Written by: Saloni Borse
The #MeToo movement saw a lot of women speaking up against the sexual harassment they faced in the workplace. From sportspersons to celebrities, women from all walks of life shared their ordeals on social media platforms.
Sexual harassment takes place more often than most of us would like to believe but only very few women report it. Between 2014 and 2017, sexual harassment at the workplace increased by 54%. As of July 2018, government data indicated that nearly two cases were reported every single day.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal ) Act, 2013, commonly referred to as the ‘PoSH Act’ is the law that provides a redressal framework for women at work, in case of sexual harassment. To understand the PoSH Act better, it’s essential we first begin with what the law says constitutes sexual harassment.
The law states that sexual harassment includes:
1. Any physical touches or advances.
2. Demands or requests for any sexual favours.
3. Making sexually coloured comments or remarks.
4. Showing pornography or other sexually explicit acts.
5. Any other unwelcome conduct which can be verbal, non-verbal or physical in nature.
The law lays down the above-mentioned situations as sexual harassment but how does it actually play out in the workplace? Not everything is as simple or as black and white as the law envisions. In fact, sexual harassment can take place in numerous forms.
Let us take a few examples to get a deeper understanding of what really can count as sexual harassment and its different elements. Let’s start with a common scenario: a workplace with two colleagues, Neha and Rahul.
Rahul comments on how Neha looks exceptionally ravishing in the skirt she wore that day. He means it as a compliment and leaves it at that. But Neha is offended and felt extremely uncomfortable by the comment. She is perturbed and is unable to perform any work that day.
Will this count as sexual harassment? Does the fact that Rahul meant the comment to be taken as a compliment negate the fact that Neha felt it to be unpleasant and distasteful?
Rahul is a part of a group chat where several vulgar and suggestive jokes are shared. He forwards those lewd jokes to Neha constantly. He even discusses them with other colleagues in front of Neha.
Neha does not appreciate these jokes. She finds them to be degrading and offensive in nature. She is extremely uncomfortable and asks Rahul to refrain from sharing and discussing these jokes. But Rahul tells her that they are amusing and are to be taken lightly.
Will this conduct of Rahul’s be counted as sexual harassment? Will that fact that they were only joking once again show that Neha’s reaction to them was over-the-top and she should not be offended by them?
Rahul asks Neha if she wants to have coffee with him later that evening. Neha politely refuses. The next day, Rahul once again asks her if she wants to have coffee. Neha refuses him again. Rahul repeatedly asks Neha for the next two weeks. Neha is frustrated and annoyed. She does not appreciate the gesture and states that she does not want to go out with Rahul for coffee.
In reaction to this Rahul tells the whole workplace that Neha refuted his kind offers several times and that she is stuck-up and arrogant. As a result, Neha is seen as an unfriendly person in the workplace and loses many friends.
Will this also constitute sexual harassment? Wasn’t Rahul only being nice and offering Neha coffee and nothing sexually explicit?
Neha has been working long hours and is visibly tired. She is sitting at her desk when Rahul comes up from behind her and starts massaging her shoulders. Neha immediately tenses up and feels extremely uncomfortable. She asks Rahul to stop but he says he only wants to give her a massage to relax her as she seems extremely stressed.
Can this also be called sexual harassment? Wasn’t Rahul only being nice and trying to make his colleague feel better? His intention was only to make her relax and there was nothing sexual. Can Neha still file a complaint of sexual harassment?
In all of the above situations, the answer to the question of whether sexual harassment has taken place is YES.
Rahul’s conduct in each scenario falls within the ambit of sexual harassment and Neha has every right to file a complaint against such behaviour.
What many people would look at is the intention behind Rahul’s actions. His actions were never explicitly sexual. In Situation 1 and 3 he only compliments Neha and expresses his interest in her. In situation 2 he finds the jokes harmless and amusing in nature whereas in Situation 4 he only wishes to make his colleague feel comfortable.
Humans are social creatures. We will partake in social interactions throughout our lives and express our interests, concerns, humour, etc. in many ways. So, Rahul may find that his behaviour was warranted and he did nothing wrong. What Rahul and many others fail to consider is that Neha also has the right to express her views and reactions to certain situations. In all of the above-mentioned situations, Neha is visibly uncomfortable. She does not welcome Rahul’s behaviour, no matter his intentions.
She perceives his conduct as inappropriate, unwelcoming and unpleasant. In all the situations, her perception of the conduct is to be valued more than whatever Rahul’s intention may have been.
Sexual harassment affects the victim in a drastic and lasting manner. The intention behind any conduct does not reduce the impact of those actions on the victim. Whatever the intention behind any conduct may be, the perception of it by the victim is to be given more importance.
This stance was taken in the US in the landmark case of Ellison v. Brady.  The Court said that when deciding whether a certain action is sexually harassing, one must look at whether an average reasonable woman would consider it to be sexual harassment. This stand of ensuring the victim’s perception of any conduct is given more importance than the intent behind it was introduced in India in Dr Punita K. Sodhi v. Union of India. 
In short, this means that if any woman perceives any act to be unwelcoming, or if any touch or comment makes her feel uncomfortable in any way, she is well within her rights to file a complaint against such behaviour. In all cases, the woman’s perception of the conduct is valued more than the intention of the perpetrator behind the conduct.
 U.S. Court of Appeals, Ninth Circuit 924 F. 2d 872 (1991).
 2010 SCC OnLine Del 3087.