The Inefficacy of Internal Complaint Mechanisms in Resolving Sexual Harassment Claims – A Study in the Context of Sexual Harassment Law and #MeToo in India
Megha Mehta*
Volume 14 Issue 3 (2021)
The #MeToo movement in India suggests that in spite of the Vishaka guidelines, and the enactment of the Sexual Harassment of Women at Workplace Act, 2013, the Indian legal system has been ineffective in redressing sexual harassment claims. This paper argues, drawing on Professor Vicki Schultz’s theory for reconceptualising sexual harassment, that the sexual harassment law in India has failed, as it is based on a ‘desire-dominance’ paradigm. Under this paradigm, sexual harassment is conceived as a problem of unwelcome sexual behaviour rather than an indicator of broader workplace gender discrimination. Hence, internal complaint mechanisms are usually ineffective in redressing harassment as they focus more on penalasing individual sexual misconduct than holding employers responsible for remedying a hostile work environment. Moreover, these mechanisms are constituted of persons who may imbibe the same discriminatory attitudes as the respondent. Consequently, even though these mechanisms are meant to be a less onerous substitute to criminal trials, they end up replicating the costs of judicial proceedings for complainants. Hence this paper argues that the legal definition of sexual harassment ought to be changed to one that penalises all forms of behaviour which create a hostile work environment based on gender. Further, that internal complaint mechanisms should be substituted by external bodies which can regulate discriminatory employment practices. These bodies should be empowered to not only take action against employers but also provide an integrated range of remedial options to complainants.