When the world locked down during the pandemic, it was not only the physical workplaces that moved online. Harassment and gender-based violence (“GBV”) also skyrocketed in online workspaces, with the blurring of personal and professional boundaries making it easier for harassers to perpetrate such acts. With reports of harassment in workplaces reflecting worrying trends, and the unwillingness of the employers and governments to condemn and punish the perpetrators, there is a pressing need for change in how violence and harassment are approached in workplaces.
In this background, the International Labour Organisation’s Violence and Harassment Convention, 2019 (No. 190) (“C190”) and Violence and Harassment Recommendation, 2019 (No. 206) (“R206”) came into force in June 2021 acknowledging such acts as constitutive of human rights violations. It is the first international treaty to recognise the right of all workers to a world of work free from violence and harassment. C190 is also the first convention to explicitly recognise GBV in workplaces. C190 and R206 require that States, in consultation with representative employers’ and workers’ organizations, adopt “inclusive, integrated and gender-responsive laws” and policies to prevent and eliminate harassment and violence in workplaces against all employees irrespective of gender. C190 offers a very broad definition to violence in the workplace; it takes informal workplaces into cognisance and recognises that incidents of harassment and abuse can happen even outside the workplace.
Compared to the wide and empowering provisions of the C190, India’s Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) fails to match up. With instances of organisations neglecting the requirements of Internal Complaints Committees (“ICC”), lack of accountability mechanisms and hesitation in filing complaints, the framework must be reworked. Thus, this blog argues that India’s ratification of C190 is the first step required for plugging the concerning loopholes in our existing framework under the POSH Act and for broadening its scope.
Broadening definitions, inclusive outlook
C190 defines violence and harassment in the world of work as a range of unacceptable behaviours, practices, or threats “whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment” [Article 1].
On the other hand, Section 2(n) of the POSH Act is restricted to sexual harassment which includes direct or indirect unwelcome acts or behaviours consisting specifically of physical contact and advances, a demand or request for sexual favours, making sexually coloured remarks or showing pornography or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. This definition comes off as a closed definition, compared to the wide definition in C190 that has the flexibility to cover all manifestations of harassment and violence.
It applies to all workers irrespective of their contractual status – to interns, apprentices, volunteers, job seekers, workers who have been terminated – and all those exercising the authority of an employer and even third parties [Article 2(1)]. The approach of C190 is therefore victim-centred as it disregards intent as a necessary element for harassment. It condemns violence, regardless of intent and its source. It also applies to violence and harassment not only in workplaces but also places like resting areas, during work-related social events, trips, training, during the commute to and from work and in employer-provided accommodation. In the online work era, it is significant to note that C190 is also applicable to work-related communication, including information and communication technologies [Article 3].
Another important aspect of C190 is that it applies to all sectors – public, private, formal, and informal sectors in both urban and rural areas [Article 2(2)]. The implications of such a provision are enormous, especially in India where more than 90 per cent of all workers are employed in the informal sector. These workers, who are the most vulnerable are institutionally excluded from accessing the POSH Act. While the POSH Act provides for the establishment of Local Committees (“LC”) to receive complaints from establishments without ICCs (where workers employed are less than 10), only 29 per cent of districts in India have confirmed they have even constituted an LC. There is also no clear data on whether the awareness programmes on sexual harassment to be organised for LCs that are mandated by the POSH Act are being conducted.
There are other limitations to this system. For example, domestic workers who are extremely at risk of harassment due to the isolation of their workplaces and exclusion from labour laws are at a disadvantage. The only remedy that they can seek is to approach the LC with a complaint, which is then tasked with only ensuring that a prima facie case exists for the complaint to be merely forwarded to the police to register it as a case under Section 509 of the Indian Penal Code, 1860; the LC plays no other role in a case where a domestic worker approaches with a complaint [Section 11]. This leaves them with no civil remedy, unlike other workers who have the time-bound benefits of LCs.
Recognition of Gender-Based Violence and effects of Domestic Violence
An important missing link in the POSH Act is that of the non-recognition of GBV. GBV is defined in Article 1(b) of C190 as “violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment”. GBV disproportionately affects women and girls, especially in workplaces where many forms of discrimination intersect with unequal gender-based power relations. In C190, the ambit of what constitutes GBV is broader than other international instruments; the use of the word ‘persons’ in the definitions and throughout the Convention indicates that while GBV disproportionately affects women, men and gender-nonconforming persons can also be affected by it.
The need to expressly recognise GBV in the laws that combat violence in the workplace is to acknowledge its root causes; gender stereotypes, social and cultural norms that condemn harassment and violence and unequal power relations in the workplace. In India, the stigma around reporting instances of violence combined with the fear of retribution and institutional barriers are making workplaces unsafe for all. The ramifications of these seemingly isolated events are great – violence and harassment in workplaces are leading to a decline of women’s participation in the labour force.
Another helpful provision of C190 India can adopt is the recognition of the adverse effects of domestic violence on work, be it productivity, safety and health of workers [Preamble, Article 10]. Survivors of domestic violence may be stalked to their workplaces by perpetrators who may prevent them from going to work or taking away their earnings and may even try to harm their colleagues. In the light of such events, Article 10 of C190 requires member countries to take measures to recognise the various impacts of domestic violence and mitigate its impact on work. Paragraph 18 of R206 provides a variety of measures that can be adopted including leaves, flexible work arrangements and protection for survivors.
Employers must not feign ignorance of such incidents and instead can play a major role in detecting violence and aiding survivors in recovery and justice. They can also be key players in educating employees about the recourses they have for domestic violence and also for spreading awareness. In India, a recent report showed how domestic violence impacts work by leaving workers tired, unwell and unable to even go to their workplaces. It is also observed that laws and policies are non-existent in this regard, leaving workers helpless and unable to even take unpaid leaves.
Implementing C190: Challenges and Concerns
C190 vests the Member States with the responsibility to adopt its provisions in accordance with their national law and circumstances [Article 4]. With the POSH Act already in force, what remains for India is to incorporate into it, provisions to fill the lacunae as identified above. Questions regarding the effectiveness of gender-neutral harassment laws in India must also be addressed, especially since Indian women are disproportionately affected by sexual abuse and harassment and require special focus which, critics believe, gender-neutral harassment laws may erase. But this cannot be used to ignore the experiences of men and other genders who are also survivors of harassment and abuse in workplaces. C190 itself provides a balance in this situation; it requires policies to be ‘gender responsive’, i.e., identifying deep-rooted inequalities between men and women and then transforming such inequalities. This approach ensures that policies recognise how women are disproportionately affected by violence and harassment. Thus, ‘gender-sensitive’ laws can help balance the situation rather than ‘gender-neutral’ laws.
Special emphasis must be placed on improving the implementation of the POSH Act by monitoring the setting up of ICCs and ensuring their effective functioning. The ease of access and safety of survivors while accessing the mechanism must also be prioritised. Compliance can only happen if everyone from workers to employers to the members of the ICCs is aware of their rights and responsibilities.
Implementing the provisions of C190 in India to strengthen the legal framework surrounding sexual harassment and violence in workplaces is only the first step in making workplaces safe for all persons. Governments and employers play a major role in implementing existing provisions to the best possible extent while striving to broaden the scope of our legal framework to include the effects of GBV and domestic violence. Persons of all gender identities must be given recourse under the POSH Act and workers in all sectors must be protected and given opportunities to access justice. Lawyers, policymakers, NGOs and other stakeholders must push for immediate ratification and implementation of C190 for a more robust and inclusive law that truly protects the rights of all persons in the world of work.
This article is authored by Soumya S., student at Gujarat National Law University, Gandhinagar.