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  • Writer's pictureDevika Agarwal

‘Wait, is that sexual harassment?’

Updated: Dec 30, 2023




Editor’s note: Sexual harassment occurs on a spectrum, it can range from subtle e.g. paying a compliment to a woman which is unwelcome and of a sexual nature, to an overt behavior e.g. a casting couch situation. While laws do exist to abate and address instances of sexual harassment in India, on several occasions many women dismiss subtle forms of sexual harassment like crude humor, assuming it to be “too mild” to constitute sexual harassment. Therefore, it becomes important to understand what sexual harassment entails, before one can exercise their rights under the law.


In ‘Wait, is that sexual harassment?’ series, we assess scenarios of sexual harassment which may likely occur at the workplace, through the lens of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (popularly the ‘PoSH Act’) in India.


In this installation, we detail below two such scenarios and decode whether they would be covered as ‘sexual harassment’ under the law. Please note that the scenarios are edited for succinctness and clarity. Names have been changed for the sake of confidentiality.


Disclaimer: This article does not constitute legal advice and is meant for informational purpose only.


Scenario 1: Sakhi and Raj (to whom she directly reports) are working in office. They are in the middle of a conversation about meditation and Raj asks Sakhi whether she meditates. Sakhi replies that she used to meditate earlier, but due to work commitments, has not meditated in a long time.

To this, Raj remarks in Hindi, “Idhar aao, main tumhaari pitai karta hoon” (in English, this translates to, “Come here, I will give you a beating”).

At that time, Sakhi does not think much of the remark and dismisses it with a polite smile. Back home, she wonders whether this is sexual harassment.


Scenario 2: Rakesh is the editor of a magazine, and Anjana is a junior reporter at the publishing house. One day when Anjana and Rakesh are in office, Rakesh is similarly bantering with Anjana and says to her, “I want to give you a whack on your ass”.

Anjana knows that Rakesh is teasing her. Anjana remains quiet and soon the moment passes.


ANALYSIS

Section 2(n) of the PoSH Act defines ‘sexual harassment’ as follows:

“sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: -

(i) physical contacts 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;


Q1. Is it sexual harassment if the remarks are not “of sexual nature” or “sexually colored”?

The behavior in question in both the scenarios is verbal conduct (namely, remarks). The definition covers remarks which are ‘of sexual nature’ or ‘sexually colored’. In Scenario 1, where Raj threatens to give Sakhi “a beating”, one might argue that the remarks are not ‘of sexual nature’ or ‘sexually colored’. Contrast this with Scenario 2 where the remark made by Rakesh refers to a woman’s physical attributes, namely her “ass” (and therefore, is ‘sexually colored’).

It is important to note that the definition under the PoSH Act is inclusive which means that conduct which falls outside of the definition may also be construed as ‘sexual harassment’ depending on the fact situation. Threatening to give a woman a beating can be just as sexually colored as threatening to specifically hit her on her “ass”.

Notably, clause 2 of section 3 of the PoSH Act recognizes specific circumstances that may amount to sexual harassment. The specified circumstances include “creating an intimidating or hostile work environment” and “humiliating treatment likely to affect her [a woman’s] health or safety”. Arguably, threat of physical harm (such as giving a beating to a woman) would fall under section 3.

Therefore, both Scenarios 1 and 2 could be covered under the definition of ‘sexual harassment’.


Q2. Is it sexual harassment if the remarks are meant to be humorous or said as a joke?

In both the scenarios detailed above, one might argue that Raj never intended to give Sakhi a “beating”, and nor would Rakesh actually have whacked Anjana’s “ass”.

The PoSH Act does not require ‘intention’ on the part of the perpetrator for classifying a behaviour as sexual harassment. An important element of the definition under the PoSH Act is that the behavior or act complained of is “unwelcome” (i.e. the sexual harassment victim does not welcome such behavior or act). A good indicator that the victim does not welcome a behavior or act is that it makes the victim uncomfortable.

Therefore, sexual harassment would cover any act/behavior which is unwelcome even if the behavior is intended to be humorous or meant as a joke.


Q3. If the person subjected to sexual harassment did not speak up at the time the said harassment occurred, does this mean that the behaviour was not sexual harassment? Further, does a woman lose the right to complain of the incident under the PoSH Act if she did not object to the behaviour at the time that it occurred?

Under the PoSH Act, a woman is not required to object to the harassment at the time the harassment occurs. It is conceivable that a woman realised that she had been subject to sexual harassment after some time has lapsed since the incident occurred. Take, for instance, the case of Sakhi who realised that the remark by Raj may have been sexual harassment after she had left office for the day.

While the behaviour does not cease to be sexual harassment if it is not reported right away, it bears noting that under section 9 of the PoSH Act, an aggrieved woman may make a complaint of sexual harassment within a period of 3 months from the date of the incident (in case of a single occurrence) or within 3 months from the date of the last incident (in case of multiple occurrences).


Q4. Would the behaviour not be classified as sexual harassment if it was a one-off incident?

Under the PoSH Act, a single incident may constitute sexual harassment. This is implied under section 9 of the PoSH Act which recognises single incidents of sexual harassment.


Q5. Would this be classified as sexual harassment had the relationship not been one of subordinate-reporting manager?

In both Scenarios 1 and 2, the sexual harassment in question occurred between a subordinate and a reporting manager. Under the PoSH Act, sexual harassment at workplace is covered even in cases where the victim is not subordinate to the perpetrator at work.

We will assess sexual harassment at workplace in different kinds of work relationships in later instalments of ‘Wait, is that sexual harassment?’.

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