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 behaviour 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 humour, 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.
This post focusses on when humor/banter at the workplace may qualify as ‘sexual harassment’ under the law. The purpose behind the post is not to morally police our readers but to encourage gender-sensitive behavior at the workplace by providing food for thought :)
I. Can you sexually harass someone without intention to commit sexual harassment?
Yes, the PoSH Act recognizes sexual harassment minus intention on the part of the accused.
Explanation:
A general principle of criminal law is ‘mens rea’ or intent to commit a crime. However, specifically under the PoSH law, intention on the part of the accused to commit sexual harassment is not a pre-requisite for establishing sexual harassment. This can be inferred from the definition of ‘sexual harassment’ under section 2(n) of the PoSH Act which defines sexual harassment in terms of ‘unwelcome acts or behavior’ rather than intention to commit sexual harassment.
Whether a remark or behavior (of a sexual nature) at the workplace is unwelcome (and hence, sexual harassment) is looked at from the perspective of the complainant (‘aggrieved woman’) and not the accused (‘respondent’) in a PoSH case. This is also clarified in FAQs related to the PoSH Act by Ministry of Women and Child Development.[1]Therefore, remarks made by a person without the intention of sexually harassing a woman may amount to sexual harassment in certain cases.
The litmus test of whether a remark is sexual harassment or not is that the woman who is subjected to such remarks considers it “unwelcome”. If she does not find it sexually harassing, no one else may complain on her behalf.
II. Can a joke or casual remark be considered sexual harassment?
Yes, verbal remarks of a sexual nature even when intended to be humorous may amount to sexual harassment. The definition of sexual harassment under the PoSH Act specifically includes sexually colored remarks and unwelcome verbal conduct of sexual nature.
Section 3 of the PoSH Act lists specific circumstances in which the act or behavior complained of may amount to sexual harassment. These include ‘humiliating treatment likely to affect her (complainant’s) health or safety’ as well as ‘interference with her work or creating an intimidating or offensive or hostile work environment for her’.
Unwelcome sexual/sexist jokes at the workplace when directed at a woman can be humiliating, resulting in a hostile work environment and therefore, may amount to sexual harassment.
III. What kind of jokes/remarks may qualify as sexual harassment?
Comments on a person’s clothes, physical appearance, personal life and sexuality may be perceived to be sexual harassment. Demeaning comments about women based on their gender and sexist remarks (for instance, that women do not belong in the workplace) may also be covered under workplace sexual harassment.
IV. What stand have eminent jurists taken on sexual/sexist jokes at the workplace?
Notably, the Chief of Justice of India, DY Chandrachud (speaking at an event organized by the Gender Sensitization and Complaints Committee of the Supreme Court) has condemned sexist jokes and inappropriate behavior towards women in the legal profession, calling for a zero-tolerance policy towards such conduct.
Key Takeaway:
Perception of humor is always subjective to the person at whom the joke is directed. Therefore, we advise a thumb rule that if you are in doubt whether a joke may be (un)savory to the recipient, it is best to refrain from cracking that joke at the workplace.
Disclaimer: This article does not constitute legal advice and is meant for informational purpose only.
[1] See ‘What is unwelcome sexual conduct?’. https://shebox.nic.in/user/faq