Equal opportunities for women: Looking beyond sexual harassment

Workplace Safety and Equality in India: Addressing Gaps in the PoSH Act

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 and its Limitations

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.

The Need for a Comprehensive Approach

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.

Comparative Laws and the Way Forward

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.

Towards Inclusive Workplaces

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

SDGs, Targets, and Indicators Analysis

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 5: Gender Equality
• SDG 8: Decent Work and Economic Growth
• SDG 10: Reduced Inequalities

The article discusses the need for workplace safety, equality, and the elimination of gender-based discrimination. These issues are directly connected to SDG 5, which aims to achieve gender equality and empower all women and girls. The article also highlights the importance of creating safer workplaces, which aligns with SDG 8’s target of promoting inclusive and sustainable economic growth, employment, and decent work for all. Additionally, the article mentions the need for a more inclusive approach to address workplace harassment, which relates to SDG 10’s goal of reducing inequalities.

2. What specific targets under those SDGs can be identified based on the article’s content?

• SDG 5.1: End all forms of discrimination against all women and girls everywhere
• SDG 5.2: Eliminate all forms of violence against all women and girls in public and private spheres, including trafficking and sexual exploitation
• SDG 8.5: By 2030, achieve full and productive employment and decent work for all women and men, including for young people and persons with disabilities, and equal pay for work of equal value
• SDG 10.3: Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies, and practices and promoting appropriate legislation, policies, and action in this regard

The article highlights the need to address gender-based discrimination and harassment in the workplace, which aligns with SDG 5.1 and 5.2. It also emphasizes the importance of providing equal employment opportunities and decent work for all, which relates to SDG 8.5. Additionally, the article calls for the elimination of discriminatory laws and practices, which corresponds to SDG 10.3.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• Number of reported cases of sexual harassment and gender-based discrimination in the workplace
• Percentage of organizations implementing policies protecting employees against discrimination based on gender
• Number of organizations creating LGBTQIA+ friendly workplaces
• Existence of comprehensive legislation addressing gender-based discrimination beyond instances of a sexual nature

The article mentions the need for comprehensive legislation that addresses gender-based discrimination beyond instances of a sexual nature. The existence of such legislation can be used as an indicator to measure progress towards SDG targets. Additionally, the article discusses the implementation of policies protecting employees against discrimination and the creation of LGBTQIA+ friendly workplaces, which can also serve as indicators to assess progress towards the identified targets.

SDGs, Targets, and Indicators Table

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Fuente: law.asia

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