Equal opportunities for women: Looking beyond sexual harassment

While workplaces in India have made significant progress during the past decade in implementing the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH act), the law still needs to address gaps in moving towards safer workplaces for women. Global discourse on the issue has expanded to encompass various forms of gender-based discrimination. Indian law on workplace safety and equality, however, is limited to addressing acts of sexual harassment and excludes inequality and harassment based on sex in general.

The PoSH act was enacted to ensure women’s fundamental rights to equality and to live with dignity in the sphere of employment. It was also intended to provide protection in furtherance of India’s ratification of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). That said, the framework established by the PoSH act is limited to redress instances of a sexual nature at the workplace. The law consequently disregards instances of gender-based discrimination unless such discrimination takes place in combination with unwelcome conduct of a sexual nature. Indian courts have also underscored this exclusion of gender-based discrimination beyond sexual harassment.

This divergence is highlighted in the Kerala High Court’s ruling in Dr Prasad Pannian v Central University of Kerala, where the court held that an act in question needs to be, directly or by implication, in connection with an unwelcome sexual advance or sexual undertone for the allegation to be redressed through the avenues established by the PoSH act, those being the local and internal complaints committees. The rationale was based on a previous judgment of the court in KP Anil Rajagopal v State of Kerala and Ors. It had held that an allegation of only acts set out under section 3(2) of the PoSH Act is not sufficient to establish an offence under the law. This highlights the underlying requirement of behaviour or actions of a sexual nature to establish an act of sexual harassment.

This judicial position not only raises questions about the adequacy of legal protections against gender-based discrimination but also accentuates the need for a more inclusive and comprehensive approach to address workplace harassment in India. The Supreme Court in Nisha Priya Bhatia v Union of India held that the law in cases of sexual harassment at the workplace also covers situations in which the woman employee is subjected to prejudice, discriminatory attitudes and humiliation in day-to-day functioning. Taking any other view would defeat the purpose of the law. However, contrary to the decision in Nisha Priya Bhatia, the court in Dr Prasad Pannian distinguished the ruling on the basis that the analysis in Nisha Priya Bhatia was based on the guidelines in Visakha v State of Rajasthan and Ors and not the PoSH act.

Where there are clear shortcomings in ensuring redress of gender-based discrimination and ultimately building workplaces free of harassment, assistance may be found in comparative laws such as the US Civil Rights Act 1964 and the UK’s Equality Act 2010. The US law goes beyond sexual advances and extends protection to all forms of discrimination rooted in an individual’s sex. In Andrews v City of Philadelphia, the US Court of Appeals exemplified this principle by affirming that hostility and intimidation based on an individual’s sex can manifest through means beside sexual advances. The UK’s legislation also provides for protection against discrimination on grounds such as sex.

Though the PoSH act was introduced to safeguard women at the workplace, its framework to protect women against forms of gender-based harassment and discrimination beyond instances of a sexual nature remains unclear. Despite the law’s limitations, many organisations have implemented policies protecting employees against a wider range of discrimination on the basis of gender. They have also begun efforts to build diversity by creating LGBTQIA+ friendly workplaces. Organisations are not just looking at diversity and inclusion as part of a compliance checklist but are considering them as part of overall employee well-being and talent retention. As employers continue their affirmative efforts towards inclusivity, the framework of the law also needs to transform into a broader umbrella for all.

Agrima Awasthi is a counsel, and Shivanshu Sharma and Diksha Singh are associates at Wadhwa Law Offices.