In their zeal to protect women, lawmakers have set the course for curtailing sexual expression

The adoption of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill 2012 should be applauded as a landmark move in the direction of women’s right to equality. Yet, a close reading of the provisions reveals how, once again, good intentions are not sufficient and the sword of progress may in fact turn into boomerangs.

The strength of the Bill rests in the preamble, which categorically states that sexual harassment is a violation of women’s fundamental rights to equality and life. It further provides that women have the right to a safe environment in the workplace, free from sexual harassment — a commitment that is consistent with India’s obligations under the Convention of All Forms of Discrimination Against Women. This powerful endorsement of sexual harassment as a violation of women’s rights gets lost in the technicalities and poorly conceptualised provisions of the bill.

The legal definition of sexual harassment has unwelcome sexually determined behaviour (whether directly or by implication) as: physical contact and advances; a demand or request for sexual favours; sexually coloured remarks; showing pornography; and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Somewhat awkwardly, a separate clause deals with quid pro quo harassment — sexual conduct in which a threat is made or a benefit offered in order to obtain sex. It includes conduct that interferes with a woman’s work or creates an intimidating, offensive or hostile work environment for her; or constitutes health and safety problems for her.

Sexual harassment is a problem and experienced almost routinely by women in the workplace (as well as on public transport, the streets and other public spaces). However, in its zeal to provide an enabling environment for women in the workplace, the legislature has cast the net very wide — sexual gestures, offensive remarks, lurid stares, embarrassing jokes or unsavoury remarks might be among the litany of conduct and expression that could be caught by the new law. The central question is whether we want the heavy hand of the law to block the lurid stare or suppress the sexual joke, which may be somewhat embarrassing to some? Should embarrassment and shame on the topic of sex inform how we regulate sexual conduct in the workplace and elsewhere?

There are two ingredients to sexual harassment: firstly, the conduct must be unwelcome; secondly, it must disadvantage the complainant, for example by affecting her recruitment or promotion or creating a hostile work environment.

The first leg of the test places the burden on the complainant to prove that the conduct was ‘unwelcome’. But what constitutes “unwelcome” conduct? Should an employee’s dress style, social habits, or previous intimate relationship with a colleague in the workplace be taken into consideration when assessing if the conduct was unwelcome or welcome?

The existing case law reveals that a complaint may fail if she does not conform to dominant sexual norms, leading to the conclusion that what happened to her was welcome, or that she deserved it. For example, one U.S. Supreme Court held that a woman who drinks beer and hangs out with her male colleagues after work implicitly welcomes the unwanted sexual attention. Dress, conduct, modesty, chastity, and even profession, may be used to show that the harasser was incited to the conduct and thus constitute sufficient evidence to disqualify a claim of sexual harassment. Bar room dancers, waitresses, performers, are all vulnerable to such arguments.

The second leg of the definition, that the harassment must disadvantage the complainant, seems to have been either dispensed with or mitigated by the courts, leaving open the possibility that any kind of sexual remark that is neither severe nor pervasive, but may be offensive, sexist and bigoted, can be impugned under the act. Research shows that the law in other jurisdictions has resulted in the curtailment of sexual speech in the workplace, and encroached on rights to equality and sexual autonomy, rather than stopped the harassment.

Given the pressure on employers and the desire to avoid being subjected to litigation, employer-drafted codes can declare that the work space be sexually sterile, or employers can announce a ‘zero tolerance’ policy on sexual humour. In one example in the United States, when a library employee complained about a co-worker’s posting a cartoon that used the word ‘penis’ — with no sexually suggestive content at all — the library ordered that it be taken down.

Sexual harassment is a serious problem and the new act marks an important step in recognising a concern that affects most women. But there is a need for courts as well as rights advocates to ensure that women’s rights to equality in the workplace are not secured through the regulation of sexual conduct, muzzling of sexual speech, or moral surveillance of women’s lives. Such strategies have historically only perpetuated sexual stereotypes, sexual orthodoxy, and compromised on women’s fundamental rights. Workplace policies and codes must be drafted in a way that specifically recognises and respects an individual’s right to sexual autonomy and bodily integrity. Sexual harassment must be effectively addressed in support of and not at the cost of women’s fundamental rights as clearly set out in the preamble.

(Ratna Kapur is Global Professor of Law, Jindal Global Law School.)

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