In a recent push for the PoSH Act, which is aimed at preventing sexual harassment of women in workplaces, the Madras High Court stated “action” mattered more than “intent” in such cases. This reading of the anti-harassment Act gives it more teeth. Among other things, it even said that insisting on handshakes could be seen as coercion and harassment. It emphasised that in PoSH cases, the standard of reasonableness would be of a reasonable woman and not of a reasonable man.
This emphasis on “action” came as the High Court quashed a Chennai labour court’s order which had overturned the findings of an internal committee by an HCL Technologies employee. Three women who he supervised had filed a complaint of sexual harassment against them, according to several reports.
The Sexual Harassment of Women at Workplace [Prevention, Prohibition and Redressal] Act or PoSH Act prevents and addresses sexual harassment complaints in the workplace. It was brought into force on December 9, 2013.
The emphasis on action and impact is important because intent is difficult to define and prove.
WHAT DID THE MADRAS HIGH COURT SAY ON POSH ACT?
The High Court stated how unwelcome behaviour in the workplace is sexual harassment.
“Unwelcome behaviour at the work place is sexual harassment irrespective of the harasser’s intent,” Justice RN Manjula stated, according to The Times of India. “If something is not received well, and it is inappropriate and felt as unwelcome behaviour affecting the other sex, namely the women, no doubt it would fall under the definition of sexual harassment,” the judge added.
In establishing clearly that it was the action and not the intent which matters, the court quoted a US Supreme Court judgment.
“In Joseph Oncale vs Sundowner Offshore Services, Inc.523 U.S. 75(1998), the U.S. Supreme Court has observed that in the matter of complaints given for sexual harassment in work places, the standard of reasonableness is not the standard of a reasonable man but the standard of reasonable woman,” the High Court said.
The definition of sexual harassment, according to the PoSH Act, gives more importance to the act than the intention behind it, said Justice Manjula.
“It is the fundamental discipline and understanding with which employees of different genders are expected to interact with each other where decency is the yardstick and nothing else. While speaking about decency, which the offender thinks within himself but how he makes the other gender feel about his actions,” Justice Manjula said.
What is of the utmost importance is that the standard of reasonableness would be of a reasonable woman and not of a reasonable man.
These observations were made as the order of the labour court was quashed, which had overturned the hearing of the Internal Complaints Committee (ICC) of HCL Technologies passed against its senior employee.
‘NO MISUNDERSTANDING IN THE MIND OF THE COMPLAINANT,’ STATED HC
Three women employees who worked under the person had filed complaints with ICC stating he abused his supervisory role and harassed them by standing closely while they worked, touched their shoulders, insisted on handshakes and asked an employee about their menstrual cycle, according to The Times of India report.
At one point, he also asked a complainant to remove her jacket to give measurements for a jacket which all employees had to wear. This was after the woman had already said the measurement in centimetres in which she wanted the coat, according to a report by The New Indian Express.
The senior employee stated he used to monitor their work without disturbing them. He denied any intent to sexually harass them. He further said he had asked for CCTV footage and the ICC had denied access to the same.
This denial of the footage was interpreted as the ICC’s denial of a fair chance to this man.
In its appeal to the High Court, HCL had stated that the man asked for the footage a year later in 2019, when he had been removed from the company.
HCL stated it had conducted the investigations following the provisions of the PoSH act.
“It has already been stated that the respondent’s act has caused a feeling of embarrassment and discomfort in the minds of complainants. The respondent did not deny the fact that he was standing near the complainant but had justified that it was his duty to supervise the works of the complainant. So, the CCTV footage and the visuals cannot help him to prove or disprove the intention. All that can be understood is how it was felt by the recipients who are the complainants,” the High Court said, according to the Bar and Bench report.
The High Court added that there did not seem to be any misunderstanding in the minds of the complainant.
The emphasis on the act itself, and not the intention and reasonableness of women over men’s by the court has given teeth to the PoSH Act that aims to prevent sexual harassment in the workplace.