This article is written by Anita Bhaktwani, pursuing a Certificate Course in Prevention of Sexual Harassment at the Workplace from LawSikho.com.
Sexual Harassment at workplace is a universal problem, be it a developed or developing nation, atrocities and cruelties against women is a common phenomenon. It is an issue that has visible negative effects on both men and women. It seems to be happening more with the women as they are considered to be a more vulnerable section of the society.
What is sexual harassment
Sexual harassment as explained under the POSH (Prevention of Sexual Harassment) Act would mean unwelcome sexually determined behaviour (directly/ through implication) like physical contact and advances by employees including:
- Demand for sexual favour, sexually coloured remarks, showing pornography, any other unwelcome physical conduct of sexual nature, lucid stares, physical contacts, molestation, stalking, sounds, display of pictures and signs.
- Eve teasing, innuendos, taunts, physical confinement against one’s will.
- Demand for sexual behaviour whether verbal/ non-verbal, where submission to such conduct is made explicitly/implicitly a term/condition of an individual’s employment or promotion/ evaluation of work thereby denying an individual equal opportunity at employment.
- An act/ conduct of an employer or person in authority which makes the environment at workplace hostile/ intimidating to a person/ unreasonably interferes with individual’s privacy and productivity at work.
- Verbal harassment of sexual nature such as lewd comments, sexual jokes or references and offensive personal references demeaning/ insulting/ intimidating or sexually suggestive comments (Oral/ written) about an individual’s personal appearance or electronically transmitted messages/jokes, etc.
- Any other behaviour which from subjective perception of a woman has sexual overtones.
In the judgement of Jaya Kodate v/s Rashtrasant Tukdoji reported in 2014 SCC Online Bom.814, the Bombay High Court pointed out that “the definition off workplace under POSH Act is inclusive and deliberately kept wide in order to ensure that any area where women may be subject to Sexual harassment is not excluded within the purview of this Act.
Responsibility of the employer
The definition of sexual harassment encompasses all acts/ behaviour that may impact the mind/ performance of the women at workplace. Hence as per the Act responsibility is placed upon employers to ensure that women do not face a hostile environment and prohibited intimidation/ victimization of those cooperating with the inquiry, including the witnesses and the complainant. The employer has to provide for a redressal mechanism in the form of Complaints Committee, which will look into the complaints of Sexual harassment at workplace. Rule 13 (a) of the Act clearly postulates the following Compliances by the employer:
- Formulate Safe Working environment Policy.
- Display consequences of involvement in Sexual harassment in a prominently noticeable way at workplace.
- Display order constituting ICC.
- Conduct orientation and sensitization programmes.
- Capacity Building and skill-building programmes.
What falls outside the purview of sexual harassment?
The Delhi High Court in Shanta Kumar vs CSIR reported in 2017 SCC Online Del.11327 held that “Undoubtedly, physical contact or advances would constitute sexual harassment provided such physical contact is a part of sexually determined behaviour…… a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.
Preliminary resolutions of complaints
Sexual harassment cases can be resolved at the organisational level if the Senior management handles the case sensitively with aptness, under proper mechanism and processes thereby ultimately preventing reputational, business loss, public relations, etc. The effective implementation of the POSH Act not only requires creating an environment where women can speak about their grievances without fear and get justice but sensitization of men towards treatment of women at the workplace is equally necessary.
Instances of companies affected by sexual harassment
The following companies, to name a few, suffered massive financial impact, loss of reputation and drop in productivity due to non-compliance of the Act or insensitively handling the complaint and the complainant.
- WEFORUM: A TYPICAL FORTUNE 500 Co., with 23750 employees lost $ 6.7million, a year because of absenteeism, low productivity and staff turnover due to sexual harassment
- INFOSYS: Ex-director Phaneesh Murthy and his Secretary Reka Maximovitch settlement amounted to $ 3 million.
- UBER: With the ever-increasing sexual harassment complaints and #deleteuber Campaign, Company saw losses of $ 703 million and consequent exit of its CFO. In India cab aggregators settled for approximately $ 3 million.
- Tehelka: November 2017, an accusation of Sexual Harassment against Tarun Tejpal, founder of Wall Street Journal sales slumped, cash flow hurdle, late salaries, etc. The case grabbed attention after allegations that Staffers at Tehelka tried to bury the complaint.
- Yoga Studio: Bikram Choudhury Yoga Inc, filed for Bankruptcy, dodged $16.7 million in various legal proceedings, lawsuits & Sexual harassment accusations. Allegations started in 2013 that he enforced a cult-like atmosphere for intimidation and absolute shut down of a million-dollar company.
- TVF: Arunabh Kumar, CEO of Viral Fever forced to step down on anonymous complaint of Sexual Harassment and losses of 8-9 crores The official response contained a doxing threat to victim of sexual harassment, plenty of implied violence and malice. No hint of remorse or suggestion of impartial hearing into the matter or suggestive indication that allegation would be taken seriously.
- NOVASOFT Technologies: Penalty of Rs.1.6 Crores for non-constitution of ICC. Gayatri Belaswamy joined as Vice President of the Company and within a few months filed complaints against two officers.
Let us look at the preventive measures addressed within the POSH Act:
The Act Postulates certain preventive steps to be taken at the workplace to prevent sexual harassment. A few of them are as follows –
- Express prohibition of sexual harassment at workplace, formulation of Anti Sexual harassment Policy and constitution of ICC should be notified, published and circulated in appropriate ways.
- The rules of government and public bodies relating to conduct and discipline should include rules prohibiting sexual harassment and provide for adequate penalties against the offenders.
- As regards private employers, steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment ( Standing Orders) Act, 1946.
- Create a Complaints Committee (ICC if more than 10 employees and otherwise LCC) in all offices and branches of the organisation.
- Organize workshops and awareness programmes periodically for sensitizing employees on implication of Sexual harassment at workplace and organizing orientation and capacity building programmes for members of ICC.
- Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards the women at the workplace and no women employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment.
- Initiate legal action against perpetrator for sexual harassment (if perpetrator not employee) under criminal law upon request of the woman
- Provide necessary facilities to the Complaints Committee to deal with sexual harassment instances.
Let us move on to look at the compliance aspect of these policies.
Effective compliance- anti sexual harassment policy
One of the most important compliance under the POSH Act as well as a means for an employer to establish that proper and reasonable care is taken to prevent sexual harassment at workplace is to adopt WRITTEN ANTI SEXUAL HARASSMENT POLICY and make all the employees aware of its existence so that no employee should have justification/ground to state that they were not aware of the organization stance on Sexual harassment. Besides, it has a great preventive effect and reduces the likelihood of such instances. Also a written policy helps the employer and his team working on sexual harassment cases to act in a coherent and consistent manner. Employers/ District Officers are responsible for complying with prohibition/prevention/ redress of workplace sexual harassment. In practice, this means having a policy that:
- Prohibits unwelcome behaviour that constitutes workplace sexual harassment.
- Champions prevention of workplace sexual harassment through orientation, awareness and sensitization sessions.
- Provides a detailed framework for redress.
- Features of written anti-sexual harassment policy
- The Policy should be simply worded but at the same time be explanatory and elaborate enough for all types of employees to be able to understand and use it.
- The Policy should clearly state that organisation’s stand on sexual harassment and mention that the policy is to prevent and prohibit sexual harassment and also provide mechanism on redressal.
- Definition of sexual harassment, in consistency with the Act, should be provided for, citing examples and also state that consensual relations, welcome behaviour, harassment in non-official gathering will not be considered as sexual harassment.
- The Policy should explain applicability to all types of women, be it full time/ part time/ contractual/ trainees/ probationers, etc. and also on assignment and even against third parties. Besides, it should clearly specify that the policy shall be considered as part of an employment contract and with immediate effect.
- The Policy should clearly mention the names of ICC members and also that the complaint against the employer be filed with LCC, to which access be available through email/ notifications. Details of Powers of ICC, necessity of written complaints, process, time period, interim measures, etc. to be provided for.
- The Policy should contain the reliefs that can be provided i.e. the interim measures, the punishments to the perpetrator as well as the settlement options.
- The Policy should specifically mention the consequences and punishments of sexual harassment against the perpetrator as well as the punishments in case of false complaints.
- The Policy shall also state and provide for the Confidentiality clause. It should clearly state that name, identity or any other particulars relating to the complainant shall not be revealed, process of enquiry also shall be kept confidential. Any person violating the confidentiality shall be suitably dealt with. Also mention no retaliation assurance.
- The Policy should mention the submissions of the annual report to the District Officer, thereby increasing the confidence of the complainant in the mechanism available with the organisation.
Best preventive measure – sensitization
- Need for sensitization
Sensitization is directly known to reduce the incidence of sexual harassment and building a better workplace as men who are aware of it and its consequences will be less likely to indulge in such acts. A good onboarding strategy will ensure that suspicions about misuse of the Act in the minds of the target audience are paid due attention to and addressed. Men and employees are aware of how to deal with the complaint, they will comfortably defend allegations, which can reduce their suspicions, scepticism, towards law. A sensitization session must be designed in such a way that employees feel assured and convinced that they are adequately enough to defend themselves against the abuse of law and Innocent employees will be taken advantage of or victimized by unscrupulous complaints. The effective employee sensitization would require:
- Create proper training/programme; and
- Disseminate training programmes/ work on its delivery mechanism in a way that it is accessible and understood by all its employees. Suitably designed workshops are conducted providing for:
(A) Identification of knowledge components of training; and
(B) Implementation, Conducting and dissemination of training programmes.
- When and how to conduct sensitization
There is no period/frequency /intervals at which the sensitization programmes are to be conducted but the same can be based on logistics and availability of experts. Besides every employee at the time of joining the organisation, should be informed of its anti-sexual harassment policy in the form of training and/or materials in the form of policies, etc. The organisation is mandated to conduct sensitization of employees which can be done in the traditional way of Workshop through experts or By Video Conferencing or Online Webinars or Providing digitally accessible tools or policies, manuals, handbooks or courses. In furtherance, the evaluation mechanism will ensure the understanding of the organisation’s anti-sexual harassment policy. The Sensitization should be aimed at explaining the scope and definitions under the Act, the constitution of ICC, time-bound process of inquiry, conciliation, confidentiality and availability of appeal.
- Salient features of a workshop on employee sensitization are enlisted as hereunder:
- Acknowledge that the training is not for policing women’s behaviour.
- Free exchange, share views, preconceived notions about sexual harassment and physical relations.
- To enable employees to relate to feeling of discomfort caused by sexual harassment or unsafe feeling.
- Employees recognizing when sexual harassment becomes uncomfortable.
- Identify universally agreeable lines of tolerance or acceptable conduct.
- Both are able to recognize unwelcome situations in the same way.
- Sexual harassment and its layers i.e. the difference between admired at and persistently ogled at.
- Expand ambit of Sexual harassment to include third parties, visitors, outsiders.
- Meaning of Workplace and Management Policies.
- What can be done to create trust in the functioning of the complaint mechanism?
- Inform available workable solutions in case an incident happens.
- Explain ICC- its constitution, mechanism, which maintains confidentiality, a forum to file complaints, a committee, not an individual and has institutional sanctity.
- Clarifying/exposing training, communication, videos and creating gender neutrality.
- Functional Compliance.
Effective complaint mechanism
- Training/ capacity-building programmes for the ICC,
Section 19(c) of the Act also provides for training/ capacity building programmes for the ICC, which has to be undertaken by the employer himself or be delegated to the HR team or by engaging experts for the said purpose. But apart from the manual training, the effective tool that can be provided is having a handbook/ Rule book for them. The Handbook shall be provided to ensure consistency in the decision-making process and also its alignment with the organizational goal. The handbook/rule book to clearly explain the definitions of sexual harassment, employees, employers, workplace and the organization’s stand on anti-sexual harassment policy.
- The handbook/ rule book will enable the ICC to speedily resolve cases within stipulated timelines and set baseline expectations for employers to cooperate with ICC as and when required. A handbook should contain the following:
- Meaning and explanation of Sexual harassment, employer, employee, workplace etc.
- Range and gradation of punishments.
- Situations when salary deduction is permissible and guidelines for determination of appropriate salary deduction.
- Range of interim measures.
- How to comply with the principles of natural justice.
- Record keeping procedure.
- How to maintain confidentiality.
- Statutory powers of ICC/ decision making process/ timelines.
- Conciliation process.
- The situations when the ICC and the assistance to be provided by the ICC for approaching the Police.
- How to write decisions and inquiry reports.
- Submission of annual Reports.
Compliance check- monitoring
Effect of Monitoring
Sexual harassment prevention law compliance requires legal, adjudicative, training, inter-personal and compliance skills, which makes the job relatively more complex for a working professional, without specific training and guidance. The other essential aspect provided under the act is MONITORING. Monitoring is a critical yardstick to measure success in terms of the compliance of the Act. It highlights those areas, in terms of law and practice, which may require improvement and/or additional information and guidance at both State as well as Workplace levels. Monitoring is a way to ensure compliance of the act on the ground .
There are two ways of monitoring:
- Inspection: To make available all/any information, record or document including opening its workplace for inspection at all relevant times
- Annual Report: The act mandates submissions of Annual report by ICC/LCC to District Officers with specific information as regards pending/ disposed of complaints in the manner provided under the Act as well as specific consequences where a complaint is lacking.
The monitoring is of two levels:
- Employer required to monitor that ICC is complying with
- Reporting of Settlement Agreement: The Complaints Committee has to report Settlement Agreement to District Officer, Employer, Perpetrator as well as the woman.
- In case of criminal action post preliminary inquiry in some cases, the Complaints Committee has to recommend/ lodge criminal action upon a woman’s request.
- The recommendations of the interim measure are to be communicated to the Employer for effective implementation.
- The recommendations/report post inquiry has to be sent within 10 days to ensure its compliance.
- Preparation of annual report by LCC/ICC/EMPLOYER
- Details of the number of complaints.
- Details of disposals.
- The number of pending cases.
- Details of Awareness programmes/workshops.
- Nature of action by employer/District officer.
- Track compliance with complaints committee order:
- Notification process intimating ICC when a specific action is taken by the employer.
- Process for information exchange between employer, ICC & Team Heads.
- Record keeping process that tracks/provides a Status Report for decisions whose implementation is complete/pending.
- Final Confirmation from ICC to ensure that employers confirmation is in sync with the ICC.
Key steps/action on complaint
The action taken after an employee alleges sexual harassment can be key in limiting employer’s potential liability and resulting in adverse publicity. Legal and Policy consideration coupled with effective communication and coordination can effectively prevent the harm/losses to the company. Sexual harassment complaints can lead to serious liability including punitive damages for inappropriately handling complaints. The key steps that can be suggested are:
- CEO to immediately inform B.O.D.
- Treat the complainant with respect, understanding and concern.
- Swift and appropriate action including thanking the employee for raising concern and quick initiation of an investigation sends a message to all.
- Promptly and thoroughly investigate complaints.
- Take appropriate action during and after investigation.
- Adopt and act according to sexual harassment policy.
- Conciliation on request.
- Ensure confidentiality and no retaliation.
- Quickly assess the impact.
- Immediate action on recommendations of Complaints Committee.
Effects of non-compliance
Non compliance of any of the provisions of the POSH Act or mishandling of the Sexual harassment cases can result into loss of productivity, business, financial losses, reputational hazards, loss of brand value, etc. and thus it shall be the prerogative of all organisations to ensure strict compliance of the Act in letter and spirit. The Act provides for penalty of Rs. 50,000/- on first non-compliance, subsequently cancellation of licence. Besides also under the Companies Act, a fine of Rs.25 lakhs leading to imprisonment as well is provided for.
The Act provides for preventive, prohibitive and redressal mechanism in case of sexual harassment at workplace. But yet there are lot of practical difficulties like when there is only one/ no female employee or locations of the unit is inappropriate for personal training, etc., but the Act is a very effective tool available to women, with its time-bound process of inquiry as well as implementation, providing confidentiality and assurance of no-retaliation. The penalties non-compliance on part of the employer acts as a deterrent and makes the act more effective.
POSH- ACT & RULES
HANDBOOK ON POSH
2014 SCC ONLINE BOM 814
2017 SCC ONLINE DEL 11327
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