India is exponentially advancing towards developmental goals. The presence of women can be seen in every sector of the workforce and about 39 million women are working in India[1]. But, in this patriarchal society where the ideology of male superiority is strong, emphasizing dominance, physical strength, and male honor, sexual violence in any form becomes an opted mode of suppressing women[2]. One such form of suppression is sexual harassment at the workplace which is extensively addressed in many academic papers and books. However, the suppression of victims post-reporting by retaliatory actions such as demotion, isolation from company activities, illegal transfers, etc., which are not in sexual nature is not delved deeply into as an existing problem that is harming the safety in the workplace and making women suffer silently. This aspect of the victimization of women post-reporting shall be covered extensively in my paper.
The Victims of Sexual harassment face harmful effects, due to the power dynamics existing in the hands of the perpetrator. The accused acts beyond harassing a woman, making her feel vulnerable and believe that her job is extremely difficult, further making her hesitant to report the matters to the authorities. Victimization strikes at the economic self-sufficiency of women, disrupting their earning capacity which negatively impacts other working women by forcing them to think twice before they report the sexual harassment complaint. For every woman who raises an outcry, there are a hundred others who suffer Sexual Harassment at the workplace in silence without reporting due to the fear of retaliation. The paper shall focus on those ‘silent’ women from various sectors within India who face retaliatory actions post-reporting and suggest measures to be undertaken to protect the complainants or witnesses from being victimized or treated unfairly because ‘Unnamed should not be mistaken for the non-existence and this silence speaks of pain and degradation’ and not of absence’[3]
The paper is designed to address the loophole in the Act[4], for protecting the complainants or witnesses post-reporting which is resulting in underreporting of Sexual Harassment complaints. Towards analyzing the necessity of protecting victims, the paper shall first, establish the existence of retaliatory actions against complainants or witnesses post-reporting and the need for social and organizational support for victims, relying on the survey reports and documented instances taken from already established empirical studies. Secondly, analyse the judicial pronouncements dealing with retaliatory actions against complainants and drawbacks in the existing legal framework. Thirdly, conclude by suggesting measures to be undertaken by the organization to protect the complainants or witnesses from being victimized, which shall encourage women to report sexual harassment complaints and increase the number of women in the workforce by providing a safe working environment.
Analyzing the existence of victimization
There is neither any sector nor any class of working women left untouched by the evil of Sexual Harassment in the workplace. The fear of reporting sexual harassment is more in women occupying lower jobs is a myth. The women holding high-profile jobs though having multiple equal opportunities do not complain about it due to fear of the consequences from the authority. According to the Report Garima[5], 68.9% of the women did not complain to the internal complaints committee or management due to the fear of retaliation, and subsequent repercussions. Fifty percent of the women quit their job post-inquiry, due to victimization. Therefore, the fear of retaliatory actions is one of the reasons for underreporting of sexual harassment in the workplace.
Instances explaining the existence of retaliatory actions against the complainant
The moment a victim of sexual harassment attempts to ‘public’ her ‘private’ anguish, she is labeled as a bad woman and becomes an easy target of harassers, and is subjected to humiliation publicly[6]. Studying the employer’s response to the reported complaints, two major things are noticed, firstly, complaining to the employer was women’s last choice and was resorted to when their workplace environment was becoming intimidating and secondly, retaliation from the employer after complaining, the form of termination, demotion, etc., was common in all the responses.[7]. In a study about nurses and nursing students it is found women do nothing and pretend as if they have not witnessed, felt, or experienced the situation because many times victims are in regular contact with perpetrators and they fear consequences faced post-reporting[8]. In an academic community, when a woman is harassed, there can be a concern to come forward and lodge a complaint, due to the fear of reputation, retaliation, or any repercussions on one’s career[9]. Further, the woman on probation will find it more difficult to report the complaint[10] because a woman who is new to the workforce might be worried about being perceived negatively or face biases if reported. A study at four hospitals in Kolkata found that 50 out of 77 women recognized fear of dismissal, loss of income, blocking of promotion, and victimization in work assignments such as inconvenient duty hours, as the factors underlying non-action against the perpetrator[11]. Whenever women report sexual harassment, it causes a division in the workplace where they will be isolated, and bullied and the rumour of such harassment will just escalate the situation and harm the working conditions of the victim. They tend to quit jobs as it becomes difficult to work in a hostile environment. The effects of sexual harassment will follow her to the next job because it will affect her work record and references[12]. The victims go through problems, irrespective of whether they respond actively or passively, because, if the victim complains, the perpetrator can become antagonistic or the victim may obtain a lower performance rating; and if they do not complain, they must go through the emotional and mental trauma. Therefore, these instances show that the fear of consequences such as demotion, low ratings, isolation from company activities, sudden transfers, increase in working hours, salary reduction, or termination of employment, with lack of social and organizational support, is discouraging women to take a step towards reporting the sexual harassment and this has a bad impact on other women who are subjected to sexual harassment and may be ready to report. The bitter experience pre- and post-reporting harms their mental health and lowers confidence making them think all men are rude[13].
Do Women Get the Social Support They Need from Their Peers?
The above instances prove that women are hesitant to report due to the fear of consequences, but when a woman picks up the courage to report the harassment, support, and help at the workplace are crucial. Social support acts as a catalyst to encourage the tormented woman to report sexual harassment against the perpetrator[14]. But such support is not always forthcoming. Some of the women interviewed in the survey for Saheli Report[15] said that, when the victim revealed about the sexual harassment she was not supported to report, but rather was isolated and asked to remain silent about such matter. Female colleagues advised the victims not to bring their experiences to authority. Their concern that “nothing will come out of complaining” contrasted with the support received from male colleagues[16]. Further, 57.8% of the victims who reported sexual harassment underwent abuse, and bullying by their colleagues. On the other hand, the Saheli report, also revealed that some of the victims received support from their colleagues in the workplace which helped them to successfully persuade the case of harassment done by their superiors.
One of the reasons behind not supporting the victim of sexual harassment is the fear of severe consequences from the authorities such as a threat to jobs, and jeopardizing their relationship with other peers, etc., Therefore, retaliatory actions are not only limited to the victims post-reporting but are extended to witnesses and woman colleagues who support her. This creates a situation where all women in the workplace are being placed in a vulnerable position, even if the women are willing to help the victims the fear of retaliatory actions will make them remain silent.
Sexual harassment in the workplace is not merely a physical attraction but is more about the misuse of authority. Women apart from becoming independent and fighting against the male-dominated workplace to establish their status must also put their dignity at stake, which is considered a negative consequence of women entering the workforce[17]. Sexual harassment at the workplace is not only questioning their dignity but also violating their fundamental and human rights as it violates the principle of equal treatment for men and women at work. The tussle between the woman’s dignity and her being the breadwinner of the family makes the situation even worse. Usually, working women with poor financial conditions struggle more between the psychological pressure on one hand and economic independence on the other. Even after facing all such traumatic acts, if the victim wants to continue the job, victimization will create a hostile environment which makes her constructively discharged from the job[18]. Due to this, working woman lose their self-confidence, are not sure about their work, and do not feel safe at their workplace, which further affects the basic motive of seeking employment and becoming independent. Therefore, even if complaining about sexual harassment will uphold their self-respect, many a time due to fear of consequences, victims think complaining is more injurious than remaining silent.
Analyzing the judicial pronouncements dealing with retaliatory actions against complainants.
In the case of Rina Mukherjee vs, The State of West Bengal[19], Rina lost her job at The Statesman newspaper within six months of joining. The company accused her of tardy and low-quality work but failed to mention that Rina had complained to the managing director about sexual harassment from the news coordinator, Ishan Joshi, just before her termination. When the organization did not investigate the matter, Rina filed a complaint with the West Bengal Women’s Commission, believing that her termination was due to the sexual harassment complaint. The Industrial Tribunal (West Bengal) held that the termination was not bona fide and was a colourable exercise of power. The employer’s inability to provide any evidence that Rina’s performance was unsatisfactory raises doubts about the discharge’s bona fide nature and suggests that she was victimized. The High Court of Calcutta upheld the order, requiring the organization to reinstate Rina for the remaining three weeks of her employment within three weeks from the order date.
In the case of X and ors vs Akademi and ors[20], the aggrieved woman from the northeastern states was appointed to the post of editor on probation for two years. The aggrieved woman started to face several sexual harassments from the secretary, which included sexual advances, unwelcome physical and sexual contact, and sexually coloured remarks. He also regularly made racist comments about women hailing from the North-east. When aggrieved woman confronted him and told him that she would complain to a higher authority, he tried to hold her hand, saying that she should have understood his ‘hints’ and she should provide him ‘bodily satisfaction’ if she did not want her probation period to be extended. After she reported the matter, the Internal Complaints Committee stated that it did not have the jurisdiction to inquire about the matter, and the Local Committee had the jurisdiction, which clearly shows the impartiality of the Internal Committee. The local Complaint Committee inquired about the matter and granted her interim relief. But the Internal Complaints Committee while submitting the report to the respondent stated that the aggrieved woman had withdrawn the complaint. When aggrieved woman started protesting for the same, she was terminated from the job. Challenging the termination order she approached Delhi High Court. And court ordered for reinstatement of the woman as a probationer in terms of her appointment letter with continuity of her services, till the conclusion of the inquiry by the Local committee.
In the case of Ms. X vs Registrar General, High Court of Madhya Pradesh and Anr[21], the petitioner was working as an Additional District and Sessions Judge with good grades in her Annual Confidential Records (ACRs). Thereafter, the petitioner complained that she was sexually harassed by Justice A. Due to the said sexual harassment complaint, the then District and Sessions Judge addressed a complaint against the petitioner to the Registrar General of M.P. High Court. Further, the Transfer committee of the M.P High Court approved the mid-term transfer of the petitioner from Gwalior to Sidhi without going through the annexures of the Transfer policy. The petitioner requested an extension or an alternative post to any of the four cities nearby so that her daughter could complete her education, which was rejected. Out of frustration, the petitioner applied for resignation, which was accepted by the government of Madhya Pradesh. The petitioner thereafter filed a writ petition before the Hon’ble Supreme Court, stating that she was coerced and exerted duress until the only option she had was to resign. The Supreme Court declared circumstances of the case show that the petitioner’s resignation could not be considered voluntary, but was forced and left with no other alternative. The respondents were directed to reinstate the petitioner and she would be entitled to continuity in service with all consequential benefits.
Although Rina and Ms. X were reinstated to their earlier position, and the District & Sessions Judge was given back her post, these cases effectively captured the essence of the retaliatory actions faced by the complainants of sexual harassment. The organization in all the above cases neglected to take cognizance of the complaint through the mechanisms prescribed by the law, which harmed other women workers, the safety of the workplace environment, and the company’s reputation.
Recently, the Hon’ble Supreme Court in the case of, Sunita Thawani Vs Union of India and Another[22], dismissed the Public Interest Litigation filed to protect the complainant, witnesses, or other persons in cases of sexual harassment from victimization or retaliatory actions faced in the hands of the accused person or the concerned organization. The reasoning for the same was, that the petitioner was required to show some instances of harm arising out of such victimization. In February 2020, the Delhi High Court dismissed the case relating to the offense of victimization and retaliation, stating “Retaliation, or victimization, is only the provocation for an act of assault. If an act of assault amounts to sexual harassment, it would anyway be punishable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. If it does not, it cannot be punishable under the said Act, as the Act deals with only offenses of a sexual nature, and an offense which does not lead to sexual harassment can find no place therein.” But the truth is, it is difficult to provide substantial proof of damage or harm caused to victims because retaliatory actions after reporting the sexual harassment are often non-sexual which can cause significant emotional distress and career setbacks for victims. This fear of non-sexual retaliation is one of the factors discouraging victims from reporting sexual harassment. Therefore, to encourage reporting and combat sexual harassment effectively, undertaking measures to address all forms of retaliation even if it is non-sexual nature is necessary and this would create a safer environment for victims and other working women to come forward and seek the redressal.
Does The Law Protect Against Victimization?
The Prevention of Sexual Harassment at Workplace Act, 2013 does not offer enough protection for victims of sexual harassment who face retaliation after reporting incidents. Although Section 19 of the Act requires employers to maintain a safe workplace, it fails to protect victims from retaliatory actions. Section 12 of the Act outlines procedures to be followed during the inquiry process, including the option for the Internal Committee or local committee to recommend the transfer of the victim, or accused to a different workplace or grant three months of leave to the victim, which should be a positive step towards ensuring the victim’s safety. However, in practice, such transfers are often seen as retaliation against the victim for speaking out about sexual harassment.
Conclusion and Way Forward
Victims of Sexual Harassment value their safety and support in the workplace more than taking legal actions against the perpetrator because they fear facing retaliatory actions post-reporting, which most of the time make the victim powerless due to job insecurity[23]. To overcome the stigma attached to the reporting of Sexual Harassment at the Workplace, which is well established in the paper, there is an urgent need to undertake measures protecting the complainants or witnesses from being victimized. Safeguarding those who come forward to report is not just a legal obligation but also a moral duty of the organization.
A committed effort on the part of the organization is necessary to ensure that the purpose of the Act, is served by encouraging the reporting of sexual harassment, rather than discouraging women through the weapon of victimization. Organizations that have invested in emphasizing gender diversity and ethical practices must inculcate strong policies toward protecting the victims of Sexual Harassment in the Workplace[24]. Thus, organisations while framing their policy must give a specific emphasis in the following aspects such as, zero-tolerance policy against retaliation within the sexual harassment policy which shall include a clear definitive clause describing all the acts of threats, intimidation, illegal transfer, isolation etc., as retaliatory actions; include the anti-retaliation clause written within the offer agreements between employer and employees which shall clearly state retaliation against complainants is prohibited, knowing there will be serious consequences for indulging in retaliation can make the individual less likely to do so; strengthen the reporting mechanism which shall include a confidential reporting through online reporting forms, anonymous reporting options rather than manually complaining to the superior authority which many a times go unheard[25]; the training and awareness programme about Sexual Harassment at Workplace should extensively cover recognising, reporting, and understanding the consequences of retaliatory actions against victim, the explicit discussion about retaliatory actions can bring it to the forefront of employee’s mind about what constitute retaliation because many might not even realize their actions constitute retaliation, further this can enhance peer support as it empowers the peers to recognize retaliation and understand its impact on the victim. These measures by prioritizing the victims make them feel safe even after reporting their experience of sexual harassment in the workplace.
The paper highlights how those in positions of authority exercise power dynamics and a patriarchal culture over victims of sexual harassment. Additionally, it is worth noting that while our education system is providing women with the skills and competence to be economically independent, it is failing to place more emphasis on gender equality and respect towards women. Addressing the issue solely through organizational measures is like treating the symptoms without addressing the root cause. To create a safe environment for women, a long-term approach is necessary that focuses on both cultural shifts and organizational reforms.
To conclude, the fact that despite policies on sexual harassment, inappropriate behaviour towards women employees continues in the form of retaliatory actions. This makes me think that laws and policies are universal but it is on the shoulders of the organization to improvise on them as per the need of their workplace. Therefore, organizations should focus on gender diversity in the workplace not only in terms of increasing the number of working women but also ensuring that all those numbers count!
[1] Natasha Somayya. Women mostly employed as labourers, Centre for Monitoring Indian economy, October 2023, https://www.cmie.com/kommon/bin/sr.php?kall=warticle&dt=20230830122437&msec=223#:~:text=There%20is%20a%20jarring%20gender,total%20employment%20in%20the%20country. accessed 18/12/2023
[2] VANDANA, SEXUAL VIOLENCE AGAINST WOMEN: PENAL LAW AND HUMAN RIGHTS PERSPECTIVES 230 (Lexis Nexis 2009).
[3] CATHERINE A. MACKINNON, SEXUAL HARASSMENT: THE EXPERIENCE The criminal justice system and women- offenders, victims, workers, 353 edited by Barbara Raffel (Windsor Review of Legal and Social Issues 1982)
[4] Prevention of Sexual Harassment at Workplace Act, 2013
[5] Report Garima Sexual Harassment at Workplace, Indian National Bar Association & Netrika Consulting, 2017.
[6] Dilip Gupta, and Juhi Garg, Sexual Harassment at Workplace, 2 INTERNATIONAL JOURNAL OF LEGAL SCIENCE AND INNOVATION (IJLSI) 1, 9 (2020).
[7] Anagha Sarpotdar, Implementing or Ignoring the Law on Sexual Harassment?” 51 ECONOMIC AND POLITICAL WEEKLY (EPW) 27, 28 (2016).
[8] Meena Ganapathy, Sexual Harassment: Are We Safe at Our Professional Space? 109 NURSING JOURNAL OF INDIA (NJI) 140,140 (2018).
[9] Anuj Thomas, Incidents of Sexual Harassment at Educational Institutions in India: Preventive Measures and Grievance 02 INTERNATIONAL JOURNAL OF INTERNATIONAL JOURNAL OF RESEARCH AND REVIEW IN HEALTH SCIENCES RECENT ADVANCES IN MULTIDISCIPLINARY RESEARCH 0320 (2015).
[10] Naina Kapur, Workplace Sexual Harassment: The Way Things Are, 48 ECONOMIC AND POLITICAL WEEKLY (EPW) 27, 29 (2013).
[11]Paramita Chaudhari, Experiences of Sexual Harassment of Women Health Workers in Four Hospitals in Kolkata, India, 15 REPRODUCTIVE HEALTH MATTERS 221,222 (2007).
[12] BOLAND, MARY, SEXUAL HARASSMENT IN THE WORKPLACE 48 (Sphinx® Publishing 2005).
[13] BULARZIK, MARY, SEXUAL HARASSMENT AT THE WORKPLACE: HISTORICAL NOTES 124 Workers’ Struggles, Past and Present: A “Radical America” Reader., edited by Green James, (Temple University Press 1983).
[14] Punam Sahgal, and Aastha Dang, Sexual Harassment at Workplace: Experiences of Women Managers and Organisations, 52 ECONOMIC AND POLITICAL WEEKLY (EPW) 49, 52 (2017).
[15] Another Occupational Hazard, Saheli Women’s Resource Centre, March 1999.
[16] SUPRA 13
[17] Garima Bhaya, Efficacy of Laws Relating to Sexual Harassment of Women at Workplace in India: Study, 4 INTERNATIONAL JOURNAL OF LAW MANAGEMENT & HUMANITIES 1252, 1253 (2021).
[18] SUPRA 12
[19] 2014 (4) CALLT 190 (HC)
[20] 2021(3) SLJ 454 (Delhi); the petitioner is referred to as aggrieved woman.
[22] MANU/SCOR/80111/2023
[23] STEVEN LOPEZ, ET AL, Power, Status, And Abuse at Work: General and Sexual Harassment Compared, 50 THE SOCIOLOGICAL QUARTERLY 3, 6 (2009).
[24] Sakshi Bhatt, How retaliation faced by victims is affecting the reportage of sexual harassment, ECONOMIC TIMES HR WORLD, (11 July. 2022), https://hr.economictimes.indiatimes.com/news/workplace-4-0/how-retaliation-faced-by-victims-is-affecting-the-reportage-of-sexual-harassment-cases/92793064
[25] Lily Zheng, Do Your Employees Feel Safe Reporting Abuse and Discrimination?, HARVARD BUSINESS REVIEW,(Feb 20), https://hbr.org/2020/10/do-your-employees-feel-safe-reporting-abuse-and-discrimination
Author: Anusha C Koti
Juris Centre 