Humiliation, harassment, torture and exploitation of women is as old as is the history of family life. In India, women are way ahead of women elsewhere in the matter of social legislation but the implementation of laws granting rights to women has been so slow, lopsided and haphazard that socially, economically and politically women lag far behind men. They are discriminated against at work and are denied their due in every field. The indifference and negligence are primarily the result of general acceptance of man’s superiority over woman in which violent acts have not been viewed as violent acts.[1]

“Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance. The international conventions and norms are, therefore of great significance in the formulation of the guidelines to achieve this purpose.”

Being a male dominated society, women were often suppressed under them and the offences of crime against women were also increasing. Women in today’s generation are well- educated and wanted to be self-independent or economically independent inorder to meet their own needs and demands. So, to become economic stability and not to be dependent on their family or household, most of the women preferred to get their own job or work.

As they try to fight economic disparity with men, a new form of crime emerges – Sexual harassment at workplaces. This offence is the most glaring example of human rights violation, gender inequality and injustices. This incident of sexual harassment at the workplaces also results in the violation of fundamental rights under the Constitution, namely the right to gender equality and the right to life and liberty.[3]

Sexual Harassment is a repulsive crime. Sexual harassment produces an unsafe milieu for women which encroaches their Fundamental Rights as preserved under Article 14, 15 and 21 of the Indian Constitution which provides for equality in status, opportunity and personal liberty.[4]

Sexual harassment often causes injuries like anxiety, trauma, depression, decline in work performances and break down of relationships.

Sexual harassment refers to unwelcome sexual advances or verbal or physical conduct of a sexual nature which has the effect of unreasonably interfering with the individual’s work of a performance or creating an intimidating, hostile, abusive or offensive working environment.

Section 354 -A of Indian Penal Code of 1860 provides Sexual harassment and punishment for sexual harassment

Shall be guilty of the offence of sexual harassment.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defines sexual harassment in Section 2 (n) which includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:-

As per the leaflet of the South East Region Women’s Group and WASH (Women Against Sexual Harassment), sexual harassment takes a multitude of forms and includes comments about appearance or body or clothes; leaning and staring at a person’s body; abusive, degrading, patronising or belittling remarks or behaviour; sexiest remarks or jokes; unwelcome sexual invitations or pressure; promise or threats concerning employment conditions in exchange for sexual favours, display of sexually explicit material; and touching, caressing, hugging, even indecent assault or rape. The first successful claim against sexual harassment at the workplace is Walker v. Northumberland Country Council,[7] where psychiatric damages were awarded by the English Court arising out of occupational stress. In such a case an action may be against an employer for negligence. The judgement in this case is of great importance as it opens yet another area, that is of mental harassment as distinguished from the physical contact theory. It is obvious that the violation of the female body perpetrated by acts of sexual harassment does not have to be at the level of the harm to the physical body. The harm may be caused by a verbal insult and may occur at the mental level.[8]

Sexual Harassment may be defined as sexual misconduct by a supervisor, i.e superior officer, irrespective of the employer’s knowledge of any loss or adverse effects for refusing superior’s unwelcome advances. As early as 1993, at the International Labour Organisation seminar held at Manila, it was recognised that sexual harassment of women at workplace was a form of “gender discrimination against women”. It was further said that sexual Harassment of a woman employee at workplace, amounts to violation of the “right to gender equality” and also right to life and liberty”. – the two most precious fundamental rights guaranteed by Articles 19, 14 and 21 of the Constitution.[9]

In most of the times sexual harassment always happens against women whether it is in workplace, home, road, public places, offices etc.

A survey conducted by the Mode Market Research Agency revealed that 90 million women constitute the organised workforce, besides those working in unorganised sector. Of 335 citizens interviewed in the four major metros – Kolkata, Mumbai, Chennai and Delhi, 63% and 53% respectively felt that discussing sex in the workplace was the most offensive forms of sexual harassment, 49% felt that dirty jokes and putting up “indecent” posters in the office constituted sexual harassment”.[10]

According to the 2017 BBC surveyed, it is found that 2000 victims of sexual harassment did not file a complaint either in the fear of retaliation or if the harassment was played off as a joke, more than half of all the victims stayed silent.

A report which is released by the U.S. Equal Employment Opportunity Commission (EEOC) in 2020 showed that 55.8% of the complaints received during 2020 are related to retaliation after reporting a sexual harassment incident. Retaliation comes in many forms including a demotion, exclusion from staff activities or unfavourable reassignment.

A survey of Stop Street Harassment in 2018 showed that an alarming 81 percent of women and 43 percent of the women have been harassed in their lifetime. [11]

Of the 527 people queried across seven cities – Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai and Pune – 19% said they have faced some kind of sexual harassment at the office. In a survey it is said that in Bangalore, 51% of the respondents had been sexually harassed while 38 % in Delhi and 28% in Hyderabad.

A survey of 2016 found that 504 women were included in the polling procedure, from which the results turned out as four out of five women faced sexual assault in public places like staring, insult, wolf-whistling etc. In a survey of 2011, it is found that 50% of the sexual harassment occurs in public buses while travelling.

A study of 2020 held that many people are not aware of the various types of harassment. It was found that 38.1 % of the victims and 42.2% of the offenders are aware of the laws relating to sexual assaults. In the words of Kaushik Gupta, Calcutta High Court, advocate “Often men even do not realise what is a violation. For women, it has been so naturalised in their systems that if a man is touching her inappropriately in a bus or a public place, she may normally try to move away a bit without raising her voice. At times there are cases of abuse where the woman has not understood that she has been violated. One of the principal reasons is that as a society, we have very little or almost no understanding of informed, enthusiastic consent.[12]

Incidents of Sexual Harassment in –

A twenty-four-year-old student of Kolkata was travelling in a crowded metro, where she could feel that a man brushed his genitals against her back which made her uncomfortable. She was afraid to raise her voice as she had often seen girls being asked to get off the train if they had too much problem.

A twenty-eight-year-old lady was waiting in the cloakroom for her luggage, it was late at night, she was reading her book. Another man was sitting in front of her, but she felt an utmost uneasiness as that person was staring constantly which made her uncomfortable. Later on, when she spoke out, that man started to yell at her and said that, because of girls like you, rape cases occur.[13]

Traditionally, Sexual Harassment id divided into two types in reference to workplaces. They are:

In England, Sexual Harassment is defined as someone who carries out unwanted sexual behaviour towards another person that makes them feel upset, scared, offended or humiliated.

The Equality Act of 2010 says that someone is said to be sexually harassed if they:

In England Sexual Harassment is tried under Section 154, of Criminal Justice and Public Order Act, 1994 which has inserted a new Section 4-A into the Public Order Act. It states:

Section 5-A deals with Harassment, alarm or distress

These provisions were designed primarily to deal with incidents of racial violence and racial harassment. Their utility in dealing with sexual harassment is thereof circumspect. Irene Mackay and Jill Earnshaw argue:

Section 5 was not designed to assist victims of sexual harassment, but to outlaw, in a place other than a dwelling, behaviour which amounts to more than mere annoyance or disturbance. Arguably this section could be used to frame a charge against the perpetrator of sexual harassment, although its use falls outside the spirit of the Public Order Act, 1986 and is at its lowest end of summary offences and so does not reflect the effect which harassment can have on the victim.[17]

According to the U.S. Equal Employment Opportunity Commission (EEOC):

More than 6,500 sexual harassment claims were filed with the EEOC in FY 2020.[18]

The definition of the EEOC is the same definition which is adopted by the convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW).[19]

The United States Supreme Court’s rulings in Burlington Industries Inc v. Ellerth[20]and Faragher v. City of Boca Raton,[21] set at rest the controversy that had grown in 12 years since the justices first ruled that sexual harassment was a forms of employment discrimination.[22]

The Civil Rights Act of 1964, title VII prohibits sex discrimination in workplaces. The court said:

Sexual harassment in educational institutions: Private damages action lies against the school – US Supreme Court – 1999

Davis v. Monroe Country Board of Education,[23]the fact of this case is that the petitioner brought a suit against the Monroe Country Board of Education and other defendants, alleging that her fifth-grade daughter had been the victim of sexual harassment by another student in the class. Among petitioner’s claims was a claim for monetary and injunctive relief from school officials under Title IX of EducationAmendments of 1972. The Title IX provides that no person in the United States shall, on the basis of sex, be excluded from participation in or be denied the benefits of, or be subjected to discrimination under any education programme or activity receiving federal financial assistance.

The petitioner’s minor daughter, LaShonda, was allegedly the victim of a prolonged pattern of sexual harassment by one of her fifth-grade classmates. According to the petitioner’s complaint, the harassment began in December 1992, when the classmate, GF attempted to touch LaShonda’s breasts and genital area and made vulgar statements.

Similar conduct allegedly occurred on or about 4 January and 20 January 1993. LaShonda reported each of these incidents to her mother and her teacher Diane Fort. Petitioner, in turn, also contacted Fort, who allegedly assured petitioner that the school principal, Bill Querry, had been informed the incidents.

The complaint alleged that the board is a recipient of federal funding for purposes of Title DC, that “the persistent sexual advances and harassment by the student GF upon LaShonda interfered with her ability to attend school and perform her studies and activities”, and that “the deliberate indifference by the defendants to the unwelcome sexual advances of a student upon LaShonda created an intimidating, hostile, offensive and abusive school environment in violate of Title IX.”

Petitioner contends that, notwithstanding these reports, no disciplinary action was taken against the classmate.

The district court dismissed petitioner’s Title IX claim on the ground that Title IX provided no basis for liability absent an allegation “that the board or employee of the board had any role in the harassment”. “Student-on-Student” or peer, harassment provides no ground for a private cause of action under the statute.

The Court of Appeals for the 11 Circuits, sitting en banc, affirmed the same. Circuit Court Judgement reversed; case remanded for further proceeding consistent with this opinion.[24]