This Article is Written by Aparna Gupta, Intern under Legal Vidhiya
Sexual Harassment at workplace is an issue of grave concern affecting mental well-being and professional capacity of an employee. It affects the mental and physical health of a worker and is usually hard to report, if the harassment is by a superior. Many times, upon receiving a report/complaint the management turns hostile towards the complainant.
Sexual harassment includes not just an unwanted physical move made by a co-worker, it includes making sexual coloured remarks, showing porn, and teasing, it could also be asking for sexual favours in return of some benefit like promotion, bonus, etc. Sexual harassment could be done even on phone like sending unwanted photos, sending sexually coloured mails and text messages. It is the duty of the employers to prevent such harassment and to provide a safe working space to the employees.
In India, to combat with Workplace Harassment we have Prevention of Sexual Harassment at Workplace Act, 2013 which was enacted after the landmark case of Vishaka v. State of Rajasthan[1]. The POSH Act, 2013 has been useful in many ways like providing a legal mechanism increasing the number of reports, making the workplaces safer for women. However, there are also certain loopholes such as that the Act is not gender neutral, the limitation period is only 6 months, and so on.
Let us now understand and analyse Workplace Harassment Laws in United Kingdom and United States.
Workplace Sexual Harassment Laws in United Kingdom
In the United Kingdom, there is no specific Act addressing sexual harassment at workplace exclusively. They have Section 26 of the Equality Act, 2010 which helps to deal with the same.
Section 26, Equality Act, 2010 defines Sexual Harassment as a conduct that is unwanted and is sexual in nature, like making sexually coloured remarks about a co-worker’s age, disability, sexual orientation, race etc., treating one person not so favourably after they have refused to engage in any sexual conduct, or any other activity that has the effect of degrading one’s dignity or creating an unsafe, hostile working environment for another.
Section 26, Equality Act, 2010(hereafter EA,2010) reads as follows:
“26. Harassment
(1)A person (A) harasses another (B) if—
(a)A engages in unwanted conduct related to a relevant protected characteristic, and
(b)the conduct has the purpose or effect of—
(i)violating B’s dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(2)A also harasses B if—
(a)A engages in unwanted conduct of a sexual nature, and
(b)the conduct has the purpose or effect referred to in subsection (1)(b).
(3) A also harasses B if—
(a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex,
(b)the conduct has the purpose or effect referred to in subsection (1)(b), and
(c)because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—
(a)the perception of B;
(b)the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.
(5) The relevant protected characteristics are—
- age;
- disability;
- gender reassignment;
- race;
- religion or belief;
- sex;
- sexual orientation.”
The Act makes retaliation by the employer or superior in lieu of the complaint, a crime of sexual harassment. It adds on to the existing complaint and hence, tries to protect the complainant from losing their jobs or promotion or any other benefit. The section is very gender-neutral in its approach and applies to all the genders (including LGBTQIA+), unlike the Indian POSH Act.
Who does the section apply to?
As per Sec. 40 of EA 2010, the term “employee” relating to harassment cases includes those are employed and those who have applied for the same. Here, the Section seems to provide protection to the furthest range of people possible, and must be appreciated.
Liability of the Employer
Under Sec. 109 of EA ,2010, an offence committed by the employee is like an offence committed by the Employer. Thus, this provides for vicarious liability of the employer. It is the duty of the employer to take actions to prevent such incidents from happening and if such incidents occur, take proper actions to deal with the same.
The catch here is that the employer can only be held for acts committed “in the course of employment” and cannot be held liable he/she takes enough measures to prevent occurrences of that sort (all reasonable care).
“Course of Employment”
In Chief Constable of Lincolnshire Police v. Stubbs[2], a female police officer was sexually harassed by other police officers in an after-work party. The female police officer filed a suit against the employers. The employers claimed that this was not in the “due course of employment” and were committed at a place away from the police station and hence not liable for the same. The Employment Appeals Tribunal (EAT) held that the after-work party which was an unofficial gathering of police officers is an extension of the workplace and therefore, the employers were liable.
In Livesey v. Parker Merchanting Ltd.[3], the female employee was harassed before at workplace and once after the Christmas party on her way back home. The EAT held that this constituted an act committed in the “course of employment” and the employer was held vicariously liable.
All reasonable care
The Act allows for employers to avoid vicarious liability upon showing that all reasonable measures were taken to prevent sexual harassment at workplace. Usually, it includes Employment Training on Equality, informing new entrants about their rights and redressal mechanism, having a committee to address sexual harassment cases and so on. If the employer has taken enough measures to prevent such an occurrence, he can absolve himself of the liability.
In Croft v. Royal Mail Group[4], there was an employee who was waiting to undergo an operation to identify as a woman afterwards. The employer helped her to undergo the gender change by changing her records and notifying other employees to address her with the pronouns of a woman. They also emphasised on sexual harassment policy of the company. The employee filed a complaint that she was still addressed as “he/him” and had to use the toilet for the disabled, as the female employees were uncomfortable sharing the women’s bathroom with her. The EAT held that the employer had taken reasonable steps to prevent such sexual discrimination and was, therefore, not liable.
In Allay v. Gehlen, the employer had provided “training” to employees, years before the racial discrimination incident took place. The EAT held that such old training does not constitute as a reasonable measure, something must be done to refresh the training.
Efficiency of the Law:
According to one research conducted by Trades Union Congress in 2016, 52% women have faced sexual harassment at workplace. In the 2020 Sexual Harassment Survey, it was found that 72% of the population in UK had experienced sexual harassment and only 33% of them formally reported the same.
When we talk about its efficiency, the condition is not very different from India.
- A lot of cases still go unreported.
- The complainants have been treated unfavourably post such complaint.
- The limitation period is only 3 months from the date of the incident.
- The acts committed by the clients or customers are uncovered.
- The Act is quite general in dealing with harassment. There is no specific Act addressing the same issue.
On the bright side, the Act is gender-neutral. It deals with harassment of all forms, not just sexual harassment. After, the #Metoo Movement, a lot of cases have begun to be reported. Additionally, the UK Government has the Worker Protection (Amendment of Equality Act 2010) Bill, 2022 waiting to be passed. The bill contains provisions to make the employer liable for the acts committed by third parties (like clients), extending the limitation period to 6 months. The amending Act will overcome the paucities of the old Act and provide better safety at workplace.
Workplace Sexual Harassment Laws in United States of America
The US Law recognises two types of harassment –
- Quid pro quo Harassment
- Hostile working environment
‘Quid pro quo’ is a Latin maxim meaning something for something. So, it is a type of harassment where the complainant is asked to do sexual favours for some benefit (like promotion, bonus, higher salary etc.). Hostile working environment is where the complainant faces backlash, hostility from the superiors, not getting called for team meetings that they were previously called to. Title VII of the Civil Rights Act, 1964 protects employees from any sort of discrimination based on sex or gender identity at the workplace.
In the landmark judgement of Bostock v. Clayton County[5], the US SC held that firing an employee who joined gay softball league citing that their conduct is “unbecoming of an employee” was a discriminatory practice and thus, ruled out that Title VII of Civil Rights Act, 1964 protects even LGBT people from discrimination at workplace. The sex of a person should not be the only cause of him/her/them getting fired.
Title VII of Civil Rights Act, 1964:
- Makes it mandatory for Employers to have a staff training on employee harassment when they first join and every two years thereafter, especially in the States of Chicago, Illinois and New York.
- Forceful Arbitration of a case of Workplace harassment is not valid; even if the case has been referred to arbitration, the case will always be dealt by the EEOC. This was held in the case of EEOC v. Waffle House[6]. Here, the employment contract stated that all employment-related disputes will be resolved through arbitration. But the SC held that EEOC has power to deal with cases relating to relief to the aggrieved employee such as backpay, damages.
- It also nullified contracts of employment having non-disclosure agreements to safeguard the reputation of the accused.
- Also bans retaliation by the higher authorities or co-workers against the complainant employee.
- As per the 1991 Amendment, the victims can claim monetary compensation in such cases.
Efficiency of the law
- Between the years 2018 and 2022, the US Equal Employment Opportunity Committee (EEOC) registered 98,411 complaints of workplace harassment. Additionally, there were 27,291 cases of workplace sexual harassment. The numbers though huge in number, do not reflect the truth of the workplace environment in USA as 90% of such cases go unreported[7].
- The Civil Rights Act,1964 applies only to those offices having more than 15 employees. So, the smaller offices are excluded from following these rules.
- The limitation period to bring a suit is sometimes as less as 180 days.
- The Act covers only “employees”; independent contractors, freelancers, etc. are excluded.
Thus, it can be concluded that although the laws are strict in nature, their enforcement is still a hurdle. When many of the cases go unreported, the efficiency of the laws can be easily fathomed. The EEOC is trying to resolve as many issues as possible and provide relief to the victims. Hopefully, in the future like UK, there will be laws addressing the issue of workplace harassment of third parties towards the employees.
CONCLUSION
The problem of majority of the cases being unreported is a universal problem. Steps must be taken to increase the reported number of cases. The statistical data mentioned in the article are from reports after the #METOO Movement, despite which many cases still go unreported. It is worthy of being appreciated that the Law in UK and US is gender-neutral. The relevance and the need for these laws cannot be denied, although there are a few loopholes. The Governments of both the countries are working to overcome their barriers and towards providing a safer working space to everybody.
REFERENCES:
- Sexual Harassment at Workplace Law in U.K, Available at https://poshatwork.com/sexual-harassment-at-workplace-law-in-u-k/
- UK Sexual Harassment Laws for The Workplace, available at https://www.easyllama.com/blog/uk-sexual-harassment-laws/
- What does UK law say about sexual harassment in the workplace? available at https://blog.oup.com/2022/05/what-does-uk-law-say-about-sexual-harassment-in-the-workplace/
- Sexual Harassment, available at https://www.acas.org.uk/sexual-harassment#:~:text=The%20Equality%20Act%202010%20protects,to%20personally%20do%20the%20work
- Overview of US Sexual Harassment law, Available at http://executive.law.berkeley.edu/wp-content/uploads/2018/05/US-Sexual-Harassment-Law.pdf
- Federal Sexual Harassment Laws, Available at: https://www.newyorkcitydiscriminationlawyer.com/federal-sexual-harassment-laws/
- Sexual harassment in the workplace in the United States, https://en.wikipedia.org/wiki/Sexual_harassment_in_the_workplace_in_the_United_States
[1] Vishaka and Ors. V. State of Rajasthan, AIR 1997 SC 3011
[2] Chief Constable of the Lincolnshire Police v. Stubbs, (1999) IRLR 81
[3] Livesey v. Parker Merchanting Ltd, (2004) All ER (D) 27 (Jan)
[4] Croft v. Royal Mail Group, (2003) IRLR 592
[5] Bostock v. Clayton County, 2020 U.S. LEXIS 3252
[6] EEOC v. Waffle House, Inc., 534 U.S. 279 (2002)
[7] Lilia M. Cortina and Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, 1 The Sage Handbook of Organizational Behaviour 469, 469-96 (J. Barling & C. L. Cooper eds., 2008).
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