#MENTOO - MALE SEXUAL HARASSMENT AT WORKPLACE AND THE NEED FOR GENDER NEUTRAL LAWS

Authors:

Puru Pratap Singh, GNLU

Deepsea Chakraborty, Army Law College, Pune

Male sexual harassment at workplace – Is that even a real thing? From Akshay Kumar in its Bollywood rip-off Aitraaz to Michael Douglas in Disclosure, there have been cases of men being prey to sexual harassment and pestered not only in reel but also in real-life workplace situation. So why is this topic not been taken into consideration? The probable answer is because people are still used to perceive men as the harassers rather than the harassed. Nevertheless, male sexual harassment has been legally addressed in countries across the world, and has precedents in several workplaces.

Sexual harassment not only happens to a body but to a soul, irrespective of gender, age, and/or sexual preference of an individual.[1] India recognises that what constitutes sexual harassment at the workplace are acts and behaviours of a sexual nature which are naturally linked to a range of undesirable experiences. These range from intrusion with work to creation of an intimidating work setting to implied or explicit promises and threats concerning one’s treatment at a workplace i.e. quid pro quo.[2]

NEED TO RECOGNIZE MALE SEXUAL HARASSMENT AT WORKPLACE

Part III of the Constitution guarantees fundamental rights to each and every citizen of the nation.[3] Article 14 and Article 15 enshrines right to equality before law and provides for prohibition of discrimination on the grounds of sex, respectively. Men therefore must be entitled to the same rights as women. However, there are certain laws in our country which are not gender-neutral to consider the complaints of men and transgender persons as they are made specially to protect and safeguard the women. The fact that sexual harassment at workplace against women is happening till date is undeniable but that does not mean that men and transgender persons are not abused or harassed.

Fortunately, enough legislations to protect women from sexual harassment are into force in India such as Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), 2013, Sexual Offences Act, 2012, Immoral Traffic (Prevention) Act, 1956 and various provisions of the Indian Penal Code, 1860 among several others. Currently, under Protection Of Children from Sexual Offences Act, 2012 both male and female children are protected from being sexually exploited. But, for male adults there is no law to protect them against sexual offences at workplace. Sexual harassment law hardly provide any recognition of male victims and female perpetrators.

There are growing instances of men being sexually harassed in today’s time from being a target of remarks loaded with sexual innuendo to being stalked. But since Indian men are supposed to be ‘mards’, they are to take all of this in fun and not feel uncomfortable and/or complain about the same. Right? No, men must not take it in a spirited-intended way and voice against these offences. Even though male sexual harassment cases are a less frequent occurrence than female cases, they cannot be denied of the right to equality under any circumstances.

GENDER NEUTRALITY IN LAWS FOR MALE SEXUAL HARASSEMENT AT WORKPLACE IS NOT ANTI-WOMEN

Gender neutrality has been perceived to be anti-feminist principles and an attack on women activists.[4] Feminists have disapproved it as a ‘backlash against feminism’.[5] Recognition of male victimization does not in any way undermine feminist understanding of sexual harassment or rape. In essence, gender neutral laws does not make female victims more vulnerable but simply recognizes the prevalence of male victimization.

FEW STEPS PROPOSED

Parliamentarian and Senior lawyer K.T.S. Tulsi, introduced a private members bill before Rajya Sabha in July 2019, proposing to make sexual offences gender neutral. The bill proposes to change the words ‘man’ and ‘woman’ to ‘any person’ in criminal laws so that any individual who has been sexually harassed can seek remedies under these laws. By replacing the words ‘man’ and ‘woman’ with the word ‘any person’, it not only includes men but also covers the transgenders under the purview of law against sexual offences since they are not an exception to sexual harassment especially at workplace. [6]

The Ministry of Women and Child Development, Government Of India has also proposed certain amendments in Immoral Traffic (Prevention) Act,1956 with regard to gender neutral provisions. It proposed to change the words ‘his’ or ‘her’ with a gender neutral so as to cover all genders under this Act.

AN ANALYSIS OF INTERNATIONAL CONVENTIONS

The United Nations on several occasions has played a crucial role in countering various social evils around the globe through both passive an active actions. The same has also been crucial in establishing a strong sense of co-operation among many global players. Sexual Harassment, in the workplace or otherwise too has been dealt in detail by the organisation, however in a completely female inclined manner. Among the several resolutions passed by different organs of the organisation, none of them takes into account the issue of sexual harassment from the point of view of male members of the society. Considering the recent boom in the number of reported cases, it is imperative that this issue garner support and necessary steps be taken. This is because it cannot be denied that the cases that have actually been reported are a fraction of what are actually taking place in the world. Following are some resolutions by the UN and the key provisions discussed-

1. Declaration on the Elimination of Violence Against Women[7]

This declaration categorically defines violence as something which includes sexual harassment which must be actively discouraged in workplaces, educational institutions etc. Section 2(b) of this declaration recommends the setting up of legislations both civil and criminal in nature along with task forces to tackle the issue. What is peculiar to note is that despite the prima facie possibility of sexual violence against men, there is not a single provision which safeguards their interests.

2. The Convention on the Elimination of Discrimination Against Women (CEDAW)

CEDAW is a convention which encompasses most situations in which or where women are discriminated against. It is a universal truth that women have been the oppressed members of the society since time immemorial. However, it is the need of the hour to adapt to the circumstances that have changed.

3. Beijing Platform for Action

The Beijing Platform for Action is flawed in a manner as that of The Declaration on the Elimination of Violence against Women. Paragraph 178 recognizes sexual harassment as a form of violence against women and as a form of discrimination, and calls on multiple actors including government, employers, unions, and civil society to ensure that governments enact and enforce laws on sexual harassment and that employers develop anti-harassment policies and prevention strategies.[8]

The conventions and declarations are few of the several examples in international law, where sexual harassment against men in the workplace has not been recognised. This is also reflected in a more regional level, when it comes to African or European legislations as well.

MISUNDERSTANDING FEMINISM

Feminism is an ideology that has garnered widespread support in the recent years. It is a philosophy speaking about equality between men and women. Feminist theory posits that sexual harassment should be treated as a sexist act that aims to subjugate and disempower women, and punish their efforts to compete with men over jobs and status. This theory challenges the idea that sexual harassment is a sexual act and invites scholars to see it from a gender-based angle that reflects male dominance and women's subordination, which are constantly condoned by society.”[9] It is indeed true that feminism is a war against the patriarchal nature of the society, to eliminate the misogynistic components that exist in our world. However many a times people mistake feminism to be pro-women ideology. This is one of the most pressing issues as feminism today is something that is a huge part of the society’s mind set. It is absolutely necessary that while making laws or while gathering support for a change in the functioning of the key pillars that feminism in its true sense be engaged. Therefore it is very much needed at this time, to look at sexual harassment from the perspective of all genders and not just focussing the same on females.

[1] Prashanti, Sexual Harassment of men at Workplace, http://www.legalservicesindia.com/article/2039/Sexual-Harassment-of-Men.html [2] Dimpy Mohanty, India: Sexual Harassment In The Workplace: What Indian Companies Need To Know, LexCounsel Law Offices, (2018). [3] The Constitution Of India, (1950). [4] Rumey, P. In Defence of Gender Neutrality Within Rape, Seattle Journal of Social Justice, Vol. 6, 481, (2007). [5] Novotny, P. Rape Victims in the (Gender) Neutral Zone: The Assimilation Of Resistance? Seattle Journal of Social Justice, 1, (Iss. 3, Article 62), (2014). [6] Sangeethaa N S, Is Sexual Harassment Gender Neutral?, http://lawtimesjournal.in/is-sexual-harassment-gender-neutral/, (2020). [7] General Assembly Resolution 48/104. [8] endvawnow.org/en/articles/492-sources-of-international-law-related-to-sexual-harassment.html. [9] https://www.aucegypt.edu/news/stories/feminist-theory-new-take-sexual-harassment.

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