Workplace sexual harassment v. Workplace bullying: Do you know the difference?

Workplace sexual harassment and bullying are often used interchangeably; bullying is regarded as a type of harassment, this interchangeability creates confusion in differentiating both the concepts though there is a significant difference between both the terms. The law relating to each of these terms is different then the approach to deal with both should be different. Therefore it is significant to classify the differences. Both these issues have a drastic impact on one’s physical, emotional health, performance, and morale.

Bullying

Bullying has been defined as an act that involves such behavior which may comprise intimidation and aggression characterized by unequal power relationships and persistence. Or in other words, it is unwanted, repeated and unreasonable aggressive behavior with the use of threat and power to intimidate and dominate others which causes psychological harm. Act like mocking, intimidating comprise of bullying at the workplace and can be done both by the employer or employee. 

The repetitive act which causes harm psychologically or physically can be termed as bullying, someone having a bad day doesn’t amount to bullying. According to research bullying is done once weekly for 6 months or more than 6 months. And it affects psychologically or physically. Bullying is a cumulation of trivial incidents which when taken into isolation is very trifling.

Bullying is even evident in colleges and schools, it is perceptible in the form of ragging. The government, to exercise control over it, formed a committee that was formed. The guidelines of the formed committee and regulations of UGC govern and take measures for mitigating ragging in the schools and colleges.

At the workplace it is done by the way of unwanted criticism, unreasonable exclusion pf an individual, misuse of authority, insulting or spreading rumors, even sometimes foul language may be used. Another important thing about bullying is that the one who is being bullied doesn’t realize expeditiously that one is being bullied, one realizes it gradually after a point of enlightenment.

Position In India 

India doesn’t have any specific laws addressing bullying at the workplace. A serious issue like bullying is overlooked by the lawmakers of India. Though various issues are dealt with by various sections of IPC such as Section 323–Punishment for voluntarily causing hurt, Section 339– Wrongful restraint, Section 340–Wrongful confinement, Section 506– Punishment for criminal intimidation. 

Though the Indian legal system considers sexual harassment at the workplace it doesn’t consider bullying which is a mode of non-sexual harassment which includes harassment based on religion, sex, age, race, etc. In India bullying is not considered as a separate offense however it is linked with other offences lawmakers have always tried to negate bullying as a separate offense.

Though in India there is no specific law that deals with bullying at the workplace there are some scattered provisions if strictly applied would mitigate bullying at the workplace.  

• No Sex Discrimination In Providing Wages– Section 2(h) of the Equal Remuneration Act 1976, and Article 39(d), of the Constitution of India confers that employers should provide every employee whether male or female equal remuneration for equal work.
• No Delay In Payment Of Wages –The provision of provides timely payment of wages is provided under Section 5 of the Payment of the Wages Act 1936.
• Equal Pay For Equal Work – Equal Remuneration Act 1976, provides that every employee should receive the same remuneration for a similar nature of work.

Bullying violates their right of the employees to live with dignity which is conferred by the constitution of India under Article 21. Furthermore article 42 & 43 of the Constitution of India which ensure and direct state to provide the humane and healthy working condition.

Sexual Harassment At Workplace

The sexual harassment at the workplace is ubiquitous that means it is faced by almost every nation whether developed or developing the country. It is a problem that has negative effects on both men and women. But more often than not sexual harassment takes place with women because this section of the society is considered as the most vulnerable section of society.

In simple words, sexual harassment includes unwanted behavior, unwelcome sexual advances, physical or verbal conduct. Legally, it is defined under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, under section 2(n) as-

 “Sexual harassment includes such unwelcome sexually determined behavior as:

1. a) Physical contact and advances;
2. b) A demand or request for sexual favors;
3. c) Sexually colored remarks;
4. d) Showing pornography
5. e) Any other unwelcome physical verbal or non-verbal conduct of sexual nature.” 

Workplace sexual harassment can be seen as gender discrimination which takes place in a working environment which violates the fundamental rights of the women conferred under article 14, 15 and 21 of the Indian Constitution. Sexual harassment impedes their rate of growth in the competitive world and also affects the performance of an individual. Reasonable apprehension humiliation, and health and safety problem at the working environment is also understood as sexual harassment. Any co-worker or employer by any gesture if creates a venomous environment that would amount to workplace sexual harassment. 

Position In India 

In India, often the cases of Workplace sexual harassment go unreported as the victims rather than facing humiliation prefer to keep quiet. The first legislation in this regard was enacted in 2013, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which is also called POSH act. The act was enacted to prevent the women from sexual harassment at workplace. 

The landmark case of Vishakhav. The state of Rajasthan, lead to the establishment of the act. This case serves as a guiding principle for the case of sexual harassment. Under this case, for the first time, the definition of sexual harassment was provided and several guidelines were issued regarding harassment in workplaces and the guidelines issued in the judgment are currently the law of the land. Under the absence of specific law ‘Vaishaka guidelines’ were followed by the employers. It took 16 years after the judgment to replace the guidelines with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Before the Supreme Court’s landmark judgment, the cases were dealt with under various sections of IPC, Section 354 which deals with outraging the modesty of women and Section 509 which deals with using a word, gesture or act intended to insult the modesty of a woman.

Difference Between Bullying And Sexual Harassment

Bullying is unwanted, repeated and unreasonable aggressive behavior with the use of threat and power to intimidate and dominate others which causes psychological harm. As stated in the definition bullying is more of harm that is caused psychologically rather than physical or sexual harm or humiliation whereas sexual harassment is unwanted behavior that is more of a sexual.

For Workplace sexual harassment, there is a specific law which has been established after the case of Vishakhav. State of Rajasthan, in India i.e The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the main objective of the act was to mitigate the sexual harassment in workplace whereas there is no specific legislation pertaining to bullying at workplace in India though there are various scattered provisions under IPC that govern bullying at workplace.

Workplace sexual harassment is treated as an offense in India that means it is illegal in India. Hence separate legislation has been enacted by the lawmakers of India. Whereas there is no separate legislation for bullying and it is never considered separately, it is always taken with other offenses and provisions.