Law against sexual harassment at work revisited

While news reports indicate that a Bill to prevent workplace sexual harassment has been tabled in the Parliament, we take this opportunity to revisit the hitherto settled law against sexual harassment at work place. The law was developed in India by the courts by a series of directives, the first being in the case of the landmark and celebrated decision of Vishaka v. State of Rajasthan where in a public interest litigation the Supreme Court framed guidelines to be followed by one and all at work places so as to prevent sexual harassment of women working therein and also to create a secure and safe working environment for them. Thereafter again in Apparal Exports the Court went further in this direction. 

Much water has flown this area of law since then, except a legislative intervention or consolidation of these judicial practices. Thus until the Bill is passed by the Parliament, we will continue to be governed by these judge-made laws. The ambit and scope of these laws was recently explained by the Delhi High Court in a recently reported decision [2010 (172) DLT 409] wherein the High Court inter alia summerized the position of law, as traversed from various decisions of the Supreme Court and the High Court on this aspect, in the following terms;

65. At this stage, this Court would like to note the definition of 'sexual harassment‘ as explained by the Supreme Court in Vishaka which reads as under:

Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behavior (whether directly or by implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances whereunder the victim of such conduct has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, or honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 

66. It may be recalled that the immediate cause for the above writ petition was an alleged gang rape in Rajasthan by members of the upper caste of a child welfare worker belonging to a lower caste. In the backdrop of that event, Vishaka, a non-governmental organisation, sought the Court‘s intervention to protect and enforce the fundamental rights of women at the workplace. A three Judge Bench of the Supreme Court considered an act of sexual harassment to be in violation of Articles 14, 15, 19 (1) (g) and 21 of the Constitution. The Court observed that:

3. Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right to Life and Liberty'. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'… The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive.

67. Subsequently, in Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759, the Supreme Court further explained the definition of 'sexual harassment‘ in Vishaka as under: 

27. An analysis of the above definition, shows that sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee was capable of being used for effecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile working environment for her.

International law perspectives on what constitutes ‘sexual harassment’

68. In order to understand what constitutes 'sexual harassment‘, recourse is invariably had to the Vishaka Guidelines. Those guidelines, issued nearly thirteen years ago, have formed the basis of the definition of 'sexual harassment‘ in the statutory rules governing government servants. However, in order to understand 'sexual harassment‘ as but one form of sex based discrimination, which also stands prohibited, recourse could be had to the CEDAW to which India is a ratifying party. The General Comments brought out by the CEDAW Committee on Article 11 of the CEDAW offers a further explication: 

17. Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace. 

18. Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.

69. The Directive 2006/54/EC dated 5 July 2006 of the European Parliament and of the Council '  on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)‘ defines 'harassment‘ and 'sexual harassment‘ in Article 2 as follows:

(c) harassment: where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment;

(d) sexual harassment: where any form of unwanted physical, verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.

70. To understand the different ways in which the expression is defined elsewhere, reference may be made to the recently enacted Equality Act of 2010 in the United Kingdom which consolidated the various statutes and regulations which operated in the field of anti-discrimination law, including the Sex Discrimination Act of 1975 and the Employment Equality (Sex Discrimination) Regulations of 2005. Besides 'discrimination‘, the Equality Act defines 'harassment‘ and 'victimisation‘ as 'prohibited conduct‘ as follows: 

26. Harassment

(1) A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of—

(i)violating B's dignity, or

(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if—

(a) A engages in unwanted conduct of a sexual nature, and

(b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if—

(a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,

(b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. 

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect. 

(5) The relevant protected characteristics are—

age;

disability;

gender reassignment;

race;

religion or belief;

sex;

sexual orientation.

27. Victimisation

(1) A person (A) victimises another person (B) if A subjects B to a detriment because—

(a) B does a protected act, or

(b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act—

(a) bringing proceedings under this Act;

(b) giving evidence or information in connection with proceedings under this Act;

(c) doing any other thing for the purposes of or in connection with this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

71. In the United States of America, the Code of Federal Regulations distinctly recognizes three kinds of acts of sexual harassment. 

“29 C.F.R. 1604.11 Sexual harassment.

(a) Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when

(1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment,

(2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or

(3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. 

72. Further, the Equal Employment Opportunity Commission in the U.S.A is to look into the facts of each case as a whole and in proper context to determine whether the act/s complained of amount to sexual harassment.

“29 C.F.R. 1604.11 Sexual harassment.

(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

73. In Janzen v. Platy Enterpirses Ltd. [1989] 1 S.C.R. 1252, two waitresses at a restaurant had complained of sexual harassment and the Human Rights Commission as well as the Court of Queen‘s Bench in Manitoba, Canada had ruled in favour of the complainants. The Court of Appeal held that there was no discrimination on the basis of sex and that the employer could not be liable for the sexual harassment by its employee. The Supreme Court of Canada reversed the Court of Appeal. It noted that Section 19 of the Human Rights Code expressly prohibited sexual discrimination in the workplace. Section 19 of the Human Rights Code in Canada reads: 

19 (1) No person who is responsible for an activity or undertaking to which this Code applies shall

(a) harass any person who is participating in the activity or undertaking; or

(b) knowingly permit, or fail to take reasonable steps to terminate, harassment of one person who is participating in the activity or undertaking by another person who is participating in the activity or undertaking.

19 (2) In this section "harassment" means

(a) a course of abusive or unwelcome conduct or comment undertaken or made on the basis of any characteristic referred to in subsection 9(2); or

(b) a series of objectionable and unwelcome sexual solicitations or advances; or

(c) a sexual solicitation or advance made by a person who is in a position to confer any benefit on, or deny any benefit to, the recipient of the solicitation or advance, if the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(d) a reprisal or threat of reprisal for rejecting a sexual solicitation or advance.

74. Discussing discrimination in the context of sexual harassment, the Supreme Court of Canada observed in Janzen:

In keeping with this general definition of employment discrimination, discrimination on the basis of sex may be defined as practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender.

75. After undertaking a detailed discussion of the concept of sexual harassment, the Court observed as under:

Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

Dickson, C.J. defined 'sexual harassment‘ in the following terms:

Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.

76. In Ellison v. Brady [U.S. Court of Appeals, Ninth Circuit 924 F. 2d 872 (1991)], the Court of Appeals formulated the 'reasonable woman‘ standard and observed:

We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts "should consider the victim's perspective and not stereotyped notions of acceptable behavior." If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.

We therefore prefer to analyze harassment from the victim's perspective. A complete understanding of the victim's view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a `great figure' or `nice legs.' The female subordinate, however, may find such comments offensive. Men tend to view some forms of sexual harassment as "harmless social interactions to which only overly-sensitive women would object". The characteristically male view depicts sexual harassment as comparatively harmless amusement.

We realize that there is a broad range of viewpoints among women as a group, but we believe that many women share common concerns which men do not necessarily share. For example, because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior. Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely 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.

In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

Decision of our court

77. In U.S. Verma, Principal, DPS v. National Commission for Women 163 (2009) DLT 557 this Court, while holding that the NCW did not have the powers to take over the functions of an internal sexual harassment complaints committee suo moto, quashed the report of the sexual harassment enquiry committee appointed by the management, DPS Faridabad where three teachers and a staff member of the school had complained of sexual harassment. An internal report indicted the Principal in all the cases. However, the enquiry committee constituted subsequently by the management gave a clean chit to the Principal. All the complainants had left their jobs as a consequence of the allegations and counter allegations. After discussing the evolution of the law against sexual harassment, the Court observed as under: 

67. Whenever such complaints of harassment arise, it is expected that the authority - be it employer, regulator (of private enterprise, or agency, against which such complaint is made) is alive that such are outlawed not only because they result in gender discrimination, of the individual aggrieved, but since they create and could tend to create a hostile work environment, which undermines the dignity, self-esteem and confidence of the female employees, and would tend to alienate them. The aim of Vishaka was to ensure a fair, secure and comfortable work environment, and completely eliminate possibilities where the protector could abuse his trust, and turn predator, or the protector-employee would insensitively turn a blind eye.

Have a look at the decision.