This article is written by Priyanka Karwa, pursuing a Certificate Course in Prevention of Sexual Harassment at the Workplace from LawSikho.com.

Introduction

Sexual harassment is a form of sex-based discrimination. The Human Rights Code of Ontario (the Code) forbids all types of sex-based discrimination and contains provisions focused on sexual harassment. 

If left unchecked, sexual harassment can limit a person’s ability to earn a living, get housing, get an education, feel comfortable and secure, and otherwise participate entirely in society. Organizations that do not discourage sexual assault from taking place will incur high costs in reduced productivity, low morale, increased absenteeism and health care costs, and future legal expenses.

Recognizing every individual’s intrinsic dignity and worth and ensuring equal access and opportunities without discrimination remains a public policy. The 2013 Act on Sexual Harassment of Women at Work (Prevention, Prohibition & Redressal) sought to create an environment of awareness and shared respect for each person’s integrity and worth.

Hence this article aims to highlight the most common forms of sexual harassment at the workplace and I have tried to thrash out  a viable solution to dealing with sexual harassment at the workplace. 

Defining sexual harassment

Section 2(n) of the Act defines sexual harassment as:

“any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:

(i) physical contact and advances; or

(ii) a demand or request for sexual favors; or

(iii) making sexually colored remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”

The concept of sexual assault has continued to develop over time to represent a deeper understanding of how sexual power functions in society. For instance, it is well known that sex-based harassment and discrimination may not necessarily be sexual. Because of sex, behavior that is not expressly sexual can nevertheless amount to abuse. It is essential to interpret the situation in the overall sense.

Instances of sexual harassment at workplaces 

1) Spreading Rumours 

Although there are unequal power relations in many aspects of society, in the workplace, where hierarchies are standard, they tend to occur the most. Whatever a woman’s role may be, sexually portraying a female worker will undermine her status and appearance in other workers’ eyes. An employer was responsible for workers’ actions against a supervisor in at least one human rights decision. To undermine her reputation and professionalism, sharing degrading sexual rumors and gossip about a female employee is sexual harassment. One of the examples might be A disgruntled employee spreads stories about his female director, stating that she is having an affair with the company president, and that she is only successful because she “slept her way to the top.”

2) Quid pro quo 

Quid pro quo means “this for that.” In this sense, in return for some benefit (e.g., a promotion, wage increase) or to prevent some downside (e.g., termination, demotion) in the workplace, it includes expressed or implied requests for sexual favors. Harassment of Quid pro quo is committed by someone in a position of power or authority over another (e.g., manager or supervisor over a subordinate). A clear example of quid pro quo harassment would be a supervisor threatening to fire an employee if they do not have sex with the supervisor.

3) Verbally Creating a Hostile Environment

Hostile work environment harassment arises when speech or conduct is so severe and pervasive that it creates an intimidating or demeaning environment or situation that negatively affects a person’s job performance. In comparison to quid pro quo harassment, everyone in the work environment, including a colleague, boss, subordinate, vendor, customer, or contractor, can perpetuate this form of harassment. Hostile conditions in the work setting are not as easy to detect. Considering that an individual statement or event may not be profound, there may be demeaning conduct that is not focused on sex. There may be long gaps between offensive events. Inappropriate contact, sexual jokes or remarks, frequent demands for dates, and a work atmosphere where offensive images are shown are examples of actions that may create a hostile work environment.

4) Unwanted sexual statements

Sexual or “dirty” jokes, comments on physical features, spreading gossip about or rating others about sexual behavior or performance, speaking before others about one’s sexual activity, and showing or circulating sexually explicit sketches, photographs, and written content.

5) Unwanted personal attention

Letters, telephone calls, visits, pressure for sexual favors, pressure for unnecessary personal interaction, and pressure for dates where a sexual/romantic intent appears evident but remains unwanted.

Apart from these, few other forms of Sexual Harassment go unreported; here are some examples of it:

• Sharing with co-workers sexually explicit pictures or recordings, such as pornography or salacious gifs.
• Sending letters, notices, or emails with feedback.
• Showing unsuitable pornographic images or posters in the workplace.
• Telling dirty jokes or sharing sexual anecdotes. 
• Making sexual expressions. 
• Staring or whistling in a sexually provocative or offensive way.
• Making sexual remarks about appearance, clothes, or parts of the body.
• Inappropriate touching against another human, like pinching, patting, rubbing, or deliberately brushing up.
• Asking sexual questions, including inquiries about the sexual history of someone or their sexual orientation.
• Giving insulting remarks regarding the sexual identity of others.

These types of Sexual Harassment at the workplace often go unreported due to various reasons, hence, it becomes crucial to sensitize the employees towards it.

What can be done

POSH demands that any employer, at regular intervals, conducts seminars and awareness sessions to raise employee awareness of the requirements of POSH and orientation programs for members of the Internal Committee.

Indian judicial precedents have also highlighted the need for workshops to continue to raise awareness of women’s vulnerability, given that men can interpret sexual behavior in a vacuum without full regard to the social context or the underlying threats of violence perceived by a woman.

What are the sexual assault liabilities and penalties, and where do they fall?

Based on the determination of the trauma, pain, and depression endured by the victim, loss of job prospects, and medical costs incurred by the victim, whether for physical or psychological suffering and ‘aggrieved woman’ will have the right to compensation determined by the Internal Tribunal. As the payout is deducted from the wages of the person accused of sexual assault, it is also a deciding factor for the Internal Committee to arrive at the amount owed regardless of that person’s income and financial status. Such amounts can also be recovered via court action from a disgruntled employee.

The person found guilty of sexual assault, in addition to the payment of penalties, may be subject to acts ranging from demanding a written apology to withholding a promotion or pay increment to attend therapy sessions or doing community service.

Employers/companies’ liability relates to the failure to obey procedures for enforcing sexual assault policies and may range from around USD 735 for the first offense to loss of business license for subsequent ones.

What does an employee who believes they’ve been sexually harassed have to prove for a successful claim?

A clear allegation backed by facts, including witness accounts, is the key to a successful claim. The complaint should demonstrate that inappropriate and offensive behavior was directed at the complainant, that the conduct was at work as stated in POSH, and that the complainant suffered harm. There are instructions for information such as timelines, definition, etc., to be included in the complaint. The employee must file a complaint in writing immediately, preferably within three months of the incident.

A qualified Internal Committee is constitutionally empowered with a civil court’s powers, including the right to call witnesses and to request the production of records and the opportunity to contest the conclusions. The complainant’s lucid narrative of the event would be the fundamental factor in demonstrating to the judicious Internal Committee the complaint’s transparency and success.

The Importance of an Open Dialogue

Discussion of sexual abuse will lead to solutions and precautions for vulnerable staff, affecting both men and women. For example, a “Hands Off Pants On” ordinance was recently passed by the Chicago City Council that requires all hotels to install a panic button system along with a strict anti-harassment policy. The product of months of campaigning on advocacy grounds by local hospitality staff is this measure. But do these steps suffice?

Conclusion

The Act provides for prevention, prohibitive, and remedial process in the case of workplace sexual assault. However, there are many practical challenges, such as when only one/no female employee or unit locations are unacceptable for personal training. Still, the Act is a very efficient tool accessible to women, with its time-bound investigation mechanism and implementation, confidentiality, and no retribution guarantee. The penalties on the employer’s part for non-compliance function as a deterrent and make the Act more successful.

References

• https://www.wmlawyers.com/oakland-sexual-harassment-attorneys/types/
• https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/typesofsexualharassment.aspx
• https://vikaspedia.in/social-welfare/women-and-child-development/women-development-1/forms-of-sexual-harassment-at-workplace
• https://www.hrtechnologist.com/articles/hr-compliance/knowing-the-different-types-of-sexual-harassment-is-an-important-step-in-prevention-2/
• https://www.ymsllp.com/blog/harassment-blog/common-examples-of-sexual-harassment-in-the-workplace/
• https://www.thebalancecareers.com/examples-of-sexual-and-non-sexual-harassment-2060884
• https://blog.ipleaders.in/sexual-harassment-workplace/
• https://blog.ipleaders.in/deal-sexual-harassment-complaints-workplace/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.