This article is written by Ujjayini Banerjee, pursuing Certificate Course in Prevention of Sexual Harassment at the Workplace from Lawsikho. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).
As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “Act”), every workplace that employs more than 10 persons shall constitute an Internal Committee to adjudicate complaints of sexual harassment. In a workplace where the majority of the members of the Internal Committee (except the external member) work together, there may be inherent biases that may influence the decision making of the Internal Committee, despite the best possible training and capacity building exercises by the employer.
Often it may happen that the behaviour or actions that may be innocent or harmless to someone may be deemed as sexual harassment by another. Additionally, what may seem as acceptable behaviour or action to one person may be offensive or discriminatory to another.
Therefore, considering how diverse our workforce has become, and the different perspectives members of such workforce may have, it has become imperative to adhere to a standard that would determine what amounts to sexual harassment and what does not.
In light of the biases as mentioned hereinabove and the differences in perception, a parameter such as the “reasonable man test” is crucial in determining what amounts to sexual harassment and adjudicating complaints thereof.
What is the reasonable man/person standard?
The “reasonable man test” is a hypothesis used by courts of law to lay down a legal standard of whether an action is negligent or not. A reasonable person is “hypothetical person in society who exercises average care, skill, and judgment in conduct”.
It is often used in cases of accidents due to negligence to determine how an action taken by a person may be undertaken or avoided to not cause harm to another person. This means that the reasonable man standard tries to lay down the threshold for objectively determining what a reasonable man ought to have done given the circumstances, and whether the accused person has acted as a reasonable man ought to have acted.
What constitutes sexual harassment?
The Act defines sexual harassment in concurrence with the Supreme Court of India’s judgment in Vishaka v. State of Rajasthan. Accordingly, ‘sexual harassment’ includes any unwelcome sexually coloured behaviour, whether directly or by implication, such as (i) physical contact and advances, (ii) demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
Furthermore, any act in the following circumstances also amounts to sexual harassment at the workplace:
(i) implied or explicit promise of preferential treatment; or
(ii) implied or explicit threat of detrimental treatment; or
(iii) implied or explicit threat about the present/future status of one’s employment; or (iv) interference with one’s work or creating an intimidating or offensive or hostile work environment; or
(v) humiliating treatment likely to affect health or safety.
Though the ambit of sexual harassment in terms of the Act is wide and expansive, to determine whether an action or behaviour amounts to sexual harassment depends on the specific facts of the case.
This is where the reasonable person test comes into play in the context of sexual harassment at the workplace.
What is EEOC Guidance?
The Equal Employment Opportunity Commission (“EEOC”) issued the Policy Guidance on Current Issues of Sexual Harassment in 1990 which, inter alia, defines sexual harassment and discusses employer’s liability in case of sexual harassment.
For determining whether an act is severe or prevalent enough to create a hostile workplace, the accused person’s behaviour should be assessed based on the reasonable person’s viewpoint. If the actions of the accused were insufficient to hamper the work environment of a reasonable person, then such actions would not amount to harassment. Here, the EEOC stresses the importance of having an objective view of the actions or behaviour.
In addition, the EEOC also highlights the need to consider the context of the complaints, and whether a reasonable person would react in the same way as the victim of the alleged harassment if subject to the same circumstances. Furthermore, the EEOC states that the sexual harassment charges have to be viewed from the perspective of the person alleging that such changes took place and not from the perspective of the general public or majority.
This is quite evident in our day to day lives. We often see people use or ourselves use gender stereotypes to make fun of someone. Depending on the context and severity, this may or may not amount to sexual harassment. It would be beneficial to use the reasonable person standard to determine this. Though such behaviour may be acceptable to most, it could be harmful to a particular individual given their specific circumstances and therefore may create a hostile work environment for such an individual.
To further elaborate its point, the EEOC gives the example of ‘A’ inviting ‘B’ to the regular gatherings of all the employees after office hours. ‘B’ may consider this as sexual advances. However, considering that all employees are together invited to such gatherings, a reasonable person may not view the same as sexual advances. Hence, in this example, viewing it from the reasonable person’s perspective and taking into consideration the context of the invitation, we can determine that such actions on the part of ‘A’ do not amount to sexual harassment or contributing to the creation of a hostile work environment.
Reasonable Woman Test
A United States Court of Appeals, in the matter of Ellison v. Brady had laid down the ‘reasonable woman’ test. In this case, Kerry Ellison had complained of being stalked and sexually harassed by her colleague leading to her working in a hostile environment. When she raised complaints, it was not viewed seriously by her employer who felt that she was being overly sensitive and that the incidents were trivial. The District Court had tossed her case out stating that the actions of the defendant were not threatening or severe. However, in 1991, the Court of Appeals reversed the decision of the District Court. It stated that under the circumstances to which Ellison was subjected, and becuase women are subjected to severe actions of sexual assault or rape, any reasonable woman in Ellison’s position would be equally worried that mild forms of sexual harassment like what Ellison was being subjected could be a prelude to more violent forms of sexual harassment.
Essentially, what the US Court of Appeals sought to establish was that though a particular action is perceived by the majority as acceptable or harmless, it does not automatically mean that it is so. The said actions have to be viewed from the perspective of the person claiming that they have been harmed by such actions.
The Delhi High Court has held a similar view in the case of Dr. Punita K Sodhi v Union of India & Ors.
In this case, Dr Punita Sodhi worked under Dr KPS Malik at Safdarjung Hospital, Delhi, where the latter started looking for opportunities to get close to the former which ruined the work environment for her at Safdarjung Hospital. He went to the extent of accusing her of incorrectly treating a patient, issuing false memos and even seeking her termination.
Dr. Sodhi eventually listed out 47 instances of sexual harassment by Dr. Malik and requested that he be transferred as it created a hostile work environment for her. Dr. Malik, in turn, chose to accuse Dr. Sodhi of academic fraud and of misrepresentation.
The Ministry of Health & Family Welfare, their employer, chose to not follow the Vishaka Guidelines and instead of having an Inquiry Committee as required by the Guidelines, constituted a committee of three doctors. When Dr. Sodhi approached the National Commission for Women, the committee was reconstituted with persons junior to Dr. Malik which is the opposite of the directions of the Dept of Personnel & Training which had clarified that committee members should be senior to an accused person.
During an enquiry by the reconstituted committee, Dr. Sodhi was reprimanded both for doubting the legitimacy of the committee and was even issued a Show Cause Notice as to why she shouldn’t be punished for “false accusations”. Meanwhile, Dr. Malik’s complaint was admitted by the same committee, without asking any questions.
The Delhi High Court not only found the committee’s formation was invalid but also found the enquiry was severely flawed. In addition, the Delhi High Court recognised that sexual harassment is a subjective matter. It stated that often men view sexual harassment as ‘harmless social interactions’ which ‘overly sensitive women’ may find offensive and therefore, it stated that it chooses to view actions amounting to sexual harassment from the victim’s perspective. Thus, the ‘reasonable woman’ test was reiterated by the Delhi High Court, as well.
Frivolous complaints in the context of the reasonable man/person test
Section 14 of the Act penalises false, frivolous and malicious complaints of sexual harassment, and the complainant is penalised in terms of the Act if:
i) the allegation is malevolent;
ii) the complainant knows the allegation is false and still files the complaint; or
iii) the complainant produces false or forged documents as evidence to substantiate their claim.
However, the complainant’s mere inability to authenticate or prove an allegation does not attract the applicability of Section 14.
Using the ‘reasonable person’ test, we may find that in certain situations, complaints of sexual harassment are unwarranted or ‘frivolous’. As stated by the courts in India, the US and the EEOC, we have been made to understand that complaints of sexual harassment are contextual. Therefore, there may be instances where conduct is found objectionable or hostile by an individual who would not have been considered as such by another individual possessing ‘average care, skill, and judgment in conduct’.
Like the example provided by EEOC of an employee being invited to regular dinners of all the team members by her boss, if the employee feels threatened by such conduct and files a complaint of sexual harassment without having any other incident to corroborate her claim, the reasonable person test could be applied to determine the fate of her complaint. If the boss has not subjected her to any behaviour that would threaten or create a hostile work environment for any average reasonable person in her situation, then this particular employee’s complaint would also not be admissible. It would amount to a frivolous complaint, though it may be incorrect to impose any punishment upon the complainant, in terms of the Act.
In Additional District and Sessions Judge ‘X’ v Registrar General, High Court of Madhya Pradesh, the Supreme Court of India stated that whether an act constitutes sexual harassment or not may depend on the ‘sensitivity and perception of the harassed individual’. Therefore, the reasonable person test would seem to be a useful tool in such circumstances, because the law seeks to penalise behaviour that an average person would find objectionable or threatening and not from the perspective of an extremely sensitive person. The petitioner, a former Additional District and Sessions Judge of the Madhya Pradesh Higher Judicial Service, had been subjected to sexual harassment by a sitting judge of the Madhya Pradesh Court who would stare at her, pass comments on her looks, and even placed his hand on her back once. The Supreme Court contended that her claim was legitimate, and allowed her appeal.
Given the sheer number of incidents of violence against them, women may be overly suspicious when a colleague is being friendly or too comfortable with her. She may consider the conduct as harassment and say that it is creating a hostile work environment for her. If she files a complaint, any committee inquiring into it may not find merit in her complaint and deem it to be frivolous. The idea is not to create an antagonistic environment for any employee who wishes to raise an issue faced by them, so punishing them may not be a rational decision. Instead, clearly defining the yardstick for unacceptable or harassing behaviour is essential.
Pre-empting incidents of frivolous complaints is possible only by raising awareness. There is an imminent need for educating employees about what constitutes sexual harassment and what the threshold of acceptable behaviour at the workplace is. What this will do is (i) prevent employees from innocently doing or saying something that may be disagreeable or offensive to anyone and (ii) preventing misuse of the provisions of sexual harassment redressal by complainants who are more sensitive or more easily hurt than an average person. This will, in turn, ensure that the provisions of the Act are used for their intended purpose and valuable resources of the inquiring committees/adjudicating authorities are not wasted.
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