This article has been written by Nikunj Arora of Amity Law School, Noida. This article provides a detailed analysis of the Sexual Harassment of Women at Work Place (Prevention, Prohibition, and Redressal) Act, 2013, along with its important provisions and key definitions. The article also highlights the drawbacks of the present act in light of the current scenario.
This article has been published by Sneha Mahawar.
Table of Contents
The majority of the global population is made up of women, but they are placed in a variety of disadvantageous positions due to gender differences and biases. They have suffered violence and exploitation from male-dominated societies. Since time immemorial, women have been exploited in India on a social, economic, physical, psychological, and sexual level, sometimes under the pretext of religious guidance, sometimes under the pretext of scripture, and sometimes based on social convention. Before the Indian Constitution was enacted, the concept of gender equality was almost unknown to us.
On 26th June, 1975, Indira Gandhi, then Prime Minister of India, addressed the United Nations Women’s Conference in Mexico and said that women’s lower status and fewer opportunities hindered the development of the human race. It is clear from this generalization that their emancipation is essential and that better facilities need to be made available to enable their full growth and development. The 20th century marked the beginning of women asserting their rights. Their participation in nation-building is a necessary part of ascertaining their rights. Having economic independence will accelerate the emancipation of women and enhance their status. In India, women are entering the formal labor workforce in unprecedented numbers. The rights of women, especially in the workplace, are more critical than ever before in light of this development. ‘Right to Work’ includes protections against sexual harassment at work.
The sexual harassment of women in the workplace is a form of gender-based violence. Besides violating their self-esteem, dignity, and self-respect, it also violates their constitutional and human rights. The issue of sexual harassment in the workplace cannot be viewed as a recent phenomenon, but it has certainly been brought to light by fast-changing workplace equations. In India, the legislation regarding this is the Sexual Harassment of Women at Work Place (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). As a result of the Act, women are protected at work from sexual harassment. Furthermore, it provides for preventing and redressing complaints of sexual harassment. This article provides a comprehensive overview of this Act.
Overview of sexual harassment
The issues of sexual harassment are still taboo in our society, and such issues are likely to make the working environment of the organization hostile and unfit for work. The act of sexual harassment can be defined as when an individual is sexually degraded or humiliated by another person. In the workplace, sexual harassment can be defined as a systematized form of violence against any gender. It is unfortunate that such uncanny practices are prevalent in our country, where gender equality is on the agenda.
The practice of sexual harassment affects every individual woman, whether they are working in industries with factory owners, supervisors, or male coworkers, or working in the service sector with colleagues, clients, and senior employees, or when studying in colleges with faculty members, students, or male colleagues, or working in domestic affairs with male partners. Such practices, which have become ubiquitous, are being strongly ignored by employers. In addition to experiencing sexual harassment in person, the ladies also experience it virtually. Though the exact definition of this term has not been defined anywhere but was defined under the leading case of Vishakha v. the State of Rajasthan (1997), it is defined as follows:
“Sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually-coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual.”
In Apparel Export v. A.K. Chopra (1999), the Supreme Court again reaffirmed the definition of sexual harassment by stating that it means any action or gesture intended to outrage the modesty of a female employee, directly or indirectly.
In terms of classification, there are no clear boundaries or fixed criteria for defining sexual harassment. In the book “Sexual Harassment of Working Women”, it is clear from Mackinnon’s presentation that there are various types of sexual harassment that occur in organizations. Based on the US Supreme Court’s judgment in Meritor Saving Bank v. Vinson (1986), she classified sexual harassment as Quid pro quo harassment and a hostile work environment.
Basically, quid pro quo harassment is sexual harassment that an individual conducts in exchange for an employment opportunity. Promotional offers, salary increases, and transfers are all examples of this kind of harassment. Hostile work environments often involve unwelcome sexual advances, sexual favour requests, and other sexually explicit conduct.
Global view on sexual harassment
International Labor Organization (ILO)
The ILO (International Labor Organization) promotes social justice and international recognition of human and labour rights. The International Labor Organization is a United Nations agency that aims to bring together government representatives, employers, and workers and comprises 187 member countries. Among its responsibilities are establishing labour standards, developing policies, and promoting programs to ensure decent working conditions for both men and women. According to this definition, sexual harassment is any unwanted sexual conduct that creates an intimidating, hostile, or offensive work environment in the reasonable opinion of the recipient. Such behaviour is particularly serious when perpetrated by any official with the power to influence the conditions of the recipient’s career (including recruitment, assignment, contract renewal, performance appraisal, or promotion). In developing and developed countries, as well as in less developed countries, there is a problem of sexual harassment amongst employees. However, these countries tend to deal with this issue individually at the whim of women affected by it.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
A definition of sexual harassment has been provided by the 1981 UN Convention on the Elimination of All Forms of Discrimination against Women as follows:
“Such unwelcome sexually determined behaviour as physical contact and advances, sexually colored remarks, showing pornography and sexual demands whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable ground to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates hostile working environment”
Sexual harassment at workplace
Article 14 of the Indian Constitution guarantees the equality of every citizen under the law, as enshrined in the Preamble to the Constitution. Women are therefore legally entitled to a safe workplace. As a matter of fact, the Indian Constitution contains Articles 14, 15 and 21 that address equality and liberty. As a result of these articles, everyone is guaranteed equal treatment under the law, the right to be free from discrimination on any ground, and the right to live a free and independent life. Workplace sexual harassment is a serious form of sex discrimination in the workplace that causes serious harm. This violates a woman’s fundamental rights under Article 19(1)(g) of the Constitution of India, as well as her dignity, physical and mental well-being. Consequently, productivity is low and lives and livelihoods are negatively impacted. The situation is further compounded by deep-rooted socio-cultural patterns, in which victims are placed under a gender hierarchy, which is likely to increase inequality at work and in society as a whole.
Even though sexual harassment has become a serious issue, women do not report such incidents to the appropriate authorities in most case, for fear of losing their livelihood or personal and professional status. It is increasingly acknowledged that workplace sexual harassment violates the rights of women and is a form of violence against them. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed to create safe and supportive working environments that respect women’s right to equality of opportunity and status at work. As a result of the Act’s effective implementation, more women will be able to claim their equal rights to gender equality, life and liberty, and equal working conditions around the world. In order to achieve inclusive growth, women need to feel secure at work, which will enhance their participation in the workplace. The extent of the problem is unknown because it is difficult to document the experiences of those who have been harassed at work.
The official statistics indicate that women are represented in the workforce at around 25.3% in rural areas and 14.7% in urban areas. However, estimates indicate that there is a large workforce of women, so their workplaces and rights must be protected. Because 93% of female workers work in the informal sector, they remain unprotected by the law.
Overview of the POSH Act
Scope and enactment of the POSH Act
A Dalit woman named Bhanwari Devi, who was employed by the government of Rajasthan in the programme of rural development, was brutally gang-raped in 1992 for attempting to curb the practice of child marriage at that time. It was seen that women working in this industry were exposed to many hazards on a daily basis, thus, demonstrating the need for safeguards to be implemented.
Under the banner of Vishakha, numerous women’s rights activists and lawyers had filed a Public Interest Litigation (PIL) before the Supreme Court of India. The Vishakha Guidelines were created as a result of a petition filed by Vishakha and four other women’s organizations in Rajasthan against the State of Rajasthan and the Union of India. In August 1997, the Supreme Court in Vishakha v. the State of Rajasthan (1997) issued a judgment providing guidelines for dealing with sexual harassment at work. It was seen as a significant legal victory for women’s groups in India. Therefore, the issue of sexual harassment found recognition in India in 1997, and the action was the result of a combined effort between non-governmental organizations, feminists, and lawyers. Essentially, the Supreme Court brought to the public’s attention the issue of sexual harassment in the workplace. The Apex Court noted the following in acknowledging the issue:
“the incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures…”
In order to address the urgency of the issue, the Supreme Court set out guidelines that highlight the rights of women in international covenants. Various international covenants, such as the Beijing Declaration at the Fourth World Conference on Women, and the Covenant on Elimination of Discrimination against Women, led the Court to come up with a definite recognition when it comes to sexual harassment in the workplace. Historically, sexual harassment was viewed as a part of employee misconduct or as a criminal offence if the conduct triggered the provisions of various laws in effect. The legal scenario, however, changed after this case, with the issue becoming an offence.
By establishing the Vishaka Guidelines, the Supreme Court established that workplaces, institutions, and people in a position of responsibility must uphold the fundamental right to equality and dignity that working women enjoy. Institutions were required to meet three key obligations:
The POSH Act was then notified by the government in 2013. Through compliance with the above-mentioned three elements, the Act seeks to ensure women’s equal access to the workplace, free from sexual harassment, as stipulated in the Vishaka judgment. Furthermore, the Act provides women with a civil remedy in addition to other laws currently in effect. As a result, a woman who reports instances of sexual harassment at work has the right to pursue civil as well as criminal remedies.
Preamble to the POSH Act
Parliament enacted the Act in the 64th year of its Republic, thereby extending its scope throughout the country. This Act came into effect on December 9, 2015, following the enforcement of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (POSH Rules). A law generally becomes effective as soon as it is notified, however, in this case, the Act was published by the Ministry of Law and Justice (Legislative Department) for general information. It stated specifically that the Act would come into force after the rules were published in the Gazette, which took almost 8 months to complete.
A statute’s preamble describes the legislative intent and the persons it intends to benefit. In its preamble, the present Act clearly states that its purpose is to protect women from sexual harassment at work, prevent and redress complaints of sexual harassment, and provide for matters connected with or incidental to such harassment.
Statement of object and reasons of the POSH Act
There is a need for special laws when a person, a group, or a section of society commits acts that are detrimental to another person, group, or section of society, and the present social system is inadequate in stopping such acts. Such situations require laws, which are implemented and enforced through the state apparatus, in order to serve as a deterrent through fines, sentences, or damages, etc. Thus, it became imperative to enforce the present Act as women joined the workforce in increasing numbers and faced new challenges in the workplace.
Any statute can be understood and interpreted by reading their introductions and ‘Statements of Objects and Reasons’, which elaborate on the rationales that led to the introduction of the statute. Specifically, the Statement of Objects and Reasons of this Act states that sexual harassment violates women’s fundamental rights to equality, life, and liberty, as provided under Articles 14 and 15 of the Constitution of India, as well as their right to life and dignity under Article 21 of the Constitution. It is also important to note that sexual harassment can also be considered a violation of people’s right to practice any profession or to carry on any occupation, trade, or business, which includes the right to be free from sexual harassment in their workplace.
The Statement of Objects and Reasons of the Act incorporates Article 11 of CEDAW as a part of its Objects and Reasons, which requires States Parties to take all appropriate measures to eliminate discrimination against women in the workplace. Sexual harassment is one such form of gendered violence, which can seriously impair equality in employment for women. Furthermore, this legislation contains provisions that protect all women regardless of employment status. Additionally, the Statement of Objects and Reasons acknowledges that the Supreme Court has provided guidelines to address this issue until appropriate legislation is enacted.
Key definitions under the POSH Act
Similar to what was stated in the Vishaka Judgment of the Supreme Court, the POSH Act defines sexual harassment under Section 2(n) of the Act. The POSH Act states that ‘sexual harassment’ is any unwelcome sexual behaviour, whether directly expressed or implied, and includes the cases of physical contact and advances, or a sexual favour demanded or requested, or making remarks with sexual overtones, or showing pornography or other offensive material, or acting in an unwelcome sexual manner through physical, verbal, or non-verbal means.
There are a number of circumstances that may constitute sexual harassment, including those listed below if they occur or are present during an act or behaviour of sexual harassment:
- A promise of preferential treatment at work;
- A threat of adverse treatment in the workplace that is implied or explicit;
- An implied or explicit threat regarding a person’s employment status, present or future;
- Interference with work or creating an intimidating or offensive or hostile work environment; or
- Humiliating treatment likely to affect the lady employee’s health or safety.
The POSH Act defines sexual harassment as either direct or implied conduct, regardless of whether it is physical, verbal, or written. The distinctive feature of this type of behaviour is that it is undesirable and unwelcome. Among the forms of sexual harassment is quid pro quo sexual harassment, which is a form of sexual blackmail. A typical scenario of quid pro quo harassment involves a person in power pressuring an employee for sexual favors in exchange for advancement or the threat of adverse employment action.
In addition to creating an intimidating working environment, the definition also refers to creating a hostile working environment. For example, a work environment in which a woman employee feels embarrassed because she gets unwelcome comments about her body type. The burden of determining whether the harassment suffered by the victim amounts to a hostile work environment rests on the internal committee because there is no fine line test specified under the Act. Additionally, what constitutes sexual harassment varies from case to case depending on the facts and the context.
The POSH Act, under Section 2(f), defines employees broadly to include regular, temporary, and ad hoc employees. In accordance with the section, an employee is an individual who is engaged in a daily wage position, either directly or through an agent, a co-worker, a probationer, a trainee, and an apprentice, whether remunerated or not, whether on a voluntary basis or otherwise, and whether or not the terms of employment are express or implied.
Although the Vishaka Guidelines only applied to traditional office settings, the POSH Act introduces the concept of an extended workplace, recognizing that harassment may not necessarily occur in the workplace itself. In accordance with Section 2(o) of the Act, a ‘workplace’ refers to any place visited by an employee as part of his or her employment, including any transportation provided by the employer for traveling to and from work.
In Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008), the respondent who had been facing departmental inquiries for allegedly harassing a senior woman officer contended that he could not be accused of sexual harassment at work since the misconduct reportedly occurred not at work but in an official mess in which she resided. A further argument made was that the complainant was in a senior position to the respondent, so he could not extract any favour from her and, therefore, the act did not constitute sexual harassment. This was deemed as clearly misconceived by the Delhi Court in its consideration of the case. According to the Delhi High Court, the official mess, where the employee reported being sexually harassed, fell under the definition of a workplace under the POSH Act.
Important provisions of the POSH Act
Complaints Committee under the POSH Act
Internal Complaints Committee:
In accordance with Section 4 of the POSH Act, every office or branch of an organization employing ten or more employees must have an internal committee dedicated to hearing and resolving sexual harassment complaints. It is important to note that as a result of the Repealing and Amending Act, 2016, the Internal Complaints Committee was renamed the Internal Committee.
In the case of Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017), the Court held that there should be a fine imposed under the POSH Act for failing to constitute the IC. Therefore, it is essential to comply with the composition of the committee, which is mentioned as follows:
- There shall be a female Presiding Officer who is an employee at a senior level at work:
- There should be at least two members among the employees. These members shall be ideally committed to women’s causes or have social work experience or legal knowledge.
- An external member is required, who should be from NGOs or associations that support the cause of women or have experience in sexual harassment issues. As per Rule 4 of the POSH Rules, the external member shall be an individual with expertise in workplace sexual harassment issues, such as a social worker with at least five years of experience or somebody familiar with labour, service, civil, or criminal law.
- At least one-half of IC’s total must comprise female members.
- IC members have a maximum term of three years.
- An inquiry must be conducted by at least three members of the IC, including the Presiding Officer.
The POSH Act provided limited relief for sexual harassment at the workplace until recently. An employer was not required to provide an internal redress mechanism to address complaints of sexual harassment. Now, a Local Complaints Committee must be formed at the district level for the purpose of handling complaints of sexual harassment in the workplace when there is no internal mechanism in place.
Under Section 5 of the POSH Act, the district governments are required to set up local committees to investigate and respond to complaints of sexual harassment from the unorganized sector and from establishments where the IC has not been formed due to fewer than 10 employees of the establishment or when the complaint is against the employer. The formation of a LC is particularly relevant for instances of sexual harassment of domestic workers or when the complaint involves the employer or a third party not employed by the company. It is important to note that as a result of the Repealing and Amending Act, 2016, the Local Complaints Committee was renamed the Local Committee.
The composition of LC is as follows:
- A chairperson, who shall be a woman. Such a woman shall be a women’s rights activist and an eminent social worker.
- A local woman, who shall be nominated amongst women who work in blocks, talukas, tehsils, wards, and municipalities within the district.
- NGO members. There shall be two NGO members, one of whom must be a woman from an organization dedicated to women’s issues, or a person knowledgeable about sexual harassment issues. It is recommended that at least one of the members has legal experience. Further, a woman belonging to one of the Scheduled Castes or Scheduled Tribes should be at least one of the members.
Powers of the committees
In order to investigate complaints of workplace sexual harassment, the Internal Committee and Local Committee have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 when they try a suit concerning:
- Summoning and requiring the attendance of any person and interrogating him under oath;
- A requirement to discover and produce documents;
- Other matters as prescribed.
Procedure of complaint
Sexual harassment complaints at work can be lodged either with the Internal Committee or Local Committee in accordance with Section 9 of the POSH Act. The following is the procedure:
- An aggrieved woman may file a complaint of sexual harassment at work within three months of the date of the incident and, in the case of repeated incidents, within three months of the most recent incident.
- The Internal Complaints Committee / Local Complaints Committee may extend the time limit if the aggrieved woman is not able to submit a complaint within the stipulated period of three months. The committee must be satisfied that the circumstances prevented the woman from forwarding a complaint within the specified time period. An extension of time must be justified in writing by the committee.
- Furthermore, if the woman cannot make a complaint in writing, the Presiding Officer, any member of the Internal Complaints Committee, or the chairperson, or any member of the Local Committee will provide her with all reasonable assistance to file a complaint in writing.
- Moreover, as per Rule 6(i) of the POSH Rules, it is provided that if an aggrieved woman is physically or mentally incapable or dies, or otherwise is unable to lodge a complaint, her legal heir or her relative or friend, or her co-worker, or an officer of the National Commission for Women or State Women’s Commission, or any person who has knowledge of the incident, with the written consent of the aggrieved woman, may do so.
According to Section 10 of the POSH Act, an Internal Committee/Local Committee can attempt to resolve a complaint between the parties, at the request of the aggrieved woman, through conciliation by reaching an amicable settlement. A conciliation process is basically an informal way of resolving complaints before they escalate to a formal investigation. It may, therefore, be possible for the IC to resolve sexual harassment complaints by conciliation between the parties before beginning the inquiry proceedings, although monetary settlements should not be used as a basis for conciliation. A settlement should be recorded by the Internal Committee or Local Committee, and copies should be provided to the aggrieved woman and respondent after the settlement is reached. The IC may not conduct an investigation under the POSH Act after a settlement has been reached.
In response to a complaint, the Local Committee or Internal Committee may recommend interim measures to the employer, including the following:
- Relocation of the aggrieved woman or the respondent;
- Additional statutory/contractual leave of 3 months allowed to the aggrieved woman;
- Refraining the respondent from reporting on the performance (work performance) of the aggrieved woman or writing her confidential report, which can then be delegated to another employee.
Punishments and compensation
An employer may punish an employee in the following ways for engaging in sexual harassment in accordance with the POSH Act:
- The punishment prescribed under the organization’s service rules;
- In the absence of service rules in the organization, disciplinary action may include a written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increment, terminating the respondent from service, undergoing a counseling session, or performing community service; and
- Reduction of the respondent’s wages to pay compensation to the aggrieved woman (Section 13 of the POSH Act).
The POSH Act, in accordance with Section 15, also provides for compensation for aggrieved women. In determining compensation, the following factors must be taken into account:
- Affected employee’s mental trauma, pain, suffering, and emotional distress;
- The loss of career opportunities caused by sexual harassment;
- Physical and mental health treatment expenses incurred by the victim;
- Whether the alleged perpetrator has a high income or a high status; and
- Whether lump sum or instalment payments are feasible.
- A failure by the respondent to pay the aforesaid sum will result in the IC forwarding the order of recovery to the District Officer concerned.
False or malicious complaints and false evidence
It is envisioned in the POSH Act, under Section 14, that actions will be taken against complainants who “falsely or maliciously” use the protections. According to the POSH Act, disciplinary action can be taken in accordance with the service rules of the organisation against a complainant whose allegations have been found to be false, malicious or made with knowledge that they are untrue. The statute provides for disciplinary actions when no service rules exist, including written apologies, warnings, reprimands, censure, withholding of promotion, withholding of raises and increments, terminating employment, attending counseling, and performing community service. It is further clarified in the POSH Act that a complaint need not be false or malicious just because there is insufficient proof to support it. It is true that Section 14 appears to be a saving clause, but the language of the section is regarded as a deterrent in nature. It is possible to conclude from different perspectives that the provisions incorporated in Section 14 to punish false and malicious complaints or false evidence may deter frivolous complaints, but they may also deter genuine witnesses or complainants who may not collect sufficient evidence to prove their allegations.
The POSH Act, in accordance with Section 16, recognizes the sensitivity associated with sexual harassment and places a high priority on maintaining confidentiality throughout the process. It is specifically stated in the POSH Act that workplace sexual harassment information shall not be subject to the Right to Information Act, 2005. Additionally, the POSH Act prohibits the dissemination of the contents of the complaint, as well as the names and addresses of the complainant, respondent, witnesses, conciliation and inquiry proceedings, recommendations of the above-mentioned committees, and the consequences of the same to the public, press, and media in any manner whatsoever.
It is important to note, however, that the POSH Act allows the dissemination of information concerning the justice directed to victims of sexual harassment without disclosing any of the victim’s names, addresses, identities, or any other particulars that could identify them. In By disclosing the results of the investigation, the employer could not only prevent similar acts of sexual harassment in the future but also convey to employees and the public that the company is serious about providing a safe and harassment-free work environment.
Section 17 provides that if a person breaches the confidentiality obligations by handling a complaint or conducting an inquiry, or making recommendations or taking action under the statute, he/she shall be punishable under the organisations’ service rules applicable to that person or, in the absence of such rules, with a fine of Rs 5,000.
The POSH Act imposes a monetary penalty of up to Rs 50,000, under Section 26, if an employer fails to constitute an IC. Upon repeating the same offence, the punishment may be doubled and/or the entity may be de-registered or have any statutory licenses revoked. However, it is not clear which business licenses are being referred to in this instance. Moreover, under the POSH Act, all offences are non-cognizable (Section 27).
Provisions related to the employer
Vicarious liability of the employer
The Vishaka guidelines allow employees to hold employers accountable for breaches of their duties. Ultimately, the Delhi High Court, in U.S. Verma, Principal Delhi Public School Society v. National Commission for Women (2009), held that employers have a personal responsibility to protect others from harm, and are not permitted to abdicate this responsibility by delegating it. The Vishaka guidelines create a fair, secure, comfortable, and safe work environment with no chances of discrimination.
In State Bank of India v. Shyama Devi (1978), the Supreme Court ruled that, before the master is liable, it must be established that the damage was caused by the wrongful acts of the servant or agent. An employer is responsible for acts of sexual harassment by its employees or supervisors at work if these acts were performed in the “course of employment“, whether or not for the employer’s benefit. Whether or not an act was committed during the course of employment is a matter of fact in each case. As Sections 13(3)(ii) and 15 of the Act only entitle sexually harassed employees to monetary compensation, not their employers, a woman who has been sexually harassed at the workplace will have no other option than to seek compensation in civil court. The employer is vicariously liable for sexual harassment in the same way as for any other tortious act committed in the course of employment.
Duties and obligations of the employer
Section 19 of the POSH Act mandates not only the establishment of an IC and the timely redress of workplace harassment grievances but also certain other responsibilities on employers, such as:
- Creating a gender-sensitive workplace and eliminating the underlying causes of a hostile working atmosphere for women;
- Maintain a safe work environment;
- Develop and widely disseminate policies, charters, resolutions, and declarations prohibiting, preventing, and redressing sexual harassment at work;
- Prominently display the consequences of acting in a manner that constitutes sexual harassment along with the composition of the IC;
- Provide a list of all members of the IC, as well as their contact information;
- Conduct regular workshops and awareness programs to inform employees and IC members on workplace sexual harassment issues and implications;
- Provide the IC with the necessary facilities for handling complaints and conducting inquiries;
- To initiate legal action, either under the Indian Penal Code, 1860 (IPC, hereinafter) or under any other law, against the perpetrator, or if the aggrieved woman so desires, against the perpetrator, where the perpetrator is not an employee, at the workplace where the incident of sexual harassment occurred;
- Providing assistance to aggrieved women in filing a complaint under the IPC or any other applicable law;
- Implement a policy to treat sexual harassment as a misconduct in accordance with service rules, and take appropriate action when it occurs;
- Provide a report to the District Officer each year detailing the number of cases filed and their disposition;
- Ensure that IC reports are submitted on time.
Drawbacks of the POSH Act
There are a number of loopholes and shortcomings in the Act that have emerged with time and prevent it from realizing its full potential today. This inadequacy and insufficiency in legislation continues to harm women. Therefore, it is vital to identify and address these discrepancies. The following are the significant issues:
There is no specific protection under the Act for other employees who may be victims of work-related sexual harassment. A woman aggrieved by sexual harassment is defined in Section 2(a) of the Act as someone who alleges that she was subjected to such an act. In Section 3, it is prohibited to harass a woman at her workplace. This Act, therefore, excludes the possibility of redress for complaints raised by men or LGBTQ+ members by limiting the scope to women only.
As women have historically been disadvantaged, this inherent bias is not at all a bad thing. The employment rights of women may have been protected and increased through gender-specific laws like these. The existence of a biased law perpetuates the age-old stereotype of a male harasser and a female victim, vitiating the concept of equality in the workplace. It is, therefore, necessary to propose a gender-neutral law which mandates that workplaces have appropriate policies for addressing sexual harassment both by males and individuals belonging to the LGBTQ+ community.
Threats of retaliation
The fear of retaliation by the harasser or organization is a large factor in women’s reluctance to report workplace harassment. The majority of victims do not wish to raise their voices against the perpetrator for fear of social stigma, embarrassment, or even further harassment. There are additional challenges that women face if they complain about senior employees, such as increasing their likelihood of hostility from their peers or supervisors, a negative reference for future employers, or even losing their employment.
The employer may take action during the pendency of the inquiry according to Section 12. The aggrieved woman could be transferred, granted leave for up to three months, or receive any other relief suggested by the court. As a result, there do not appear to be adequate measures to promote a healthy working environment and ensure her safety if she chooses to continue her employment there. Employers have a number of responsibilities under Section 19 of the Act, but none of them is to ensure that complainants are not stigmatized or harassed. Despite the fact that this is not the intent of the Act, the absence of such safeguards creates the impression that the complainant lacks security at work and must relocate elsewhere in order to feel secure again.
Limited recourse for women in the informal sector
Human Rights Watch published an extensive study in 2020 detailing the failures of the Act for women in the informal sector. The report discusses how these employees feel their incidents of sexual harassment are ‘trivial’ and they would be better served by simply ignoring them rather than participating in a lengthy legal process that often fails to satisfy their needs. The fact that complaints by women working in the informal sector are not taken into account by the Act is particularly disappointing.
Compliance audit and governmental scrutiny
As a result of Sections 21, 23, 24 and 25 of the Act, the government is responsible for monitoring the working of the Internal Committees, Local Committees, employers, and all other aspects of the implementation of the Act. Moreover, they are required to keep track of how many cases of sexual harassment have been filed and disposed of at their workplace. It is crucial to monitor compliance in order to identify gray areas and to highlight those that need further investigation. The parties responsible for failing to perform their obligations may not face any penalties without such scrutiny. The law is also less efficient when it cannot be analyzed for its shortcomings.
Procedural and technical drawbacks of the POSH Act
A number of technicalities in the Act prevent it from being fully implemented. The provisions of Section 9 stipulate that victims of sexual harassment must file a complaint within three months of the occurrence. A further three months may be granted if the Committee is convinced that certain circumstances prevented the victim from filing their complaint within the prescribed deadline. There is also no option to make anonymous complaints under the Act.
In developed as well as developing countries, sexual harassment continues to be an age-old practice that has crossed all the barriers of society, such as race, gender, sex, and color, for ages. Regardless of gender, an individual can experience sexual harassment in the workplace, no matter their gender. There are a variety of reasons that contribute to the occurrence of such harassment in the workplace, such as gender indiscrimination, inadequate distribution, favourable nature, and the mindset of the harasser. The act of sexual harassment is not limited to requesting sexual favours and unwanted physical contact, it may also include the psychological pressure experienced by the harasser as a result of his or her sexual assault, coercion, or unwanted sexual attention.
Clarification of applicability, accountability, implementation, and monitoring should be included in the POSH Act in order to encourage better reporting. It is important that employers and authorities adopt, implement, and encourage best practices to detect and respond to workplace harassment in order to achieve high workplace productivity. The best way to prevent such unfavourable working conditions is to actively advocate for initiatives that increase awareness and encourage prevention efforts.
- Is it possible for both men and women to be victims of workplace sexual harassment?
Sexual harassment can happen to both men and women. POSH Act safeguards/protections, however, are only available to women.
- Does verbal conduct constitute sexual harassment?
The verbal harassment of a sexual nature may constitute sexual harassment. It is possible for words to be offensive in the same way as physical acts and touches. In the workplace, sexually coloured jokes, comments, and stories can lead to sexual harassment and can create an environment that is hostile.
- Does the company’s HR manager have authority to investigate complaints?
No, an investigation must be conducted by the IC after the complaint has been filed.
- Does every branch/office need to have an IC?
A company must set up an IC at every branch/office where at least 10 employees are employed.
- Do the parties involved in a claim of sexual harassment have a chance to resolve the issue through mediation or conciliation?
Yes, a settlement may be reached at the request of the aggrieved woman, but no monetary settlement can be reached.
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