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Protection Of LGBTQ+ Under The Sexual Harassment Act

By May 31, 2024June 10th, 2024Blogs, Inclusive DiversityViews: 152

A recent case in the High Court of Karnataka has exposed the harsh consequences of workplace harassment faced by an LGBTQ+ individual. The loss of 35-year-old Vivek Raj has prompted a serious look at the current legal framework, especially the PoSH Act of 2013. It has become clear that the law needs a significant update to ensure the protection of everyone, no matter their gender identity or sexual orientation.

LGBTQ+ Discrimination in The Labour Market

Marina Maria Gorsuch, Assistant Professor at St. Catherine University, studied workplace dynamics for the LGBTQ+ community, exploring if gay women face challenges similar to heterosexual counterparts. Using fictional resumes with LGBTQ+ indicators, the study found that while straight women received favorable ratings, a discriminatory effect emerged when LGBTQ+ indicators were present. Male respondents exhibited a clear negative bias, especially against gay men. Interestingly, women showed a smaller, statistically insignificant negative response, highlighting nuanced challenges within the LGBTQ+ spectrum.

The plight of the LGBTQ+ community in India is not far off from the east. The case of Vivek Raj is proof enough.

Reflecting on a Decade: Is the PoSH Act Enough?

It’s been ten years since the Sexual Harassment of Women at Workplace Act was put into action in 201It’s time we take a closer look at how effective it has been. While it was a good step towards a safer work environment, the challenges of 2022, especially post-pandemic, show its limitations. The law, designed for women, unintentionally overlooks that anyone, regardless of gender, can be a victim of sexual harassment.

A Glaring Omission in Coverage

The PoSH Act, 2013, has been a commendable step toward fostering a secure work environment. However, the law requires a transformative update to address the dynamic intersectionality prevalent in today’s fluid professional arenas.

Every office today harbors members of the LGBTQ+ community who often find themselves subjected to various forms of harassment, ranging from intrusive personal questions to exposure to explicit content. The realization strikes that the existing legislation, while well-intentioned, focuses solely on protecting women, inadvertently overlooking the fact that any individual, regardless of gender, can fall victim to sexual harassment.

A decade since the enactment of the law, the need for change resonates louder than ever. The post-pandemic workplace dynamics have given rise to myriad intersectionality that demand immediate attention. The existing legislation’s gender-specific focus raises concerns about its discriminatory nature, emphasizing the need for a more inclusive and progressive approach.

The Call to Action: Businesses as Agents of Change

The current law neglects to protect men and members of the LGBTQ+ community.

The call to action is clear—develop a gender-neutral policy that safeguards all employees, irrespective of gender identity.

Implementing Zero Tolerance for Harassment Through CoC

The policy must be a beacon of intolerance for sexual harassment, empowering every employee to report instances in alignment with robust policies.

Companies must integrate this commitment into their Code of Conduct (CoC), fostering a culture of zero tolerance for sexual harassment irrespective or in a deeper sense, especially of gender, sexual orientation, and gender identity.

The fundamental rights of all employees must be respected, transcending discrimination based on gender identity. The Indian Constitution guarantees the right to life, equality, and prohibits discrimination through Articles 14, 15, and 21.

Creating a Sensitized Workplace: Collective Responsibility

The reimagined workplace should not only protect its employees but also sensitize them to the importance of shielding their colleagues from harassment. This collective responsibility, viewed as a human right, aligns with the ongoing initiatives surrounding mental health, fitness, and inclusivity across diverse backgrounds. This can start by understanding the terms:

Gender Identity

Definition: Gender identity refers to an individual’s deeply-felt internal sense of their own gender. It is an intrinsic understanding of being male, female, or another gender, which may or may not align with the sex assigned at birth.

Characteristics: It is a personal and subjective aspect of one’s identity, forming the basis of how an individual perceives themselves in terms of gender, regardless of societal expectations.

Sexual Orientation:

Definition: Sexual orientation relates to an individual’s romantic or sexual attraction to people of the opposite gender, the same gender, or both genders. It is a consistent pattern of emotional, romantic, and/or sexual attractions.

Diversity: Sexual orientation exists on a spectrum, including but not limited to heterosexuality, homosexuality, bisexuality, and pansexuality. People may identify with a specific sexual orientation based on the genders to which they are attracted.

Gender Expression:

Definition: Gender expression encompasses how a person outwardly presents their gender through appearance, clothing, grooming, and behavior. It reflects an individual’s interpretation and outward manifestation of their gender identity.

Cultural Variations: Gender expression is culturally influenced and can vary significantly across different societies and historical periods. It includes visible attributes such as clothing choices, hairstyle, and mannerisms.

Understanding these terms is crucial for effective communication, promoting respect for individual identities, and ensuring compliance with legal frameworks aimed at preventing discrimination based on gender identity or sexual orientation.

Revolutionizing the Sexual Harassment Act

The revolution envisioned in rewriting the Sexual Harassment Act heralds a future where companies prioritize the well-being of all employees, fostering a better workspace. The ripple effects extend beyond corporate boundaries, contributing to increased growth not only for businesses but for humanity as a whole. As more companies adopt progressive policies, the workspace becomes a bastion of happiness, reflecting the true spirit of inclusivity and progress.

Sensitivity to Language Changes

The language around gender, sexual orientation, and related concepts continues to evolve. Being sensitive to these changes and using inclusive language fosters an environment that respects the diverse experiences and identities within the broader community.

Gossiping or making fun of a co-worker’s gender identity, sexual orientation, or gender expression is a form of harassment. While the POSH Act does not provide direct protection to the LGBTQ+ community, some progressive organizations have taken steps to extend inclusivity and protection to all employees.

Here are some ways in which organizations can contribute to protecting the LGBTQ+ community:

Inclusive Policies

Forward-thinking organizations should choose to develop and implement inclusive policies that explicitly mention protection against harassment based on gender identity or sexual orientation. These policies can ensure a more comprehensive approach to preventing and addressing all forms of harassment, including those faced by LGBTQ+ individuals.

Internal Committees (IC) Inclusivity

Organizations can ensure that their Internal Committees (IC) responsible for handling harassment complaints are well-trained and sensitive to the concerns of LGBTQ+ employees. The IC can be educated on the unique challenges faced by individuals from the LGBTQ+ community and be equipped to address complaints without bias.

Training and Awareness Programs

Conducting regular training and awareness programs that include information on diversity, inclusion, and LGBTQ+ issues can foster a more understanding and supportive workplace. Sensitizing employees to the experiences of LGBTQ+ individuals can contribute to a more respectful and accepting environment.

Non-Discrimination Policies

Organizations can implement explicit non-discrimination policies that encompass gender identity and sexual orientation. Such policies send a clear message that discrimination or harassment based on LGBTQ+ status will not be tolerated.

Supportive Work Environment

Creating a supportive and inclusive work environment involves fostering a culture where diversity is celebrated and all employees feel valued and respected. Open communication channels and support systems can contribute to a workplace where LGBTQ+ individuals feel safe.

Advocacy and Allyship

Encouraging allyship within the organization helps create a network of support for LGBTQ+ employees. Organizations can actively participate in LGBTQ+ advocacy initiatives and events to showcase their commitment to inclusivity.

Tata Steel: Leading the Way

Tata Steel emerges as a beacon among employee-friendly companies, consistently introducing policies that enhance the well-being of its workforce. Recognized as the Top Employer for LGBTQ+ inclusion by the India Workplace Equality Index in 2020, Tata Steel stands as a prominent ally of the LGBTQ+ community. Offering perks such as Mediclaim insurance covering partners irrespective of gender and sexuality, leave for new parents, and a robust Diversity & Inclusion program, Tata Steel’s commitment to workplace diversity is evident.

Protecting LGBTQ+: A Moral and Business Imperative

The journey toward safeguarding LGBTQ+ rights under the Sexual Harassment Act is both a moral and business imperative. While individual organizations can take steps to create an inclusive environment, legal frameworks, including the POSH Act, may need to evolve to explicitly address the protection of LGBTQ+ individuals from workplace harassment.

As we navigate this landscape, let’s remember that creating an inclusive work environment benefits everyone, leading to a more equitable and prosperous future.

If you are advocating to create a safe space for the LGBTQ+ community in your workplace, this Starter kit can be of great help.

Please reach out to us for any queries on Protection Of LGBTQ+.

For more blogs and articles, visit our official website. Contact us for workshops and queries related to POSHEAP (Employee Assistance Program,) and Diversity and Inclusion.

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