Introduction

Sexual harassment is a very old behaviour endured by African and Asian-American females during the slavery era (Mackinnon and Siegel 2004, p. 3), World War II, the Korean, and Vietnam wars (Davar 1999, p. 38). It was common for white males to sexually exploit females of colour in ways that should not be overlooked in this era in any professional field (Baker 2004), especially within the legal profession.

According to the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (In.) S. 2n (SHWWPPRA):

Sexual harassment denotes any one or more of the following unwelcome acts or behaviours (whether directly or by implication) namely: (i) physical contact and advances; or (ii) a demand or request for sexual favours; or (iii) making sexually coloured remarks; or (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature;

The Equality Act 2010 (UK) S. 26(1–3) (EA), inter-alia, defines harassment in the workplace into three sections. The first deals with unwanted conduct that is non-sexual in nature but the purpose is to intimidate, offend, humiliate and violate the dignity of the recipient. In other words, it is referred to as sex-discrimination or gender harassment. The second deals with unwanted conduct that is sexually inclined and purposed to frustrate, degrade, humiliate, offend and violate the dignity of the recipient. This could be referred to as sexual harassment. The third deals with the consequences of both unwanted sexual and non-sexual conducts, that is, the negative effect of succumbing or refusal of sexual harassment, gender harassment or reassignment. This could be referred to as hostility of environment having refused or agreed to any of the harassments.

Sex Discrimination Act 1984 (Austl) S. 28A (SDA) as amended, defines sexual harassment, inter-alia, as any unwelcome sexual advances directed at a person or request for sexual favours or engagement in other sexual conducts (physical, oral or written) to humiliate, offend and intimidate the recipient. Similarly, Section 5(1)(a)–(c) of the SDA defines sex discrimination, inter-alia, as the act of treating a person in a less favourable manner by reason of his or her sex. This is also known as gender discrimination in other jurisdictions like in the United Kingdom; but the Australian definition of sexual harassment and gender discrimination is not compressed in the same section and division. Also, Canada Labour Code (R.S.C., 1985, c.L-2) S. 247.1 (CLC) Division XV.1 of Part III defines sexual harassment, inter-alia, as any sexual conduct, comment, gesture, or contact likely to humiliate, offend, or could be intuited based on credible evidence by the recipient as a condition of employment, training and promotion in the workplace. By virtue of the Equal Employment Opportunity Commission (EEOC) through Title VII of the Civil Rights Act of 1964 (US) (CRA) as amended, sexual harassment is any unwelcome sexual advances, requests for sexual favours (verbal or physical) or any conduct expressly stated as a condition for employment; Or such acceptance or rejection affect the recipient’s employment and consequently create a hostile environment for the recipient.

In explanation, most definitions differ according to their jurisdictions as some jurisdictions classify gender discrimination as a form of sexual harassment; others see it as a form of harassment or discrimination in the workplace with similar consequences; and this makes most people to have a misconception of sexual harassment as gender discrimination. These two terms are however different because sexual harassment is of a sexual nature while gender discrimination could either be sexual or non-sexual in nature, but they both occur in the workplace and can hardly be separated. Besides, various researchers adopt different definitions in their research and that further complicates the understanding of the matter. For instance, some researchers referred to gender discrimination as the commonest type of sexual harassment in the workplace which could be perpetrated by same-sex or opposite sex (Berdahl 2007b; Fitzgerald and Ormerod 1991), but regarded it as a hostile behaviour that devalues a person based on sex or gender (Holland et al. 2016; Stamarski and Son Hong 2015) such as, using words like ‘useless set of girls’ (Aina-Pelemo et al. 2018), ‘bitch’ ‘asshole’ or cracking derogatory jokes.

This indicates that sexual harassment varies from country to country and across different work settings. In a study conducted among 7603 employees and 1041 supervisors selected from five (5) Danish workplaces, 95% uncovered that sexual harassment from clients or customers and from supervisors and colleagues tends to create higher level of depressive indicators (Friborg et al. 2017). Forty percent of 340 women surveyed from all career levels and fields by Lindquist and McKay (2018) in USA, experienced sex-based harassment and sexual harassment, ranging from sexual advances, stalking to sexual assault. Of the 6206 British adults surveyed by BBC (2017a), 40% women and 18% men experienced one or more forms of sexual harassment in the workplace. Moylan and Wood (2016) also reported that 55% of 515 participants of their USA sample frame had experienced at least one form of sexual harassment or the other. Similarly, 62% of 500 medical staff studied in Saudi Arabia reported to have been sexually harassed in their workplace (Aljerian et al. 2017). In two surveys conducted in New South Wales and the Australian Capital Territory, 58% of 374 and 82% of 440 participants respectively reported to have experienced sexual harassment (Llewellyn et al. 2018).

In Malaysia and Lebanon, Siti et al. (2015) and Hussin (2015) respectively reported occurrence of sexual harassment in hospitality workplaces. The presence of sexual harassment in Republic of Kosovo was also established by Kamberi and Ramiqi (2017) and Kamberi and Gollopeni (2015) respectively in the in-depth interviews conducted among 47 interviewees from private/public sectors, and occurrences are 60% higher in the private sectors. The Manchester Centre for Regulations and Governance [MCRandG] (2013) observed the rampage of sexual harassment among uniformed officers, especially police officers. Castro et al. (2015) emphasised on the pervasive occurrence of sexual harassment and assault within the USA military services. Of the 200 women managers from various organisations of India surveyed by Sahgal and Dang (2017), it was also found that 15% experienced sexual harassment. Likewise, in Indian educational sphere, occurrence of sexual harassment is a fact (Aina and Kulshrestha 2017; Anju 2015; Das and Pratap 2015).

All these studies indicate the prevalence of sexual harassment in various countries and work settings. In all of these, the legal domain is not exempted from sexual harassment despite the significance of its’ role to ensure the peace and order in the society. Out of the 561 participants surveyed by Aina-Pelemo et al. (2019) among the Nigerian Legal Professionals, 68% female and 32% male experienced sexual harassment. From the American Bar Association [ABA] (1990) survey conducted on Young Lawyers Division, Laband and Lentz (1998) reported that 26% of 604 male attorneys and 66% of 140 female attorneys practising in law firms experienced one form of sexual harassment from their colleagues, supervisors, and clients. Tengku and Maimunah (2000, p. 71) found that 78% male and 85% female young lawyers admitted to have experienced one form of professional related sexual harassment. In another survey of the [ABA] conducted by Rhode (2001), approximately 50–66% of female lawyers, and 25–50% of female court personnel testified to have experienced sexual harassment. Meanwhile, in 1992 professional construction of anti-harassment policy was introduced by [ABA] to tackle sexual harassment. Still, sexual harassment is a problem in the profession (Lazar 2016; Long 2016). Another [ABA] survey conducted among 3000 respondents majorly of whom are from law firms, revealed that 68% females and 19% males reported to have experienced sexual harassment at workplace, and 52% females and 27% males did not report because of the fear of retaliation (Rubino 2018). Significantly, 47% females and 30% males said that they work in an organisation that tolerates sexual harassment (Rubino 2018).

A recent survey conducted jointly by the Women Bar Association, Massachusetts and Rikleen Institute between February and April 2018, also revealed the various behaviours that exist in the law firm setting which negatively impact the professionals and co-workers: 21.56% of 1243 participants were victims of unwanted physical touch, ranging from—back or shoulder rub, hug, grope, kiss, to lewd comments, and 38% received unwanted email/text of a personal or sexual nature involving—sexual jokes, demeaning comments about physical look, body size, gender, race, and explicit romantic advances. Also, 40.23% had witnessed their colleagues or groups of people been subjected to sexual jokes. Unfortunately, majority of these behaviours was not reported by the victims due to the profession structure and culture of tolerance to sexual harassment in the law firm (Rikleen 2018). The chair, [ABA] Commission on Women in the profession further introduced and the house of delegates adopted Resolution 302 in February, 2018 which set formal policies to combat retaliation after reporting sexual harassment, and envisaged zero tolerance of sexual harassment in the American legal profession (American Bar Association 2018).

English solicitors are also subjected to overt and covert hostility, and illegal discrimination by gender, race, class, ethnicity, payment, and sexual harassment; but sexual harassment was rarely challenged due to the importance of personal relations and reputation (BBC 2017b; Sommerlad 2012; Nicolson 2005). Similarly, in a recent report by Financial Times (2018), 42% of 1000 female lawyers surveyed admitted to have experienced one form of sexual harassment ranging from suggestive comments to propositioning and unwanted physical contact while working in some UK law firms. It was further revealed that the reason for less report of sexual harassment within the profession could be due to the non-disclosure agreement imposed on the employees by the employers which restrains the victims from speaking of happenings after been harassed. Other reasons why victims do not report sexual harassment incidence are: victim-blame, fear of retaliation or termination, or being taken unserious, or tagged as trouble makers, shame, power differences, demotion or lack of advancement in career, further victimisation, and lack of information (Lindquist and McKay 2018; Buchanan et al. 2014). However, the English solicitors have been provided with the 2016 professional regulation to eradicate sexual harassment within the profession in order to secure and help them handle complaints against sexual harassment (The Bar Council 2016).

A Canadian study conducted by Brockman (1992b), revealed that 57.7% of 600 females and 25.3% of 1798 males experienced unwanted sexual advances by other British Columbia lawyers. The 1990–2002 longitudinal survey of Ontario lawyers revealed that subtle sexual harassment and gender bias exist in all sectors of the profession despite the 1991–1996 policy initiatives of law society of Upper Canada on harassment (Kay et al. 2004). Out of the 1178 respondents surveyed by the Women’s Legal Education and Action Fund (LEAF), 60% had experienced gender harassment, 30% experienced sexual harassment, 21% experienced violence, and 3% experienced sexual violence in the workplace (Government of Canada 2017). In another Canadian survey conducted among 451 participants, 54% experienced sexual harassment in the course of pursuing their career, 30% experienced conducts of a sexual nature that could be perceived as a ground for promotion or training at their workplace, and majority did not report because of low expectations for significant action from the Management or Authority in charge (Insights West 2017).

In Australia, Victorian Equal Opportunity and Human Right Commission [VEO&HRC] (2012) conducted a survey which showed that 23.9% of 100 respondents experienced sexual harassment while working as lawyers or legal trainees in Victoria. Mundy and Seuffert (2017) reported that ingrained sexual harassment is still a challenge in the Australian legal profession. The survey conducted by the International Bar Association among lawyers from Europe, Africa, Asia, America and Oceania revealed that 27% women and 7% men of 114 respondents experienced sexual harassment and 67% women and 10% men experienced gender-discrimination in various jurisdictions (Ellis and Buckett 2017).

In India, Mishra (2016a, b) and Mahapatral (2014) reported that sexual and non-sexual harassment is the hidden dirty secret of the Indian legal profession, and it is experienced by female lawyers and judges. In December 2012, an intern female law student was sexually harassed by a Judge of the Supreme Court (Kothari 2013). Gender harassment is also a major challenge in the Indian legal profession. Some clients prefer women to draft their court proceedings, but to be argued by men in court (Mishra 2016a, b), implying that women do not possess the aggressive skills like men to handle litigation.

As it was in most Commonwealth countries (Ellis and Buckett 2017), India has a strong history of resistance of women from the legal profession until the Legal Practitioners Women Act 1923 (In.) (LPWA) was passed (Mishra 2015). However, the Indian law practice domain remains a male-dominated one. According to the 1970–2010 records of Indian advocates, out of more than 436,813 advocates in law practice, only 22,966 were female (Ethan 2013). Banererjee (2016) also notes that the Supreme Court of India have only 1 female judge out of 25 serving judges. Ghosh et al. (2018) avers that there is about seventy-one percent of male and twenty-seven percent of female in the Indian lower judiciary. Significantly, in 8 distinct High Courts of India, there are no female among the judges and of the twenty-four (24) High Courts across India, only 10% are female judges (Ghosh et al. 2018). Approximately 10–15% of 17,000 advocates enrolled with the Bar Council of India are females and only 12 females out of 362 are senior advocates (Supreme Court of India 2017; Mishra 2016a). In essence, females are not only underrepresented, many of them are working in a male-dominated institution, which makes them more vulnerable to diverse harassment.

Bhat and Deshpande (2017) posit that the major causes of sexual harassment are: male domination of the workplace, the masculine gender role, sex role stereotypes, and tolerance of sexual harassment by victims. However, in India, there are other covert causes of sexual harassment in the legal profession, ranging from; traditional gender inequalities rooted in most male advocates and even among the judges (Mishra 2016a, b), imbalanced sex-ratio due to sex-selection in the society (Aina-Pelemo and Saluja 2018), patriarchal structure of the society (Kohli 2017; Tukaram 2016; Schultz et al. 1999), cultural norms (Hills and Marshall 2018), caste system, to religious identity (Mishra 2015).

It is pertinent to note that the 1997 Indian Supreme Court decision rendered in Vishaka and Ors v. State of Rajasthan and Ors (1997) facilitated open discussions of sexual harassment in the Indian legal jurisdiction. In this case, a woman was gang-raped openly because she was carrying out her obligation as an employee to stop child marriages within a certain community. At the High Court, she was denied justice, and a group of people filed public litigation on the issue before the Supreme Court, while delivering the verdict, the Court came up with Vishaka Guidelines to serve as a guide for prevention, prohibition and redressal of sexual harassment pending the enactment of a domestic legislation to combat the problem (Aina and Kulshrestha 2017). However, no domestic legislation ever came into existence until about (16) sixteen years after the issuance of the Vishaka Guidelines, and this was prompted by another macabre incidence of Nirbahya in which the victim was gang-raped brutally in a running bus and injuries were also inflicted on her companion (State v. Ram Singh and Ors. 2013). This latter case marked the beginning of effective measures to tackle sexual offences that led to the enactment of the SHWWPPRA.

Still, sexual harassment remains rife in the society, the first female Solicitor General of India in her interview with Mishra (2016a, b) revealed that she was sexually harassed two (2) years ago at the Supreme Court corridor, undermining her age and status. This implies that high socio-economic or educational status does not protect females from being sexually harassed. Hence, sexual harassment is a disorder that female advocates are vulnerable to, the very moment they start practising law under the supervision of any superior (Kannan 2013). Correspondingly, the study conducted on ‘Females in the Indian Courts of Law…’ by Mishra (2015) explained the main problems faced by females of this profession as: less participation, family pressure, gender harassment and sexual harassment. However, he did not pose any direct question on sexual harassment in his survey.

From the incidence records of sexual harassment in the legal profession globally, varying from UK, America, Australia, to Canada, it could be observed that substantial research have been conducted in these countries (Sommerlad 2016; Kay and Gorman 2012; Dinovitzer and Garth 2007; Beckman and Phillips 2005), and sexual harassment is rife among lawyers in general and no legal jurisdiction is free from it. Nevertheless, little or no research was conducted in India as it relates to the subject matter, and majority of those reported are based on news articles. Hence, this study seeks to fill the gap.

On the other hand, it is worthy of note that the SHWWPPRA enactment was proposed to protect only the working females in India. Does this mean that males are not sexually harassed? If they are, do they not need to be protected? Male sexual harassment denotes unwanted sexual attention, sexual coercion, and gender harassment from same-sex or opposite sex (Holland et al. 2016; Donovan and Drasgow 1999; Fitzgerald et al. 1999; Waldo et al. 1998). Male sexual harassment could be in five (5) major forms: sexual coercion, unwanted sexual attention, lewd comments/sexual jokes, negative remarks, and harassment for engaging in feminine conduct, but mostly perpetrated by male (Scarduzio et al. 2018; Russell and Oswald 2015; Berdahl et al. 1996).

Also, males experience two (2) types of gender harassment: traditional maleness and heterosexual man role (Waldo et al. 1998). The former is when a man is humiliated for acting like a woman or not been manly enough and the latter is when a man admires person of opposite sex which seemingly frustrates any man who approaches or tends to approach the person (Waldo et al. 1998). In fact, the first sample (378) drawn among the three stratified samples studied by Waldo et al. (1998), identified 52.7% males as the perpetrators of sexual harassment, compared to 30.1% females identified as perpetrators, and 17.2% identified both genders as the perpetrators. Hence, both genders experience and could be perpetrators of sexual harassment, but what could be viewed as sexual harassment to women might be different from that of men, and the type of harassment might be determined by the perpetrator. Consequently, the level of experience should not be measured on the same scale (Donovan and Drasgow 1999).

Several studies also showed that males experience sexual harassment just as females; of 175 participants, approximately 53% males and 76% females admitted to have experienced sexual harassment (Berdahl 2007a). Fitzgerald et al. (1999) also found that 38% males and 78% females of 28,000 participants experienced at least one form of unwanted sexual behaviour or the other, preceding 12 months of their study. Of 200 Indian future professionals surveyed by Banerjee and Sharma (2011), 8% male and 16% female experienced sexual harassment. Within the legal profession, research has established the prevalence of sexual harassment of men and women (Ellis and Buckett 2017; Tengku and Maimunah 2000; Laband and Lentz 1998; Brockman 1997; Brockman 1992a). All these surveys imply that men are vulnerable to sexual harassment as much as women (Russell and Oswald 2015).

It is a fact that men are more likely to be the harassers than the harassed (Spencer and Barnett 2011), and they perceive sexual harassment as a social-sexual behaviour (Berdahl et al. 1996). Still, excluding men from the legal protection suggests that Indian women do not sexually harass men nor can men sexually harass other men. Understanding the prevalence of male sexual harassment globally is very essential with the growing rate of same-sex relationships and harassment (lesbian, gay, bisexual, transgender etc.) in the workplace (Page and Pina 2018; Scarduzio et al. 2018; Hagopian et al. 2017; Quick and McFadyen 2016; Becton et al. 2016; Berkley and Watt 2006). Moreover, the industrialisation and high level of sexual violence occurrences that have plagued the Indian labour system has necessitated the survey of sexual harassment occurrences in the legal profession by gender. The recent decriminalisation of ‘gay sex’ which falls under ‘unnatural offense’ in the Penal code (1860) S. 377 (In) (PC) by the Supreme Court of India, in the case of Navtej Singh Johar and Ors. v. Union of India thr. Secretary Ministry of Law and Justice (2018) also triggers the question of whether there is a need for legal protection of male in the work environment as female.

Since the legal professionals are the conscience keepers of the society, the researchers seek to examine three major issues: whether the experience of sexual harassment within the Indian legal profession is gender-biased; whether sexual harassment affects the growth of the Indian legal profession; and to seek the perception and enforcement status of the SHWWPPRA among the legal professionals.

Research Questions

  • What is the impact of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (In.) (SHWWPPRA) among the Indian Legal Professionals?

Research Hypotheses

  1. a.

    The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act 2013 (In.) (SHWWPPRA) is legally and significantly enforced in India.

  2. b.

    Sexual harassment affects the growth of the Indian legal profession.

  3. c.

    It is only females that are sexually harassed in the Indian legal profession.

Method

Participants

The participants for this study were drawn from among the legal professionals that have been called to the bar as advocate by the Indian Bar Council. They involve those practising in private law firms (private practice), those working for the Government under (the Ministry of law and justice), those working in the Courts (the judicial staff), those currently pursuing their post-graduate study (Professional student), and those currently in the teaching line (Professors and Associate Professors).

Measures and Procedure

A cross-sectional study was conducted among a sample of male and female advocates in selected areas in Delhi ‘NCR, India. Data collection occurred between January to February 2017 using online questionnaire via Google Drive and subsequently disseminated within the Indian legal fora, such as Facebook, emails, LinkedIn, and WhatsApp without any incentive. The survey questionnaire titled: ‘Questions on the Study of Sexual Harassment Laws in India’ was structured to access the effectiveness of the SHWWPPRA among the legal professionals. Due to the sensitivity of the topic and calibre of participants surveyed, the question was prepared in anonymity, that is, nameless, without a trace to any of the participants. It started with self-introduction, introduction to the study, its purpose and consent request, followed by the questions.

Of the 600 questionnaires distributed, 347 provided adequate information for this study. The survey method for data collection was similar to Haas et al. (2009) with the exclusion of incentive. Two different sampling techniques: purposive and stratified systematic samplings were used based on characteristics of the population and the objectives of the study which involve a target variable (advocates). However, due to low response rate for internet survey, during the period of March to August, 2017, a paper-based questionnaire was employed. It was distributed among selected advocates drawn from Ghaziabad District Court, District court of Greater-Noida, Supreme Court, Dwarka District Court and from advocates in Indian Law Institutes who spread across Delhi ‘NCR.

Data Analysis

For simplicity, the closed-ended, open-ended and multiple-choice questions were 29 in number, grouped into five measures and produced in order of their appearance in the model: demographic information of the population, significance of the SHWWPPRA, legal enforcement of the SHWWPPRA, gender and sexual harassment, coupled with sexual harassment and the legal profession. This questionnaire was prearranged in line with the study conducted to assess the bias of gender in Canadian legal establishment and Australian legal profession (Kay and Brockman 2000; [VEO & HRC] 2012) with slight modifications. Data analysis was carried out using IBM Statistical Package for Social Science (SPSS) 21. Descriptive statistics such as frequencies and percentages were used to compute the participants’ demographics and other measures (Berdahl et al. 1996), Analysis of variance (ANOVA), Chi square and partial correlation analysis were also used. Cronbach Alpha coefficient was employed to assess the reliability of the questionnaire used for the study.

Results

Preliminary Analyses

Internal consistency of items from the research instrument (questionnaire) is shown in Table 1. These values ranged from 0.71 to 0.86, which falls within the acceptability level (r > .7).

Table 1 Reliability analysis of the research instrument used
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Demographic Information of the Participants by Gender

Table 2 depicts that 58.8% male and 41.2% female Indian Legal Professionals across Delhi NCR’ participated in this study. The cross tabulation shows that, of male participants, majority are married (73.2%), as compared to female participants who are unmarried (50.3%). This indicates that there is a high rate of married male in the sampling as compared to the female with the highest rate for unmarried status. There is a variation between gender distributions by institution as majority of the population works in Private Practice (male = 70.6%; female = 54.5%). It could be inferred that there is a high response rate for the males in Private Practice and MLJ, compared to the females. Overall, the effect size representing gender differences based on their institution is less significant (Hedges’ g = 0.396, p < 0.05) which indicates a clear difference between males and females with respect to job designation at the significant level of 0.387. A majority (66.0%) are advocates practising in private law firms. Male dominance is seen in job designation, specifically among the Senior Advocates, Advocates and Judicial Staff. While a higher female proportion is Professional Student and Professors/Associate Professors, also the total effect size of gender had a small effect on their job designation with the significant difference of 0.387.

Table 2 Participants’ characteristics as function of gender
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Majority (57.4%) of the total participants are within the age group of 20 and 30. However, the difference in age between male and female was statistically significant with a medium effect size. There is a clear difference between male and female participants’ age ranging from ‘30 years and above’ which is higher for male. This indicates that there are younger females as compared to male in the profession.

Hypothesis 1

The SHWWPPRA is significantly and legally enforced in India.

Based on the specific responses of the participants, majority of the respondents (57.1%) do not think the SHWWPPRA is significantly enforced and 42.9% affirm that it is significantly enforced; also many participants (48.1%) agreed that the significant cause is lack of enforcement mechanism. In addition, of the participants (N = 341), 36.7% said the SHWWPPRA is effective, 30.2% said it is not effective and 33.1% said it is less effective. 86.3% of total participants opined that lack of awareness makes people fall victim of sexual harassment. This denotes that the provisions of the SHWWPPRA are not fully understood by the advocates.

The correlation analysis of the participants’ responses between the significance and enforcement of SHWWPPRA in curbing sexual harassment at workplaces in India in respect to awareness of SH was assessed. The correlation depicts that there is a significant inverse relationship between the significance and enforcement of SHWWPPRA in curbing sexual harassment at workplaces in India and its awareness (p < 0.05; r = − 0.124). Based on the participants’ views, this also implies that lack of awareness is associated with greater enforcement of the law.

The effect of participants’ gender, age, marital status, institution and designation (fixed factors) on their perception of how the SHWWPPRA is effectively enforced and its effectiveness in curbing sexual harassment at workplaces (dependent variables) was evaluated by Chi square analysis (Table 3). The participants’ perception on how the SHWWPPRA is effectively enforced and its effectiveness in curbing sexual harassment at workplaces was significantly affected by gender and age (p < 0.05), however, it was not affected by marital status, institution and designation (p > 0.05).

Table 3 Effect of participants’ demographic information on their perception on the legal enforcement of the SHWWPPRA
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Hypothesis 2

Sexual harassment affects the growth of the Indian legal profession.

Of the total participants (N = 347), majority (76.4%) disagreed that sexual harassment affects the growth of the Indian legal profession despite the legislative provisions on sexual harassment in India. Based on these responses, Table 4 indicates that their perceptions on the effect of sexual harassment on legal profession are not statistically different in terms of age, marital status and institution (p > 0.05). Although the majority of the participants see sexual harassment as a barrier to development in the legal profession, there is significant difference with gender (females perceive sexual harassment more than the males) and in designation (there is higher perception among Professors, advocate and students).

Table 4 Influence of participants’ characteristics on their perception of sexual harassment and the growth of the Indian legal profession
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In response to whether they were privy to any form of sexual harassment experienced by their colleagues, 78.6% of the total participants disclosed that their colleagues have experienced one or more forms of sexual harassment at the workplace.

Hypothesis 3

It is only females that are sexually harassed in India.

The independent t test (t = 0.840; p > 0.05) between the groups suggested that there is no significant difference by gender on the opinion of the participants on whether it is only the females that are sexually harassed in India (Table 5). Also the table depicts that the participants’ perspective on the opinion that males need to be protected by the SHWWPPRA is not significantly different with respect to their gender (p > 0.05) as majority (males-70.1%; females-66.4%) are of the view that males need to be equally protected like females. It is worth noting that 23.3% of the study population admitted to have experienced one form of sexual harassment at workplace, ranging from unwanted deliberate touching; turning work discussion to sexual topics; asking personal questions about sexual life; sexual comments about the person’s clothing or look; to unwanted sexual looks or gestures; while, majority (76.6%) said they have no experience of such, and of those who admitted to have experienced sexual harassment, 62.9% were females, and 37.1% were males.

Table 5 Sexual harassment and gender differences
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Discussion of Findings

On the first supposition of this study, our finding is in contrast with our postulation that the SHWWPPRA is significantly enforced in India. This could be attributed to the following reasons; insufficient legal provisions to eradicate sexual harassment within the profession, gender discrimination, unequal gender composition of court staff, judges and the prosecutors, delayed court hearings due to adjournments, slow execution of the court judgment or remedies granted to the victims, and insecurity of victims and witness during court trials. This finding is similar to a study by Federal Provincial Territorial Senior Officials for the Status of Women [FPTSOSW] (2015) which reported that the Criminal Code of Canada 1985 (CC) is less effective due to the unclear language of the public documents, which did not differentiate the forms of sexual violence. Canadian Centre for Justice Statistics [CJS] (2017) reported that within 2004–2014, the self-reported sexual assault remained unchanged due to the different definitions of sexual assault in the Criminal Code (CC).

Mackay (2009) also revealed that SDA had an impact on most overt forms of sex discrimination but has been less effective in addressing “systemic practices or patterns of behaviour that have been absorbed into the institutions and structure of the society, that perpetuate disadvantage for a particular group”. Likewise, the effect of Sex Discrimination Act 1975 (UK.) regarding sexual harassment in the workplace was less effective in the absence of a definition for sexual harassment and clear consequences for non-compliance (Nicolson 2005; Samuels 2004). This was the case until it was amendment by the EA. Even after the amendment, the condition of reasonableness and unwelcome behaviour attached to the legal definition might pose a challenge for victims to establish the claim of sexual harassment (Fitzgerald 2004; Samuels 2004). From the foregoing, enacting the Sexual Harassment Act cannot eradicate sexual harassment from the society, without considering the complaint handling process, the clarity of the law, regular evaluation of its impact on the society, and eradicating the absorbed traditional practices or patterns of behaviour that are or can likely hinder the effectiveness of the legislation.

On the second supposition of this study, as postulated, sexual harassment affects the growth of the Indian legal profession and that is one of the major reasons for gender imbalance in the profession. Corroboratory, Advocate Malika and Advocate Charvi (personal communication, August 17, 2017) asserted that they left law practice for academics because of sexual harassment experienced and male dominance of the profession. The male dominance could also be seen in the percentage of male in Private law practice and Judiciary in the current study. Similarly, the 2008 total statistics of 1,052,290 Indian legal professionals surveyed by Krishnan (2010) from about 20 regions, only 11 regions reported their data gender-wise, and the number of females was relatively low in all. Comparatively, 1970–2010 statistics of the advocates in Indian law practice also shows preponderance for the male gender (Ethan 2013). Also, there was a presentation of a staggering figure of 436,813 male advocates compared to 22,966 female advocates within the total number of nearly (1,300,000) Indian legal professionals enrolled by the Indian Bar Council in 2011 (Legally India 2013). Similarly, of the 651 districts, there are 71.4% males and 27.6% females in the Indian lower judiciary, and at the highest level; only one (1) female serving out of 25 Judges (Ghosh et al. 2018; Banererjee 2016; Mishra 2016a).

Despite the feminisation of the Indian legal profession since 1922, coupled with the rate of females being admitted into the school of law (Mishra 2016b), females are still underrepresented in the profession. It is also an established fact that sexual harassment is a major challenge coloured with negative impact, especially as it relates to career development for the females within the legal profession (Ellis and Buckett 2017). Sexual harassment could be a reason the females are quick to exit the profession, thereby disrupting the growth of the profession. Founded on previous research, females working in male-dominated organisations are at greater risk of sexual harassment as compared to more gender-balanced workplaces (Scarduzio et al. 2018; McDonald and Charlesworth 2015; Russell and Oswald 2015; Haas and Timmerman 2010). The survey on Indian female advocates and their work life satisfaction revealed that the restlessness attached to sexual harassment motivates the participants to easily opt out of the legal practice (Kannan 2013), and some Indian female advocates go to the extent of committing suicide after becoming an object of sexual harassment in the workplace (Ailamma 2000).

In conformity with this study, Brockman (1992b) found that about 39% of 600 British Columbia female lawyers studied, left law practice due to numerous reasons including sexual harassment. As reported by the 2006 State Bar of California online survey, 73% female attorneys encountered gender discrimination, 61% reported unwanted touch from male Attorneys, 75% complained of gender inequality with male Attorneys, and 50% reported sexual harassment (Chang and Chopra 2015). So, those were part of the reasons for mass exodus of the California female lawyers from law practice (Chang and Chopra 2015). Similarly, Davis (2018) reported that the immediate past American Bar President, Bass and other Attorneys observed the reduction in the number of female legal practitioners and predicted the reasons why they quit career in law firms to include discrimination and sexual harassment among others. Of 1350 participants, 52% Florida female Attorneys that have left reported that they left as a result of the toxic work culture, (involving bully and harassment), and the complexity of the profession alongside family life (Florida Bar Organisation 2017). While the males on the other hand, left for other reasons, majorly for the desire to diversify their skills (Brockman 1994; Kay and Brockman 2000).

Therefore, career development is nearly impossible for females in a workplace rife with sexual harassment, gender discrimination, and male-domination. All these indicate that unwanted sexual behaviours overtly influence female advocates’ intention to exit the profession and covertly disorganise their interest in the job. In line with our results that sexual harassment affects the growth of legal profession, plethora of researches of other law jurisdictions documented that the presence of sexual harassment in the legal profession tends to affect the job satisfaction and earnings of the female lawyers which influences their intention to quit law practice (Rikleen 2018; Davis 2018). Merkin (2008) notes that employees that are victims of sexual harassment in Argentina, Brazil and Chile have more turn-over intentions and engaged more in absenteeism.

The structure of the legal profession that indulges the harassers and silence the victims especially when the harasser is a rainmaker or superior (Ellis and Buckett 2017), and the level of knowledge acquired by the victims, make it nearly impossible to report issue of sexual harassment (Lazar 2016), and in so doing, it encourages the act (Page and Pina 2015). It is well-known that complaint against a senior lawyer or judge has huge repercussions on the victim’s legal career, except the organisational leadership set a climate and tone that is not conducive for such behaviours (Buchanan et al. 2014). Generally, victims of sexual harassment do not report due to fear of retaliation, embarrassment of being judged, not being believed, shame, psychological trauma, among others (Buchanan et al. 2014).

This study shows that 188 (54.2%) participants did not report when harassed due to protection of reputation, avoidance of negative attitude resulting from complaints, cultural constraint, stigmatisation, humiliation, unnecessary attack, and fear of unemployment. Hence, in combating sexual harassment in the workplace, organisational intolerance to sexual harassment, equal gender composition and professional regulatory policy are essential. These could change the gender imbalance within the Indian legal profession and also reduce occurrences. Having sworn during the Indian call to Bar by virtue of Part VI, Chapter II, Pages 45–59 of the provisions of Bar Council of India Rules, on professional standards and etiquette (under section 49(1)(e) of the (AA) to uphold the rule of law, there should be zero tolerance of sexual harassment within the profession. It should be specified in the Rules as “misconduct” punishable in accordance with section 35 of the (AA).

On the third supposition of this study, the result implies that despite the conservative cultural system of India, the males are also sexually harassed as the females, but unfortunately, we did not ask the gender of the harassers which is a gap for further research. Yet, the SHWWPPRA protects only females. This finding is in line with previous research as follows: of the three separate organisations male sample (378, 209 and 420) drawn by Waldo and colleagues, less than fifty percent of total participant experienced sexual coercion, unwanted sexual attention, and gender harassment from mostly males (Waldo et al. 1998). In another study conducted by Donovan and Drasgow (1999) among 22,399 females and 5855 males, it was observed that the experience of sexual harassment on both genders differ according to the scale scores used in the measurement. This implies that the measurement of sexual harassment between genders cannot accurately be measured on the same grounds, but it could be measured in a more modified way in different organisational structure. Hence, all genders have faced or are likely to face sexual harassment, but the commonest form is harassment from male to female (Scarduzio et al. 2018; McDonald and Charlesworth 2015; Russell and Oswald 2015).

Street et al. (2007) also found that males experience sexual harassment just like females, but female’s experience is higher, and both genders are associated with depression and anxiety symptomatology. However, in the case of higher levels of harassment, males have a higher symptom of anxiety and depression in a male-dominated environment. This indicates that the overall impact of harassment is approximately the same for both male and female depending on the gender composition in work-setting. Similarly, Fitzgerald et al. (1999) found that the internal consistency factor used in measuring sexist hostility and sexual coercion between males and females are similar. It is also pertinent to note that same-sex harassment is a growing phenomenon across the globe (Page and Pina 2018; Hagopian et al. 2017). Based on all these findings, the focus should be on creation of equal opportunity for both genders. Therefore, excluding males from sexual harassment legal protection in India indicates there is no uniform protection for everyone in employment and that could be regarded as sex-discrimination which could further appear as a violation of the males’ constitutional right to equal protection of laws as enshrined in the Constitution of India 1950 (In.) Art. 14 (The Constitution).

The response of some participants to the open-ended questions supported that males also face sexual harassment, especially eve-teasing (sexually explicit staring) and sexual gestures. Above average of the female participants admitted that males are sexually harassed and they also see the need for their equal protection. On the one hand, some male participants claimed they mostly experience falsification of allegation of sexual harassment in the workplace, which can be distressing without legal protection. On the other hand, some females see the SHWWPPRA as a means of punishing some male when they do not dance to their tune. Thus, a majority of the male participants in the open-ended comments perceived that favouring only females gives the latter enormous powers to abuse the legal provisions, which seems as harassment to male. This is similar to the findings of Berdahl et al. (1996), in a much broader study sample representing virtually every job category, including technical, managerial, labour, and clerical positions. Consequently, we believe that the organisational structure of Indian workplace favours females than males.

Nevertheless, Aina and Kulshrestha (2017) note that University Grant Commission of India made the regulations on students and sexual harassment, a gender-neutral policy by virtue of University Grant Commission Amended Rules 2016 (In.) S. 3d (UGCR). This infers that the ‘Commission’ foresaw that harassment could be conducted without gender restrictions. Most researches by Indian scholars’ on the subject matter focus on sexual harassment from the perspectives of the male and the female (Schmiede and Yousaf 2016; Das and Pratap 2015; Reena and Saheab 2014; Pereira and Rodrigues 2014; Singh et al. 2014) not recognising that equal opportunities at workplace cannot be achieved without a gender-neutral ‘Act’ when advocating for equal participation within the workplaces. A gender-neutral ‘Act’ will do no harm, but fairness to the society, and will enhance the interest of males in understanding the true meaning of sexual harassment. This will further reduce its occurrence, since males are mostly ignorant of the legal implications of their action and are known as the major perpetrators who view sexual harassment as a social act with little or no feelings for its effect on their victims (Kamal et al. 2011).

Conclusions

This study pioneers a survey of sexual harassment in the Indian legal profession involving both genders as participants. Deductively, our analysis on the effectiveness of the SHWWPPRA suggests that the SHWWPPRA is not fully maximised. Based on our analysis, we assume that the law would shield the participants from the prohibited act. However, the more traditional gender roles and behaviour towards females, as well as hostile sexism has transcended into the legal field and poses a hindrance to the effective implementation of the SHWWPPRA. This compares with more egalitarian cultures, (United Kingdom, Sweden, Belgium, France, Austria, the Netherlands, Finland, etc.) which view males and females as equal in the workplace, home, community, and family (Hills and Marshall 2018; Scott et al. 1996). We therefore conclude that without a behavioural change and internal legal regulation to protect lawyers against sexual harassment, the SHWWPPRA might likely remain less effective within the profession. In encouraging behavioural change, the principle of equal treatment in the workplace must be ensured, as in the European community (1991, Recommendation 92/131/EEC) recommended to the European States (The European Commission [EU] 1996). This provides that both males and females at work should be protected against all forms of sexual conduct that affect or are likely to detriment their dignity within the work sphere (Hunt et al. 2007). This means the legislators should consider a gender neutral SHWWPPRA as a matter of importance, for better administration of justice in the society.

This study confirms that both males and females are vulnerable to sexual harassment, even in a patriarchal cultural India. However, the consequences of sexual harassment are more traumatising for females and there are fewer females in Indian law practice as compared with male. In fact, sexual harassment is a serious challenge confronting all genders which has hindered the growth of the Indian legal profession, some male perceived sexual harassment as a disorder strictly related with females, for example; during the data collection some participants, especially the male participants said they were not aware of sexual harassment, very few said they heard in courts and a majority said that they heard via media/books. Similarly, a majority of advocates practicing in private law firms stated that they were never given guidance or safety prevention tips on how to create a workplace free from sexual harassment. This suggests a need for thorough legal education of all stakeholders and proper implementation of the SHWWPPRA, especially within professionals practicing law in private law firms. Both genders face the problem and can be perpetrators of sexual harassment in the Indian society and should therefore be treated equally.

Limitation of the Study

Our results may not be generalised in terms of the ineffectiveness of the SHWWPPRA in the society, because it is an inference from only a particular profession. If conducted on other professions with larger samples, the result may differ. With respect to gender and sexual harassment, the result might vary if conducted only on a particular gender or equal number of male and female sample is drawn for a survey. Nevertheless, the result may also vary if the instrument for conducting the study was written in both native (Hindi) and English languages. The 2008, 2010, and 2011 statistics of Indian advocates were used for this survey respectively (Legally India 2013; Ethan 2013; Krishnan 2010), if the most recent data were made available, it could broaden the discussions and add to the interest of the readership. In comparability, the scope of the study is also limited because very few researches have been conducted on sexual harassment and the Indian legal profession. Finally, the sensitivity of the topic might also prevent the participants from disclosing their experiences.

Recommendations

Based on the results and findings of this study, the researchers align with previous research (Heathfield 2018; Buchanan et al. 2014; Neil 2006; Williams et al. 1999), and submit that it is possible to reduce sexual harassment in the legal profession by having clear policies, educating workers about the policies and implementing the policies earnestly. Apparently, India has the SHWWPPRA as the policy, but this could be regarded as a formal/redressing measure of addressing sexual harassment. So, several informal/preventive measures of implementation need to be adopted as follows;

  • Proper implementation of the SHWWPPRA among the legal professionals in India—this can be ensured by the Bar Council mandating all firms to provide advocates with internal policies, multiple training methods, including workshops, seminars, experiential learning system, video and internet-based training on sexual harassment, accompanied by proof of compliance, in order to reduce victim blaming and encourage victims to report.

  • Behavioural change regarding sexual harassment should be facilitated by measures such as, regular education of the males and the females within the profession. This could be implemented by discussing issues of sexual harassment among advocates in the State and National Bar Council meetings or forums, at office meetings, requiring the placing of the anti-harassment handbook in a conspicuous part of the workplace, and considering complaints with all seriousness.

  • The SHWWPPRA should be a gender-neutral ‘Act’, in order to totally render justice.

  • Organisational intolerance of sexual harassment must be explicit in all law firms: The Bar Council of India should underscore all forms of harassment within the profession, and ensure the internal provision of anti-harassment policy or handbook, along with clear reporting procedures.

  • Equal nomination or employment of male and female advocates to positions of authority in order to stamp out male dominance, cultural patriarchal oppression and encourage gender egalitarianism within the profession.

  • Lawyers should treat one another with respect by embracing a decent workplace culture free from harassment and the Law firm training on sexual harassment should start from the senior lawyers and rainmakers in order for all lawyers to understand the importance of participating.

  • The Bar Council of India should adopt a regular preventive measure of conducting confidential self-evaluation of sexual harassment and observations of the organisational environment in order to reduce sexual harassment.

  • Since one of the duties of the Bar Council of India is to make rules on the standard of professional conduct and etiquette to be observed by advocates, the Bar Council should specifically disabuse sexual harassment within the profession by adding avoidance of sexual harassment to the duties to colleagues provided under section IV (36) of the Bar Council of India Rules, (under section 49(1)(e) of the Advocate Act 1961 (In.).

  • The violations of such provision should be punished as misconduct under Chapter V, the Advocates Act 1961 (In.) S. 35 (AA).