Any unwelcome behaviour at workplace is sexual harassment irrespective of harasser's intent: Madras High Court

Any act or words that make a woman feel uncomfortable at her workplace, or are perceived by her as being unwelcome constitute an act of sexual harassment as defined under the Prevention of Sexual Harassment (PoSH) Act irrespective of the perpetrator’s intent behind such actions, the Madras High Court recently held..In an order passed on January 22, Justice RN Manjula invoked the ‘reasonable woman standard’ and held that the PoSH Act prioritises how a victim perceives a behaviour and not necessarily the intentions of the harasser. "If something is not received well and it is inappropriate and felt as an unwelcome behaviour affecting the other sex, namely the women, no doubt it would fall under the definition of ‘sexual harassment’,” the High Court said.The judge also cited a US Court's judgement to hold that the standard of reasonableness is not the standard of a reasonable man but that of a reasonable woman."In Joseph Oncale vs Sundowner Offshore Services, Inc.523 U.S 75(1998), the U.S. Supreme Court has observed that in the matter of complaints given for sexual harassment in work places, the standard of reasonableness is not the standard of a reasonable man but the standard of reasonable woman," the High Court said..The Court further said that corporate employees are expected to understand that they must interact with their colleagues while maintaining certain levels of decency. Moreover, such yardstick of ‘decent’ behaviour must be assessed through the lens of how such behaviour makes others, particularly women, feel.“The definition of “sexual harassment” as it is seen from the PoSH Act has given significance to the act than the intention behind the same. In the event of such actions are reported as criminal offense then the prosecution may be expected to prove the intention also. It is the fundamental discipline and understanding with which the employees of different gender are expected to interact with each other where decency is the yardstick and nothing else. While speaking about the decency it is not the decency which the respondent thinks within himself, but how he makes the other gender to feel about his actions,” it said..The Court made the observations while quashing and setting aside an order passed by a labour court that had overturned the findings of sexual harassment arrived at by the Internal Complaints Committee (ICC) of multi-national corporation, HCL technologies against one of its senior employees.Three women had made a complaint before the ICC alleging that a senior employee who held a supervisory position would often stand behind them while they were busy working at their desks and would touch their shoulders and insist on hand shakes.At one point, he insisted that one of the complainants remove her jacket to give measurements for an overcoat that all employees were receiving despite the woman already telling him what size she wanted such coat in..The man claimed that since he was required to check the employees’ work without disturbing them, he would observe their work while standing behind them. He denied any intent on his part of sexually harassing the woman by asking for measurements and said he needed the measurement in centimetres and had hence, asked one of the complainants to get such size specifications.He further said that he had asked for CCTV footage from the ICC but was denied access to the same. It is this denial of access to CCTV recordings that the labour court interpreted as equivalent to the ICC having denied the man a chance of fair defense. The labour court thus, set aside the ICC’s findings that had held the man guilty of sexual harassment at workplace..In its appeal filed before the High Court, HCL argued that while the ICC report was from 2018, the man had approached the labour court only in the year 2019, after he was dismissed from the company.Senior Advocate Srinath Sridevan, who appeared for HCL, further argued that the ICC had conducted its probe in line with the provisions of the PoSH Act and the principles of natural justice..The Court noted that three complainants had clearly explained to the ICC how the man’s actions and words had made them feel.The man himself had accepted he used to stand behind them, and that among other things, he had asked for the measurements from one of the complainants. The CCTV footage would not have any bearing on the findings of the ICC thus, the Court held.“It has been already stated that the respondent's act has caused a feeling of embarrassment and discomfort in the mind of complainants. The respondent did not deny the fact that he was standing near the complainant but had justified that it was his duty to supervise the works of the complainant. So, the CCTV footage and the visuals cannot help him to prove or disprove the intention. All that can be understood is how it was felt by the recipients who are the complainants,” the High Court said..It further said that the ICC had conducted a reasonable inquiry and the labour court should not have gone into hyper technicalities. The Court accordingly set aside the labour court’s order..Senior Counsel Srinath Sridevan and advocate Anita Suresh appeared for HCL.Senior Counsel KM Ramesh and advocate V Subramani appeared for the accused-employee..[Read Order]