Does intention of the accused matter when it comes to workplace sexual harassment?
By Harshita Tripathi, a fourth year student at West Bengal University of Juridical Sciences
Sexual harassment at workplace was first recognized by the Supreme Court of India in the case of Vishaka v. State of Rajasthan, wherein certain guidelines were laid down for dealing with cases of sexual harassment of women at the workplace. In furtherance of the same, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act in 2013 (“POSH Act”) was enacted for redressal of sexual harassment complaints.
While this statute aims at providing a safe working environment for women, it's effective implementation has proven to be a great challenge. The POSH Act lays down the definition of sexual harassment, however, institutions and courts continue to struggle with its interpretation. As per the POSH Act, the following unwelcoming acts either directly or by implication amount to sexual harassment: (i) physical contact and advances; or (ii) a demand or request for sexual favors; or (iii) making sexually colored remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
These acts in relation to an ask, favour or exchange constitute “quid pro quo” harassment, which is when, a favour or advantage is offered in exchange for a sexual activity. In a workplace setting where power dynamics exist between employees at different levels, such ‘favours’ amount to an abuse of power. It can easily be apprehended by those at the receiving end that denying such offers could lead to adverse consequences at the workplace. Thus, through such tactics, those with lower bargaining power are pressurised into giving consent.
The common misconception is that there must be some verbal comment of sexual nature or some physical contact as a precondition to constitute any action as sexual harassment. However, “sexual harassment” is much wider in scope. This was clarified in the case of Dr Punita K Sodhi v Union of India (2010), wherein the petitioner filed a case of sexual harassment against her male colleague superior to her in rank, for his vengeful methods of harassing her because she did not respond to his sexual advances.
In this case, the Delhi High Court held that “mens rea” or “intention” of the accused is irrelevant for qualifying an act as sexual harassment. It cited an important American case, Ellison v. Brady (1991), in which the U.S. Court of Appeals formulated the "reasonable woman’s standard" and held that the courts should consider the
“victim's perspective and not stereotyped notions of acceptable behaviour.”
The court observed that if it followed the standard of whether a reasonable man would harass, it would be running the risk of reinforcing the prevailing level of discrimination. It further remarked that conduct considered by many men as unobjectionable may offend many women. By this standard, sexual harassment is viewed as harmless social interactions to which only overly-sensitive women would object. The characteristic male view perceives sexual harassment as actions or gestures which are comparatively harmless in their view.
Illustratively, the act of stalking and ignoring consent of women has been normalised and even encouraged in Indian movies so much so that it can be considered to be ‘acceptable’ according to a ‘reasonable man’s’ perspective. However, if such perceptions are catered to then acts that constitute sexual harassment would not be actionable.
The Court in the aforementioned case pertinently acknowledges the fact that men and women have different lived experiences based on their gender and therefore reasonability cannot be equated at the same level. Justice Muralidhar recognizes that since women are more prone to be victims of sexual assault or rape as compared to men, they are inherently more concerned towards any sexual behaviour they encounter. Therefore, for a woman, any untoward behaviour can trigger the apprehension of aggravated assault and is perceived as a threat to safety. On the other hand, men, who are comparatively, seldom victims of sexual assault,
“may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”