Under the POSH Act, is it necessary for behaviour to be considered unwelcome by the recipient for it to be classified as sexual harassment?

In the context of Section 2(n) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the term "unwelcome" is a critical aspect of defining sexual harassment. It refers to any behaviour, act, or conduct that is not solicited or invited by the recipient and is regarded as offensive or unwanted by them.
 
Explanation of "Unwelcome"
For an act to be classified as sexual harassment under the POSH Act, the behaviour in question must be unwelcome to the recipient. The key elements are:

• Not solicited or invited: The person experiencing the act has not encouraged or consented to the behaviour.
• Subjective experience: The feeling of whether the conduct is "unwelcome" depends on the recipient's perception and comfort level. What might seem acceptable to one person could be offensive or distressing to another.
• Recipient’s reaction:  The  behaviour  is unwanted by the recipient, and the recipient may feel uncomfortable, humiliated, or threatened by it.

Examples of "Unwelcome" Acts
1. Physical Contact and Advances:

• Example: A co-worker places their hand on someone’s shoulder in an overly intimate way during a meeting, and the person feels uncomfortable. Even if the intent was casual or friendly, it becomes harassment if the contact is unwelcome.

2. Demand or Request for Sexual Favors:

• Example: A manager implies that an employee could receive a promotion if they agree to go on a date with them.  This is unwelcome if the employee feels pressured or harassed by the suggestion.

3. Sexually Coloured Remarks:

• Example: A colleague regularly makes jokes about another person's appearance, commenting on their body in a sexualized manner. Even if they claim it’s “just a joke,” if the recipient feels offended or embarrassed, it is unwelcome.

4. Showing Pornography:

• Example: Someone in the office sends an explicit image or video to a colleague without their consent.  If the recipient finds this inappropriate or uncomfortable, the act is clearly unwelcome.

5. Other Unwelcome Physical, Verbal, or Non-verbal Conduct:

• Example: A team member frequently sends flirtatious messages or gestures in a suggestive way, such as winking or blowing kisses, making the recipient feel uneasy or embarrassed.

 
How to Determine "Unwelcome"

• Objective vs. Subjective: While the  behaviour  can be assessed objectively, the key factor is whether the recipient subjectively finds the behaviour  unwelcome. Even if others don’t perceive it as inappropriate, if the recipient feels harassed, the behaviour can be deemed sexual harassment.
• Power Dynamics: In situations where there is a power imbalance (e.g., between a manager and a subordinate), behaviour  can be more likely to be interpreted as unwelcome because the recipient may feel pressured or coerced.

 
Signs of Unwelcomeness

• Verbal or Non-verbal Reactions: The recipient may explicitly tell the harasser to stop or may exhibit discomfort through body language (e.g., moving away, avoiding interaction).
• Withdrawing Consent:  If someone initially appeared to consent to certain  behaviour  but later expresses discomfort or withdraws consent, continued behaviour can become unwelcome.

 
Conclusion
The definition of "unwelcome" is essential to recognizing sexual harassment under the POSH Act. Even if the perpetrator claims that their actions were meant to be harmless, it is the recipient’s experience and reaction that determine whether the conduct qualifies as harassment. An act becomes unwelcome if the person subjected to it perceives it as undesirable, regardless of the intention behind it.

Disclaimer: This document is for educational purposes only and does not constitute legal advice.

​Shekhar Ganagaluru
MSW, LLB, Dip. T&D
HR & IR Specialist | Published Author | Storyteller | Mentor |
Trainer | Community Outreach Coordinator |
​Workplace Safety & Motivation Strategist

Unwelcoming Behaviour
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