Sexual Harassment under the POSH Act: Meaning and Scope

Everything in the POSH Act turns on whether the conduct complained of is sexual harassment. Section 2(n) lists the unwelcome acts or behaviour that qualify, and section 3 prohibits sexual harassment at any workplace and identifies circumstances, such as threats to a woman's job or a hostile work environment, that may amount to it. Together they capture both quid pro quo harassment and hostile environment harassment. This note explains the definition, the circumstances and the judicial tests.

1. The Definition: Section 2(n)

Figure 1: Five kinds of unwelcome acts or behaviour

• Text. 'Sexual harassment' includes any one or more of the following unwelcome acts or behaviour, whether directly or by implication: physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
• Inclusive. The word 'includes' makes the list illustrative. Clause (v) covers any other unwelcome conduct of a sexual nature, including gestures, messages, images and online conduct.
• Direct or implied. Harassment need not be explicit; innuendo and implied demands are covered.

2. Prohibition and Circumstances: Section 3

Figure 2: Circumstances that may amount to sexual harassment

• Section 3(1). No woman shall be subjected to sexual harassment at any workplace.
• Section 3(2). The listed circumstances, among others, if they occur or are present in relation to or connected with any act or behaviour of sexual harassment, may amount to sexual harassment.
• Quid pro quo. Clauses (i) to (iii) cover harassment linked to employment benefits or threats: a promise of promotion, a threat of transfer, a threat to her job.
• Hostile work environment. Clauses (iv) and (v) cover conduct that interferes with her work or creates an intimidating, offensive or hostile environment, or humiliating treatment likely to affect her health or safety.

3. The Tests

Figure 3: Elements of sexual harassment

• Unwelcome. The conduct must be unwelcome to the woman. Courts assess this from her perspective; the respondent's claim that he meant no harm does not answer the complaint.
• Apparel Export Promotion Council v A.K. Chopra (1999). Sexual harassment is a form of sex discrimination through unwelcome sexually determined behaviour. Physical contact is not essential, and an attempt to molest is enough.
• Shanta Kumar v CSIR (2017). The Delhi High Court held that physical contact amounts to sexual harassment only if it is part of sexually determined behaviour. Contact during an ordinary altercation, without sexual undertones, does not fall within the Act.
• Criminal law. Much of the same conduct is also the offence of sexual harassment under s.75 of the Bharatiya Nyaya Sanhita (formerly s.354A IPC), which may be pursued separately (Topic 23)

4. Frequently Asked Questions

Is every unwelcome physical contact at work sexual harassment?

No. The contact must be of a sexual nature, or part of sexually determined behaviour. In Shanta Kumar v CSIR (2017), the Delhi High Court held that physical contact during an altercation without any sexual undertone was not sexual harassment under the Act.

What is quid pro quo sexual harassment?

Harassment in which employment benefits or detriments are linked to sexual conduct, such as an implied or explicit promise of preferential treatment, a threat of detrimental treatment, or a threat to the woman's present or future employment status, covered by s.3(2)(i) to (iii).

5. Related Topics

• Topic 5: Workplace: Meaning and Extended Scope. Where the Act applies.
• Topic 23: POSH and Criminal Law. The parallel offence.