refers to unwanted an inappropriate behaviour of a sexual nature that creates a hostile or intimidating work environment. UAE is a country that provides great respect for its women citizens and hence it has strict laws and regulations to combat this issue.
The UAE Penal Code covers both verbal and physical workplace harassments in Article 413 of the Code and penalties for such offences in Articles 324 and 325. The Federal Law No. (3) of 2016 addresses cybercrimes including online harassments that too occurs in the workplaces. The laws of the country provides the employees the right to report the incidents of harassments and complaints can be filed with the human resource department or directly with the Ministry of Human Resources and Emiratisation and for the witnesses they are encouraged to report the harassments. The employers are responsible for maintaining an anti-harassment workplace environment for its workers. According to the UAE laws the harassers face severe penalties as punishment including fines and imprisonment. Article 324 of the UAE Penal Code specifies imprisonment for upto to AED 10,000. Article 325 of the UAE Penal Code increases these penalties for repeated offences. For women facing uncomfortable situations from male colleagues there are clear steps to address this issue like the communication – communicating with the person trying to harass about the discomfort she face and make him aware about the seriousness of the offence and that it is considered as a criminal offence in the country, Employer Complaint – she can complaint to her employer about the issue and to take necessary steps against the harasser, Internal Investigation – the employer shall conduct an investigation based on the complaint, Criminal Complaint – a woman facing harassment or uncomfortable situations in the workplace has the right to file a criminal complaint with the police under Articles 411, 412(1) and 413 of the UAE Penal Code.
Conclusion
Even though the other countries do have sexual harassment laws as India, the procedures, punishments, enforcement mechanisms, legal structures, degree of strictness and even the definition of “sexual harassment” are all different from each other. The comparison of India’s sexual harassment laws with those of the other countries indicates that the Indian POSH Act,2013 is a progressive law but it requires strict implementations, expanded coverage and more stronger punishments. India can adopt the best global practices to ensure overall workplace safety from not only the countries mentioned above but also from other countries including UK and Canada.
