De-gendering Workplace Sexual Harassment

By Shreyas Sinha

Introduction

It has been 27 years since the Indian Supreme Court’s judgement in Vishaka v. State of Rajasthan [1] and 11 years since the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (‘POSH Act’). However, workplace sexual harassment mitigation (‘WSH’) remains marred by several failures, both in terms of legal implementation and coverage or scope, to date.[2]

Most scholarship on WSH law reform tends to focus on bettering implementation, particularly that of the POSH Act.[3] However, an emphasis on implementation alone misses out on accounting for legal reform oriented towards safeguarding other vulnerable groups such as the LGBTQIA+ community.[4] There is a gap in the literature with respect to addressing this scope inadequacy, that I attempt to address in this paper.

I argue that the POSH Act’s current policy rationale is articulated in terms of providing protection to cis-gender women vis-à-vis WSH. This framing means that the law only accounts for a particular manifestation of gendered violence at the workplace and fails to protect other vulnerable groups that face sexual harassment or even cis-gender men who may (and do) face sexual harassment. This is antithetical to the principle of equality and ends up reinforcing restrictive gender norms (e.g., the man/woman binary).

As an alternative, I propose an amendment to the POSH Act to make it gender neutral and address the related scope inadequacy problem. I justify this by relying on civic republican theory, which conceptualises the purpose of employment laws (such as anti-WSH laws) in terms of preventing the domination of one individual by another (the ‘non-domination principle’). I rely, principally, on the theoretical frameworks proposed by Philip Pettit and Frank Lovett to demonstrate how a civic republican understanding provides a better account of anti-WSH law that addresses the scope inadequacy problem.

Part I of this essay introduced this problem and highlighted my primary thesis. Part II looks at the current position of Indian law on the matter and mounts a two-pronged critique of the same; based on empirical and normative work by scholars across different jurisdictions. Part III explicates the theoretical framework, drawn from writings by Pettit and Lovett, that I use to argue in favour of gender neutrality. Part IV addresses possible objections from gender-critical feminism (or, trans-exclusionary radical feminism). Part V concludes.

Current Law and Unaccounted Experiences: A Critique

The first major judicial engagement with the question of WSH, i.e., the Vishaka case, problematised the issue in gendered terms.[5] The POSH Act, India’s principal WSH legislation, followed in similar stead. The statute’s scope of protection is restricted to women alone.[6] While non-cisgender women are, as a matter of statutory text, not precluded from seeking remedy under the POSH Act, in practice, there is a lack of clarity on that point.[7]

Bad Policy Leads to…

The rationale behind a narrow, gendered articulation of sexual harassment was articulated as: (1) women were intrinsically disadvantaged vis-à-vis men in Indian society; and (2) anti-WSH legislation was, in essence, an affirmative action measure under Article 15(3) of the Indian Constitution to combat this disadvantage.[8] This reasoning has been adopted and reiterated by constitutional courts as well.[9] In terms of theoretical frames, this understanding is in line with the sociocultural model of sexual harassment that conceptualises men as sexual agents and women as sexual objects, with acts of harassment being products of these role assignments.[10]

What is noteworthy, however, is that the Indian Government’s policy rationale behind the statute was not informed by any empirical data on workplace sexual harassment.[11] Instead, it was based on a static understanding of gender roles and of anti-WSH laws as a means of addressing a specific manifestation of the power imbalance arising out of such roles. This, by necessary implication, means that the legal policy does not account for other manifestations of WSH.

…Bad Outcomes

There is a significant body of scholarly literature that documents sexual harassment faced by persons other than women. For instance, sexual harassment faced by men, perpetrated either by other men or by women, remains vastly underreported.[12] Despite this, multiple studies, across different jurisdictions, confirm that men constitute a considerable number of WSH complainants.[13] Moreover, a cis-heteronormative construction of masculinity often exposes men who face sexual harassment to unique stigmatisation and disbelief by their peers, something that is not faced as much by women.[14] This precludes men from seeking institutional redressal. Further, as feminist scholars highlight, socio-cultural and institutional neglect towards sexual harassment faced by men has the effect of ‘feminising’ them and, in effect, reinforcing patriarchal, restrictive gender norms.[15]

While there is a lack of sound empirical data on sexual harassment reporting amongst men in the Indian context, studies vis-à-vis comparator Global South jurisdictions clarify the extent of the problem and how different social contexts may worsen the same. For example, scholars highlight that, in postcolonial contexts such as South Africa, the socio-cultural invisibilisation of men, who are victims of sexual harassment, often carries stereotypical undertones with respect to identity markers such as race.[16] It is not hard to analogise this scenario to the Indian context where Dalit men may be victimised with respect to WSH on account of their caste identity.

Similarly, scholarship notes that sexual minorities, such as queer men or transgender persons, are at a higher risk of facing sexual harassment than others, including increased risk of aggressive sexual assault.[17] Research also demonstrates that this risk is exacerbated when sexual orientation intersects with other marginalised markers such as race.[18] Queer men particularly, when facing sexual violence, experience unique difficulties with respect to seeking redress due to immense stigmatisation and shame.[19]

The POSH Act does not manage to include these experiences within its scope. What the POSH Act does, with its conceptualisation of a victim-woman and a perpetrator-man, is provide legal redressal for a specific sub-type of sexual harassment. Consequently, it misses out on providing redressal for a whole range of sexual harassment instances. Furthermore, it stereotypes women as perennial victims and men as perennial perpetrators.[20] This sociocultural understanding of sexual harassment reinforces patriarchal gender norms that devalue the agency of women and construct men as ‘hypermasculine’ and ‘hypersexed’.

The POSH Act also sits in disharmony with other anti-sexual harassment regulations in India and with changes in international legal frameworks. For example, it is telling that the University Grants Commission, the principal regulator of higher education institutions (‘HEIs’) in India, regulates sexual harassment at Indian HEIs in a gender-neutral manner through subordinate legislation framed under the University Grants Commission Act, 1956.[21] Furthermore, the POSH Act is discordant with developments in international labour law, such as the International Labour Organization’s Violence and Harassment Convention, 2019 (No. 190), which takes a gender-neutral approach towards sexual harassment.[22] The ILO’s approach underscores that workplace sexual harassment is essentially a question of power and not the gender of the perpetrator or the victim per se.[23]

A better alternative would be to understand workplace sexual harassment in terms of power or domination, irrespective of the gender of the victim or the perpetrator in any one instance. Indeed, American radical feminists, who brought the issue of workplace sexual harassment to the forefront, have characterised the problem as fundamentally one of power.[24] A power-based framework would allow the law to account for all instances of sexual harassment and target the root of gender-based violence at the workplace.

The Answer from Non-Domination: Republican Theory and Workplace Sexual Harassment

We need a better account of the rationale for WSH legislation if we are to justify a move to a gender-neutral anti-WSH legal regime. This account must target the root power differential that motivates each individual act of sexual harassment.

An Introduction to Republican Labour Law

Civic republican political theory provides a helpful answer in terms of the non-domination principle. According to Pettit, the goal of the state in a just and democratic society is to guarantee freedom in terms of non-domination, i.e., the state must ensure that its laws restrict both itself and other citizens from subordinating an individual in any given context.[25] The non-domination principle operates vertically and horizontally to guarantee freedom from subordination. In Pettit’s framework, this takes the form of legislation providing for entitlements that allow citizens to contest domination.[26]

While Pettit grounds the non-domination principle in terms of liberty, Lovett articulates the same in terms of social justice. According to him, the non-domination principle requires state intervention to secure substantive social justice in citizen-to-citizen and state-to-citizen relationships.[27] In his model, this takes the form of accounting for three social phenomena with respect to any relationship: (1) dependency; (2) imbalance of power; and (3) arbitrariness.[28] Thus, the goal of the state is to intervene in situations where A suffers vis-à-vis B due to any one or all of these three factors.

Scholars have successfully extended civic republican frameworks to the entire schema of labour laws (of which workplace sexual harassment legislation is a key part).[29] There are points of divergence between the articulations of the non-domination principle by Pettit and Lovett.[30] However, at a general level, a blended Pettit-Lovett framework, in the context of labour law, requires that legal regimes address employer-employee or employee-employee domination, marked by dependency, power imbalance, or arbitrariness, either through direct state intervention or though provision of entitlements that allow employee contestation.[31]

WSH Law as Non-Domination

Extended to WSH law, e.g., the POSH Act, a civic republican framework solves the scope inadequacy problem highlighted in Part II. It requires that the policy rationale underlying the law move beyond a static understanding of gendered power to attacking domination in all forms. This, by necessary implication, means that WSH legislation be neutral to the gender of both the victim and the perpetrator. At a more abstract level, a non-domination principle-based approach to WSH legislation also allows policymakers to account for the intersectionality underpinning acts of sexual harassment.[32] That is, a non-domination framework allows the law to target multiple axes of discrimination beyond the gender of the victim alone.

Finally, a non-domination approach towards WSH accounts for the shift in Indian equality jurisprudence towards addressing both vertical (state-citizen) and horizontal (citizen-citizen) discrimination, particularly for marginalised groups such as the LGBTQIA+ community.[33] It also moves the Indian legal framework in line with a progressive global shift towards gender neutrality vis-à-vis WSH.[34]

The Objection from Gender-Critical/Trans-Exclusionary (Radical) Feminism: Debunking Myths

A recasting of WSH in terms of power and domination sans gender draws an objection from gender-critical feminism (or, trans-exclusionary radical feminism). While there has been substantial engagement with (and debunking of) gender-critical or trans-exclusionary feminism,[35] for my argument to stand, it is necessary to engage with gender-critical objections at their strongest. For my purposes, I use ‘gender-critical feminism’ and ‘trans-exclusionary radical feminism’ interchangeably considering that scholarship has often classified the former term as a dog-whistle for trans-exclusionary radical feminists.[36] Furthermore, I do not attempt to make a distinction between gender-critical feminism’s take on gender-neutral WSH legislation vis-à-vis men and vis-à-vis transgender persons as the core objections, in my view, remain the same.

Gender-critical feminism embodies sex-essentialism. According to its proponents, gender norms (which are social norms) are intrinsically tied to biological sex, which is immutable. For gender-critical feminism, biological sex forms the principal axis of oppression of women because it dictates what gender norms are imposed. Thus, ‘females’ are deemed deserving of special protections on the basis of sex identity alone, to the exclusion of protections for other groups such as males or transgender persons.[37] In practical terms, gender-critical feminism demands women/female-only spaces, affirmative action measures for women/females, and special laws (e.g., the POSH Act).

Gender-critical feminism is naturally trans-exclusionary, hence the moniker of ‘trans-exclusionary radical feminism’. It labels ‘transgenderism’ as a social construction. It argues that the incorporation of legal protections and entitlements for transgender persons into the law (e.g., allowing transgender men to claim remedy for WSH) instantiate ideas harmful to women. It also argues that men use transgenderism as a surreptitious way to violate women’s spaces.[38]

Therefore, a gender-critical feminist objection to the argument in favour of making workplace sexual harassment laws gender neutral would mirror the Indian Government’s rationale for the POSH Act: since women report the overwhelming majority of WSH complaints and since women have a power imbalance vis-à-vis men (which is a product of their immutable biological sex), WSH legislation ought to remain gendered in favour of women. Making WSH law gender-neutral runs the risk of allowing the patriarchy to co-opt a beneficial legal regime created for women.[39]

This objection, and the rationale underlying it, are untenable and plain wrong.

For starters, as I demonstrated in Part II, there is a significant body of empirical literature from across jurisdictions that shows that, despite significant underreporting, there is data showing considerable instances of WSH vis-à-vis men and members of the LGBTQIA+ community. Furthermore, there are sound scholarly studies that demonstrate an increased predisposition towards WSH for transgender persons.

Second, the idea of sex as an immutable characteristic underpinning gender norms and, therefore, being the principal axis of discrimination is demonstrably wrong. Natural science has confirmed that both gender and sex are social constructs.[40] Furthermore, empirical research and intersectionality scholarship confirm that sex/gender is not the sole determinative factor with respect to sexual harassment.

Third, as has been argued in the context of rape law reform, arguments in the nature of gender-critical feminism’s objection to gender neutrality lack evidential support and demonstrate an inadequate understanding of sexual victimisation vis-à-vis men or transgender persons.[41] Far from precluding a gendered understanding of WSH, gender neutrality would only extend legal protection to sufferers of sexual violence beyond women.

Fourth, the civic republican rationale that I have proposed for WSH legislation does not take away from a legal redressal of the abuse originating out of power imbalances between women and men. In fact, it addresses all instances of domination and, in doing so, precludes the reinforcement of stereotypical gender norms and the continued discrimination against transgender persons. A gendered approach demonstrably entrenches harmful stereotypes, including the man/woman binary. In fact, that is one of the central criticisms of the Convention on the Elimination of All Forms of Discrimination Against Women, the primary (gendered) international law instrument on discrimination against women.[42]

Therefore, the gender-critical feminist objection to making WSH laws gender neutral is neither empirically nor normatively sound. It is based on outmoded assumptions with respect to men and women, and the nature of sexual harassment.

Conclusion

In conclusion, I have demonstrated that the WSH regime set out by the POSH Act suffers from a scope inadequacy problem. As an empirical matter, it fails to account for the sexual harassment faced by persons other than women. As a normative matter, this scope inadequacy is based on an inadequate understanding of the rationale for legislation against workplace sexual harassment.

A civic republican understanding of WSH legislation, that targets domination regardless of gender, addresses this scope inadequacy problem and provides a powerful justification for making the POSH Act gender neutral. At the same time, empirical data and the civic republican framework also meet the challenge posed by gender-critical feminism to gender neutrality.

The author, Shreyas Sinha, is an undergraduate law student at the National Law School of India University (NLSIU), Bengaluru.

---

[1] AIR 1997 SC 3011 : MANU/SC/0786/1997 (Supreme Court of India).

[2] See, Paramita Chaudhuri, ‘Sexual Harassment at the Workplace: Experiences with Complaints Committees’ (2008) 43(17) Economic & Political Weekly 99; Jessamine Mathew, ‘Do Courts Rely on Stereotypes Instead of Legal Frameworks in Cases of Sexual Harassment?’ (2019) 54(44) Economic & Political Weekly <www.epw.in/engage/article/do-courts-rely-stereotypes-instead-legal> accessed 3 April 2024.

[3] Sharvari Kothawade, ‘Sexual Harassment at the Workplace: What Kind of Change Do Internal Commitees Need?’ (2019) 54(35) Economic & Political Weekly <www.epw.in/engage/article/sexual-harassment-workplace-what-kind-change-do> accessed 3 April 2024.

[4] Rehan Mathur, ‘Analysing the Inclusion of Queer Identities in Indian Anti-Sexual Harassment Law’ (Law School Policy Review & Kautilya Society, 23 February 2023) <https://lawschoolpolicyreview.com/2023/02/23/analysing-the-inclusion-of-queer-identities-in-indian-anti-sexual-harassment-law/&gt; accessed 3 April 2024; Vedika Chawla, ‘Protecting the queer community from sexual harassment’ (The Leaflet, 6 September 2022) <https://theleaflet.in/protecting-the-queer-community-from-sexual-harassment/&gt; accessed 3 April 2024.

[5] Vishaka (n 1) [7].

[6] The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013, s 3; The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules 2013, r 6; Ministry of Women and Child Development, Government of India, Handbook on Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (November 2015) 7.

[7] Adab Singh Kapoor, ‘POSH Act: Discussing Gender Neutrality, Transgender Rights & Inclusion of LGBTQ’ (LiveLaw.in, 6 June 2020) <www.livelaw.in/columns/posh-act-discussing-gender-neutrality-transgender-rights-inclusion-of-lgbtq-157906?from-login=646971> accessed 17 April 2024; Shivangi Prasad, ‘Transgender Persons (Protection of Rights) Act, 2019 and POSH Act: A Comparison’ (POSH at Work, 11 October 2021) <https://poshatwork.com/transgender-persons-protection-of-rights-act-2019-and-posh-act-a-comparison/&gt; accessed 17 April 2024.

[8] Department-related Parliamentary Standing Committee on Human Resource Development, Two Hundred Thirty-Ninth Report on The Protection of Women Against Sexual Harassment at Workplace Bill, 2010 (8 December 2011) paras 3.2-3.5 <https://prsindia.org/files/bills_acts/bills_parliament/2010/SCR_Protection_of_Women.pdf&gt; accessed 17 April 2024 (‘Standing Committee Report’).

[9] For example, see, Binu Tamta v High Court of Delhi (2023) MANU/SCOR/143038/2023 (Supreme Court of India); Punjab and Sind Bank v Durgesh Kuwar (2020) MANU/SC/0316/2020 : 2020 INSC 225 [20] (Supreme Court of India).

[10] Paula McDonald, ‘Workplace Sexual Harassment 30 Years on: A Review of the Literature’ (2012) 14(1) International Journal of Management Reviews 1, 6.

[11] Standing Committee Report (n 8) para 3.3.

[12] See, Jane Meyrick, #MeToo for Women and Men: Understanding Power through Sexual Harassment (Routledge 2022) 29.

[13] Sandra L Fielden and Carianne Hunt, ‘Sexual Harassment in the Workplace’ in Savita Kumra, Ruth Simpson, and Ronald J Burke (eds), The Oxford Handbook of Gender in Organizations (OUP 2014); Paula McDonald and Sara Charlesworth, ‘Workplace sexual harassment at the margins’ (2016) 30(1) Work, Employment and Society 1.

[14] Brian Cesario, ‘Attitudes about victims of workplace sexual harassment based on sex’ (2020) 1 Current Research in Behavioral Sciences 100006.

[15] Deborah Lee, ‘Hegemonic Masculinity and Male Feminisation: the sexual harassment of men at work’ (2000) 9(2) Journal of Gender Studies 141, 153.

[16] Louise du Toit, ‘Contesting the meaning/s of sexual violence in the South African postcolony: where are the male victims?’ in Nicky Falkof, Shilpa Phadke, and Srila Roy (eds), Intimacy and injury: In the wake of #MeToo in India and South Africa (Manchester University Press 2022).

[17] Davey M Smith, Nicole E Johns, and Anita Raj, ‘Do Sexual Minorities Face Greater Risk for Sexual Harassment, Ever and at School, in Adolescence?: Findings From a 2019 Cross-Sectional Study of U.S. Adults’ (2020) 37(3-4) Journal of Interpersonal Violence 1.

[18] Darren L Whitfield and others, ‘The Crossroads of Identities: Predictors of Harassment Among Lesbian, Gay, Bisexual, and Queer Adults’ (2019) 10(2) Journal of the Society for Social Work and Research 237.

[19] Jamil F Khan, ‘Reflection: ‘Gay boys don’t cry when we’re raped’ – queer shame and secrecy’ in Falkof, Phadke, and Roy (eds) (n 16).

[20] For instance, take a look at the Handbook on the statute issued by the Ministry of Women and Child Development, Government of India. Illustrations and examples used in the Handbook stereotypes women as victims and men as perpetrators of sexual harassment. See, Ministry of Women and Child Development (n 6) 7.

[21] See, the University Grants Commission (Prevention, Prohibition, and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015, reg 3(1)(d).

[22] Violence and Harassment Convention 2019, art 1(1)(b) <www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190> accessed 17 April 2024.

[23] See, Eric Stenor Carlson, ‘The International Labour Organization’s Innovative Approach to Ending Gender-Based Violence and Harassment: Toward a New International Framework for the World of Work’ (2018) 33(2) ABA Journal of Labor and Employment Law 163, 169.

[24] Catharine A MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (Yale University Press 1979) 1-2.

[25] Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 69-74.

[26] ibid.

[27] Frank Lovett, A General Theory of Domination and Justice (OUP 2010) 9, 173.

[28] ibid 119.

[29] See, David Cabrelli and Rebecca Zahn, ‘Civic Republican Political Theory and Labour Law’ in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds), Philosophical Foundations of Labour Law (OUP 2018); Guy Davidov, A Purposive Approach to Labour Law (OUP 2018) 39, 57.

[30] ibid.

[31] At this juncture, one may raise the question as to why a civic republican justification for labour law is a better account than other theories. This is a valid question that Cabrelli and Zahn address in-depth. For constraint of space, I have not reproduced their arguments. See, Cabrelli and Zahn (n 29).

[32] For an account of how intersectionality factors into workplace sexual harassment, see, Kimberle Crenshaw, ‘Race, Gender, and Sexual Harassment’ (1992) 65(3) Southern California Law Review 1467; see also, Patricia Hill Collins and Valerie Chepp, ‘Intersectionality’ in Georgina Waylen and others (eds), The Oxford Handbook of Gender and Politics (OUP 2013).

[33] See generally, National Legal Services Authority v Union of India (2014) MANU/SC/0309/2014 : 2014 INSC 275 (Supreme Court of India); Navtej Singh Johar v Union of India (2018) MANU/SC/0947/2018 : 2018 INSC 790 (Supreme Court of India); Gauri Pillai, ‘Naz to Navtej: Navigating Notions of Equality’ (2019) 12(3-4) NUJS Law Review 359.

[34] Jody Heymann and others, ‘Progress Towards Ending Sexual Harassment at Work? A Comparison of Sexual Harassment Policy in 192 Countries’ (2023) 25(2) Journal of Comparative Policy Analysis: Research and Practice 172, 183.

[35] For example, see, Charlotte Proudman, ‘Being a radical feminist means being a trans ally at the same time’ The Independent (28 July 2022) <www.independent.co.uk/voices/terf-trans-feminism-gender-b2131456.html> accessed 17 April 2024.

[36] Claire Thurlow, ‘From TERF to gender critical: A telling genealogy?’ (2022) Sexualities <https://journals.sagepub.com/doi/10.1177/13634607221107827&gt; accessed 17 April 2024.

[37] Holly Lawford-Smith, Gender-Critical Feminism (OUP 2022) 48.

[38] Sheila Jeffreys, Gender Hurts: A feminist analysis of the politics of transgenderism (Routledge 2014) 2, 14-23.

[39] Similar arguments have been made in the context of gender neutrality vis-à-vis rape law. See, Flavia Agnes, ‘Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law’ (2002) 37(9) Economic and Political Weekly 844; Patricia Novotny, ‘Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance?’ (2002) 1(3) Seattle Journal for Social Justice 743.

[40] Henry F Fradella, ‘The Imperative of Rejecting “Gender-Critical” Feminism in the Law’ (2024) 30(2) William & Mary Journal of Race, Gender, and Social Justice (forthcoming) <http://dx.doi.org/10.2139/ssrn.4419750&gt; accessed 17 April 2024.

[41] See, Philip NS Rumney, ‘In Defence of Gender Neutrality Within Rape’ (2007) 6(1) Seattle Journal for Social Justice 481.

[42] See, Darren Rosenblum, ‘Unsex CEDAW, or What’s Wrong With Women’s Rights’ (2011) 20(2) Columbia Journal of Gender & Law 98; Simone Cusack, ‘The CEDAW as a legal framework for transnational discourses on gender stereotyping’ in Anne Hellum and Henriette Sinding Aasen (eds), Women’s Human Rights: CEDAW in International, Regional, and National Law (CUP 2013).