30 January, 2018
Widespread allegations of sexual harassment in the press and the international “#MeToo” social media campaign have thrown the issue of sexual harassment sharply into focus. This article looks at the recent case in which the High Court of Delhi dismissed a petition by an employee claiming that she had been the victim of sexual harassment in the workplace. The decision provides guidance as to what kind of conduct may amount to sexual harassment and follows the recent launch of an online portal that enables female employees to lodge complaints of sexual harassment.
Background
The case of Shanta Kumar vs Council of Scientific and Industrial Research and Others (MANU/DE/3392/2017) involved a petition by an employee who claimed that she had been sexually harassed by a fellow employee (Respondent) in April 2005. The employee alleged that the Respondent had entered the laboratory where she was working, snatched some samples from her and threw them to the ground. The Respondent then allegedly pushed the employee outside the laboratory and locked her out, all the while shouting and using derogatory language against her.
The basis of the employee’s sexual harassment claim was that, in the course of this outburst, the Respondent “held her hand” and “pushed her out of the laboratory”. The Internal Complaint Committee (ICC) which had initially examined the complaint accepted that the Respondent had held the employee’s arm in the course of the incident and that his use of derogatory language against her was deplorable. The ICC nonetheless concluded that the employee’s claim did not involve sexual harassment of any kind; rather, it involved an altercation that took place in the context of an uncongenial workplace environment. The ICC’s report was accepted by the Disciplinary Authority, which issued an order absolving the Respondent of sexual harassment.
The employee subsequently brought a petition before the High Court of Delhi challenging both the findings of the ICC and the order issued by the Disciplinary Authority.
The Decision
The High Court of Delhi ultimately dismissed the petition and the employee’s argument that any unwelcome physical contact would amount to sexual harassment. Like the ICC, the High Court found that even if it was accepted that the Respondent had held the employee’s arm, it did not necessarily follow that such conduct constituted sexual harassment. While the behaviour of the Respondent towards the employee may have been deplorable, his actions did not amount to sexual harassment.
Significantly, the High Court rejected the employee’s argument that any unwelcome physical contact would amount to sexual harassment. To amount to sexual harassment, physical contact must bear the character of “unwelcome sexually determined behaviour”. Mere accidental contact, even if unwelcome, would not therefore amount to sexual harassment. Likewise, physical contact that is not of a sexual nature and which is not occasioned by the gender of the complainant may not amount to sexual harassment.
Online Portal for Lodging Complaints
The High Court’s decision follows the Ministry of Women and Child Development’s recent launch of the Sexual Harassment electronic box in New Delhi. “SHe-Box” is an online portal that enables female employees in both public and private organisations to lodge complaints of sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013. It is the government’s hope that “SHe-Box”, by providing victims of sexual harassment in the workplace with a speedier avenue for redress, will help establish a safer and fairer working environment for women.
Key Takeaways
Given the increased focus on sexual harassment, employers consider whether their internal processes will effectively manage employee complaints and withstand scrutiny. Further, employers should ensure that relevant staff are equipped to appropriately respond to and investigate any complaints of sexual harassment in the workplace.
In particular, organisations operating in India should ensure compliance with the laws which require employers to take certain measures including:
- educating employees on sexual harassment including the complaints process and consequences;
- providing a grievance mechanism for victims of sexual harassment including through an Internal Complaints Committee (where applicable); and
- providing assistance to female employees who file a complaint in relation to sexual harassment.
Non-compliance with these obligations may result in significant fines and other penalties such as withdrawal of business licenses.
For further information, please contact:
Fatim Jumabhoy, Partner, Herbert Smith Freehills LLP
fatim.jumabhoy@hsf.com
