In India, the primary legislative instrument aimed at creating safe and dignified workplaces for women is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’). Although the preamble to the Act explicitly affirms the values of dignity and equality, the operative provisions define sexual harassment in narrowly circumscribed terms, failing to address systematic issues of sexism and gendered stereotypes at work.

Section 2(n) limits the scope to unwelcome physical, verbal, or non-verbal conduct of a sexual nature, including sexual advances, sexually coloured remarks, and requests for sexual favours. Section 3(2) supplements this definition by penalising specific circumstances such as threats to employment or the creation of a hostile work environment, but only when connected to sexual conduct. The Act therefore may enable redressal of individual complaints of acts of sexual harassment, but does not address broader patterns of sex-based harassment, such as sexism, gendered insults, gendered task-division, etc.

The POSH Act is rooted in a traditional understanding of sexual harassment as conduct motivated by unwelcome sexual desire. This perspective has been critiqued by feminist scholars, most notably by Vicki Schultz, who argues that sexual harassment should be understood more broadly as a mechanism for maintaining male dominance and reinforcing gender hierarchies in the workplace. Schultz’s reconceptualisation foregrounds the role of sexism (gendered stereotypes, limitation of opportunities to women, and reinforcement of traditional gender roles) in harassment. These systemic and structural manifestations of gender-based harm are not captured within the POSH Act, whereas there is an overemphasis on offences being tied to the sexual nature of conduct.

The recent decision of the Bombay High Court in Vinod Narayan Kachave v. The Presiding Officer (ICC) and Anr highlights the limitations of the current framework. In this case, the petitioner made a public remark likening a female colleague’s voluminous hair to a JCB machine and sang a song related to her hair. The Court held that it was difficult to construe the comment as having been made with a sexual intent, and declined to categorise the incident as sexual harassment under the Act. While it may be difficult to impute sexual undertones to this specific remark, the sexist character of the comment is readily discernible. In a professional setting, such a public and demeaning observation directed at a woman’s physical appearance undermines her dignity and reinforces gendered scrutiny in a professional setting. Further, in the same case, the petitioner also made a suggestive remark about another male colleague’s sexual performance in the presence of female employees. This incident, while overtly sexual in content, also reinforces a broader pattern that creates an uncomfortable and hostile environment—particularly for women—within the workplace. Such conduct directly contradicts the aim mentioned in the Preamble of the POSH Act, which is to further women’s right to live and work with dignity.  Women must be able to participate in public and professional life without facing sexism or constant sexualisation, both at and around them. Sexist or suggestive remarks create an environment of discomfort and exclusion, hampering both safety and dignity, and ultimately hinder workplace inclusion.

The Act’s failure to accommodate these forms of gender-based hostility stems from its limited focus on sexualised conduct, thereby excluding expressions of sexism, misogyny, and gendered disrespect which are common in Indian workplaces. Although these may not be acts of a sexual nature, they have the effect of marginalising women and reasserting patriarchal control over public and professional spaces. To better serve its normative promise, the POSH Act must be interpreted broadly or amended to encompass sex-based harassment or gender-based harassment, even in the absence of direct sexual content. In the POSH Act, a starting step could be to delink Section 2(n) from Section 3(2) and capturing the conduct in Section 3(2) independently as offences under the Act. This would mean that threats to employment (Sections 3(2)(i) -(iii)), creating a hostile work environment (Section 3(2)(iv)), and humiliating treatment affecting health or dignity (Section 3(2)(v)) directed at women could independently be made punishable, without requiring a link to sexual conduct. Thus, recognising sex-based harassment as a workplace harm would align the Act with its preambular commitment to dignity and equality, and would go a long way in ensuring respectful and inclusive workplaces for women.