Legal compliance is crucial for effective anti-sexual harassment legislation. But Anukriti Dixit shows how a focus on compliance disregards caste, sexual orientation or religious status. These neglected hierarchies inherent in anti-sexual harassment policies are key to combatting sexual harassment in the workplaces of India
Over recent decades, various countries have implemented workplace anti-sexual harassment policies. Crucial to the implementation of such legislation is a culture of compliance with the law. However, overemphasis on compliance alone, without a complementary shift in organisational culture, ignores significant social hierarchies. In India, for example, such policy is failing to safeguard oppressed-caste people, or those from religious, sexual or disabled minorities.
In 1992, an oppressed-caste woman, Bhanwari Devi, was sexually assaulted while working for the Government of Rajasthan. Devi was gang-raped by oppressor-caste men, but her attackers were subsequently acquitted. Following outrage from women's rights groups, India's government implemented anti-sexual harassment legislation.
Nearly three decades later, in 2020, a 19-year-old Dalit woman was gang-raped and murdered by four oppressor-caste men while working in her family's fields. An Indian High court acquitted three of these men. One was found guilty of culpable homicide, but none were accused of rape. Such impunity for oppressor-caste perpetrators makes a farce of compliance measures. The oppression of informal (largely oppressed-caste) workers is thus allowed to continue.
The Sexual Harassment of Women in the Workplace Act is India's primary anti-sexual harassment legislation. The law requires employers to provide explicit restrictions on sexually harassing behaviour, and to undertake mandatory training. It also requires information on the number and type of sexual harassment cases referred annually to India's Ministry of Women and Child Development.
In India's informal employment sector, low income and caste, and religious status, increase the likelihood of (sexual) exploitation
To bring a sexual harassment case, formal-sector workers must approach an internal committee within their organisation. Informal workers approach a local complaints committee that covers an entire district.
A report by advisory body ungender found that district offices in India commonly flout due process and compliance norms. The number of districts in India with functional local complaints committees remains low, and they frequently fail to file complaints.
In India's informal employment sector, low income and caste, along with religious status, increase the likelihood of (sexual) exploitation. A report by the nonprofit IndiaSpend found that 93% of rural women work in the informal sector. It also found that 90% of oppressed-caste and 95% of Muslim people earn their livelihoods through informal work.
Local complaints committees are each required to contain one oppressed-caste woman. Needless to say, however, a single oppressed-caste woman on a panel of oppressor-caste people would, in practice, feel far too intimidated to speak up on decisions regarding prevention and redressal policies. Compliance with anti-sexual harassment policy, therefore, offers a crucial step forward, but it does not address structural marginalisation.
In the formal sector, internal committees require no representation from oppressed castes. This reinforces the wrongful assumption there is no caste-based discrimination in formal workplaces.
Employer liability is intrinsic to most countries' anti sexual harassment laws. Such legislation problematises sexual harassment as either an ‘unfair labour practice’ or as ‘sex-based discrimination’. The United Nations’ Committee on the Elimination of Discrimination Against Women also uses the language of anti-discrimination. Put simply, it implies that sexual harassment violates women’s right to work.
Difficulty arises, however, when we examine sexual harassment on a case-by-case basis. If an employer has fulfilled basic statutory criteria, the law tends not to hold them responsible for individual instances of employee deviance. Furthermore, organisations may develop a culture that treats certain groups as ‘liabilities’. This would mean, for instance, that an employer would be less likely to hire women, queer or trans people. Employers may feel people from these groups would be more likely to invoke anti-discrimination laws, or to claim maternity benefit.
Organisations may develop a culture that treats certain groups as ‘liabilities’, making them less likely to hire women, queer or trans people
People tend to ignore the flipside of this argument. This is that the perpetrators, largely men in positions of power, are, in fact, more likely to litigate to ‘restore their reputations’ or to get their jobs back.
I analysed 70 Indian High Court and Supreme Court verdicts in sexual harassment cases between 1997 and 2019. I found that nearly 70% of cases were brought by one of three types of client:
a. Alleged perpetrators aiming to reverse their conviction by claiming the case was ‘false’ or threatening the victim with defamation
b. Employers claiming the accuser is ‘incompetent’, or trying to malign the organisation's reputation
c. Respondents (largely men) suing their employer for wrongful dismissal
It is clear that the idea of who generates ‘liability’ is produced through the lens of privilege.
Compliance is an important, irreplaceable part of anti-sexual harassment law. Formal and informal organisations, along with district offices, must form committees to prevent and redress workplace sexual harassment cases. Overdetermination of compliance, with little to no emphasis on anti-discrimination and anti-sexual harassment policy provision for oppressed-caste and other marginalised people such as religious, sexual and disabled minorities, produces compliance only as one more administrative hurdle to be tackled.
India's workplaces need better hiring practices, and improved protection for victims of caste-based violence
India needs better hiring practices across law and order organisations, and in the private sector. It must place greater emphasis on provisions for caste-based violence to supplement the existing legal provisions for anti-sexual harassment policy. Such reform is in line with Kimberle Crenshaw’s legal reform proposals that recognise race and gender in anti-domestic violence and anti-rape litigation.