Legal

Sexual Harassment and Sex Discrimination at Work

calendar19 May, 2023
timeReading Time: 8 Minutes
Sexual Harassment and Sex Discrimination at Work

Sexual harassment at work is any unwanted or offensive sexual behavior or approach made to a victim while they are working that makes the environment unpleasant or threatening. Physical touches, sexual remarks, requests for sexual favors, sexual jokes or gestures, and the display of sexual materials are only a few examples of its numerous forms.

Sexual harassment at work can happen to anyone, regardless of gender or sexual orientation. Clients, coworkers, or superiors may all be guilty of it. It is a sort of prejudice that can make a workplace unfriendly, limit an individual’s ability to do their job, and be harmful to their mental and physical health.

What is Sex Discrimination at Work?

Sexual discrimination, also known as gender discrimination, is when someone is treated unfairly or is subjected to prejudice because of their sex or gender. Pay discrimination, bias in recruiting and promotion, unequal access to chances for training and development, among the many examples are sexual assault and many forms it can take.

Workplace sex discrimination examples include paying women less than men for the same job, denying women opportunities or promotions based on their gender, sexually harassing women, stereotyping people based on gender roles or expectations, and creating a toxic or troubling work environment based on gender.

Legal Provisions for Preventing Sexual Harassment and Sex Discrimination at Work

To prevent workplace harassment and discrimination, the Indian government has enacted a number of measures.

  • The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013:

The fundamental law governing sexual harassment at work is the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The statute provides rules for companies to follow in order to prevent and address sexual harassment claims. This law establishes internal complaints committees (ICCs) in all organisations with more than 10 employees and defines sexual harassment in the workplace. Additionally, it outlines the process for filing complaints, conducting investigations, and adjudicating sexual harassment cases.

  • The Equal Remuneration Act, 1976:

The act is focused on ensuring that everyone, regardless of sex or gender, receives the same wage for the same job or work that is similar to it. It prohibits discrimination based on a person’s sex when it comes to how much money employees are paid.

  • The Maternity Benefit Act, 1961:

The Maternity Benefit Act of 1961[1] primarily deals with providing maternity benefits to female employees. The act offers benefits to female workers who are expecting a child, including maternity leave and nursing breaks. By ensuring that female employees are not subjected to maternity or pregnancy discrimination, the act indirectly addresses the problem of gender discrimination. It prohibits terminating a woman while she is on maternity leave and obligates companies to give female workers a safe and healthy working environment.

  • The Industrial Employment (Standing Orders) Act, 1946:

This act is a central piece of legislation that regulates the terms and conditions of employment in industrial establishments. The act requires employers to define the terms and conditions of employment in writing and prohibits discrimination against any employee based on their gender. The act forbids discrimination on any grounds and obligates companies to create a secure and healthy workplace for all workers. This includes discrimination against women, which encompasses concerns of sexual harassment and discrimination based on gender.

  • The Companies Act, 2013:
    The act has provisions that address sex discrimination and sexual harassment in the workplace.
    According to Section 134(3)(t) of the act, a company’s annual report must contain the following information:
    • The company’s strategy for preventing and addressing workplace sexual harassment of women
    • The number of complaints that were received and addressed in a given year
    • The number of open cases, if any
    • Information on the employee training or awareness campaigns that were held in this respect

Additionally, according to Section 149(1) of the Act, every listed company and any other company with a specific class of shareholders or annual revenue must have at least one female director on its board. With this clause, the boardroom will be more diverse, and women will be more likely to participate in top-level decision-making.

  • The Indian Penal Code, 1860:

The IPC has several provisions that address sexual harassment and sex discrimination in the workplace.

Sexual harassment is defined in Section 354A of the IPC, and it is punishable by law. According to the provision, sexual harassment includes any physical contact or advances that involve unwanted and explicit sexual overtures, demands or requests for sexual Favours, the showing of pornography, or any other unwanted physical, verbal, or nonverbal behavior of a sexual nature. According to the provision, such offences are punishable from 3 years to five years in prison and a fine.

Additionally, the IPC’s Section 509 addresses the offence of using gestures or words that disrespect a woman’s modesty. According to the clause, such actions are punishable by up to three years in prison as well as a fine. Section 354 of the IPC defines assault or criminal force on a woman with the intent to insult her modesty in circumstances of sex discrimination. According to the provision, such offences are punishable by up to five years in prison and a fine.

  • Indian Constitution:

The Indian Constitution has many clauses that support gender equality and prohibit sexual harassment and discrimination in the workplace.

According to Article 15 of the Constitution, sex-based discrimination is illegal.It states that no citizen shall be subject to any disability, liability, restriction, or condition based on sex, and that the state shall not discriminate against any citizen on the basis of gender.

In addition to this, Article 16 of the Constitution prevents discrimination on the basis of sex and guarantees equal opportunity in cases involving public employment.

The state is required under Article 39(a) of the Constitution to guarantee that men and women have an equal right to an appropriate standard of living and that ownership and control of the community’s material resources are distributed in a way that best serves the common good.

The Constitution also guarantees the right to life and personal liberty, which includes freedom from sexual harassment and discrimination and the right to work in a secure and healthy workplace. The right to live with dignity is one of the rights protected by Article 21 of the Constitution, and the Supreme Court of India has construed this right to also include the right to work with dignity.

These legal provisions aim to create a safe and secure work environment for women employees and provide them with legal recourse against sexual harassment and sex discrimination at the workplace.

Case laws:

There have been several landmark cases in India related to sexual harassment and sex discrimination at the workplace.

  • Vishakha vs State of Rajasthan (1997):

As a result of this incident, the Vishakha Guidelines were created, which set the foundation for preventing and resolving workplace sexual harassment. Later, the regulations were replaced by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013.

  • Apparel Export Promotion Council vs A.K. Chopra (1999):

This case established that sexual harassment need not necessarily involve physical contact, and that even verbal abuse or creating a hostile work environment could constitute sexual harassment.

  • Medha Kotwal Lele vs Union of India (2013):

This case highlighted the importance of treating sexual harassment complaints seriously and taking prompt and effective action. The court ordered the employer to take appropriate action against the accused, who was a senior employee, and to provide compensation to the victim.

  • Anjali Kapoor vs M/S Travel Post (2013):

This case emphasized the employer’s responsibility to prevent sexual harassment and provide a safe work environment. The court held the employer liable for failing to take action against the accused, who was a customer, for sexually harassing the victim.

  • Pawan Kumar vs Jai Narain Vyas University (2015):

This case established that the burden of proof in sexual harassment cases lies with the employer, and that it is the employer’s responsibility to investigate complaints and take appropriate action.

These cases highlight the importance of preventing and redressing sexual harassment and sex discrimination in the workplace, and the need for employers to take prompt and effective action to address such incidents.

Reasons of Failure to Enforce the Laws

Even though there are laws prohibiting sexual harassment and sex discrimination at work, these laws have occasionally not been followed. Among the causes of the legislations failure to be put into effect are:

  • Lack of Knowledge:

When it comes to their rights and obligations in relation to sexual harassment and sex discrimination, employers and employees frequently lack knowledge. This may lead to a failure to notice and report instances of discrimination and sexual harassment.

  • Fear of Retaliation:

If employees report instances of sexual harassment and sex discrimination, they may fear retaliation from their bosses or coworkers. This might cause such instances to be reported less thoroughly.

  • Ineffective Complaint Procedures:

Employers may set up complaint procedures, but these procedures may not be sufficient to deal with occurrences of sexual harassment and sex discrimination. As a result, workers may stop reporting occurrences and lose faith in the system.

  • Lack of Enforcement:

The legislative rules pertaining to sexual harassment and sex discrimination may not be strictly enforced by the government and regulatory organizations. This may lead to employers not taking the problem seriously and breaking the law.

  • Discrimination and Bias:

There may be prejudice and discrimination towards women and other marginalized groups, which can make it difficult to deal with instances of sexual harassment and sex discrimination.

Continued efforts to increase awareness, set up efficient complaint procedures, and severely enforce the rules are required to address these difficulties and guarantee the successful execution of the laws. Additionally, employers should encourage a climate of equality and respect at work and take responsibility for maintaining a welcoming and secure working environment for all staff members.

What Can Employers Do To Prevent Sex Discrimination And Sexual Harassment In The Workplace?

Employers can take a number of actions to stop sexual harassment and discrimination at work. Among these actions are:

  • Create And Implement A Thorough Policy:

Employers should have a written policy that explains what constitutes sexual harassment and sex discrimination, gives instances of improper behavior, and describes how to file and handle complaints.

  • Training:

Employers should regularly train all staff members, including managers and supervisors, on how to avoid sexual harassment and discrimination at work. What constitutes sexual harassment, how to report it, and how to handle complaints should all be included in the training.

  • Encourage Reporting:

Employers should promote a culture of reporting and encourage staff members to come forward with any instances of discrimination or sexual harassment. To make it simpler for employees to report such instances, employers should also offer multiple reporting channels, such as a dedicated hotline or online reporting system.

  • Conduct Regular Assessments:

To identify any possible hotspots for sexual harassment or discrimination based on employers should regularly examine the atmosphere of their workplace. Additionally, they need to keep an eye on how well their policies and training initiatives are working.

  • Take Prompt and Effective Action:

Investigate and address any allegations of sexual harassment or sex discrimination as soon as possible. Employers should respond swiftly and decisively in this situation. Additionally, they ought to punish any employee found guilty of such behavior with proper sanctions.

  • Help The Victims:

Employers should offer counseling and legal help to those who have been subjected to sexual harassment or sex discrimination.

  • Promote A Culture Of Respect:

Employers should promote a culture of respect in the workplace by encouraging diversity and inclusivity, treating every worker with respect, and by establishing a secure and safe working environment.

By taking these steps, employers can create a workplace that is free from discrimination and harassment, and that promotes equality, respect, and inclusivity for all employees.

What Are Some Ways The Employer Can Support The Complainant?

Employers should offer support and assistance to workers who report instances of sexual harassment or sex discrimination at work. Employers can assist complainants in the following ways:

Supporting the Complainant Emotionally:

  • Employers should help the complainant emotionally by paying attention to their worries, recognizing the effects of the occurrence, and demonstrating sympathy.

Confidentiality:

  • Employers must guarantee that the complainant’s identity is kept secret and that their privacy is respected throughout the course of the investigation.

Offering Counseling Service:

  • Employers should provide the complainant with counselling services, such as access to an employee assistance programmer or links to outside support groups.

Time Off:

  • Employers should give the complainant time off, if necessary, for things like doctor’s visits, court appearances, or their mental health and wellbeing.

Protecting Against Retaliation:

  • Making sure the complainant isn’t exposed to any unfavorable job actions, such as termination, demotion, or harassment as a result of filing the complaint.

Informing the Complainant:

  • Employers must tell the complainant about the status of the inquiry, the actions being taken to solve the problem, and any relevant outcomes.

Giving Employees Training and Education:

In order to stop current incidences and foster a respected and safe work environment, employers should give their employees training and education on sexual harassment and sex discrimination.

Employers may show they are serious about resolving sexual harassment and sex discrimination by offering help to complainants, and by doing so, they may promote a welcoming environment for all workers.

Conclusion

Serious problems like sexual harassment and discrimination in the workplace can negatively affect workers’ well-being, job happiness, and career prospects. There are many laws that exist to prevent and treat these problems. The laws do exist; however, there have been occasions where they haven’t been properly applied.

Employers can take a number of actions to prevent and address instances of sexual harassment and discrimination in the workplace, such as setting up education and training programmers, fostering an environment of respect and equality, and offering assistance to complainants. Employers may guarantee that all employees feel valued, respected, and empowered to speak up against any instances of harassment or discrimination they may encounter by implementing the following actions to promote a safe and inclusive work environment that is free from discrimination and harassment:

Read Our Article: Challenges Faced By Women In The Workplace

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