To understand Prevention of Sexual Harassment let us comprehend what constitutes Sexual Harassment in the first place.
Sexual Harassment: Meaning and Inclusion
As per section 2 (n) of the PoSH act, Sexual harassment is undesirable behaviour (if a woman does not consent and expresses discomfort) such as:
- direct physical contact and advances
- ask for sexual favours
- make sexually coloured remarks
- showing pornography; or any other unwanted physical verbal or non-verbal conduct of a sexual nature
Moreover, the below actions may add to sexual harassment if they are related to the said behaviour:
- The promise of favoured treatment or threat of detrimental treatment in the employment (Implied or explicit)
- The warning about employment status in present or future (Implied or explicit)
- Creation of an offensive work environment
- The humiliation which may affect health or safety.
PoSH Law: Meaning and Origin/Genesis
Sexual harassment in the workplace is a universal issue. It is a concern to humanity and is a violation of the individual and fundamental rights of a woman (mentioned below):
- As per the Indian constitution, the right to equality is a violation under Article 14 and Article 15;
- And under Article 21 of the Indian constitution, the right to life and live with dignity is violated.
Thus, the PoSH law introduced to protect and support the right of women so that women could practise any profession, carry on with any occupation/trade or business in a safe environment free from sexual harassment.
The “Sexual Harassment” of women at the workplace (Prevention, Prohibition and Redressal) Act, 2013, referred to as “PoSH Act” extends to the whole of India. The PoSH Act legislated after 16 years of the Supreme court judgement in the landmark case of Vishaka and others Vs. State of Rajasthan and others in 1997. The court case was filed by an NGO as a social worker was brutally gang-raped at her workplace. In the court judgement, the Supreme court established that sexual harassment at the workplace is a violation of the constitutional rights of women. It is discriminatory towards women.
As there was no legislation around, the court, stated that an “affective alternative mechanism” is needed to prevent the violation of woman’s fundamental rights. To address such issues and fill the gap, the apex court laid down firm guidelines to make it obligatory for an employer to have a mechanism to redress complaints related to sexual harassment at the workplace. These guidelines were named “Vishaka Guidelines.” The court stated that the Vishaka guidelines are to be treated as a declaration of law and shall be applicable until relevant law is enacted by the Parliament.
A bill named “Protection of Women against Sexual Harassment at Workplace Bill” was introduced in 2007 (Original Bill) to implement the law. However, it did not get the required attention. Later, the “Original Bill” was introduced in the Parliament with few changes (including the title). The title was changed to meet the objective to not just focus on redressal of sexual harassment complaints but also, focus on prevention and prohibition of sexual harassment. Hence, the bill renamed as “Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013.”
Law Mandate for Sexual Harassment
Be it is a small business or a big organisation, it is critical to understand that is the responsibility of an organisation to create a safe and healthy work environment for its employees. As per PoSH law, every company with a minimum of ten employees or more must constitute an Internal Committee (IC). The committee must include:
- A “woman officer” appointment as the “Chief” by the senior management;
- An external member from a non-governmental organisation to ensure neutrality;
- Minimum 2 members who represent employees of the organisation.
50 per cent of the nominated committee members shall be women and all complaints shall be made to this body which must resolve every issue without any partiality. While the workplaces with ten or more employees are required to form an IC, the PoSH Act also entails constituting a local committee (LC) in every district to hear and address the complaints of sexual assault from workplaces, where the employee count is less than ten. Depending on the case, the LC/IC must inquire every complaint of sexual harassment as per the rules and shall respond within 90 days from the complaint registration. Once, the inquiry finishes, the IC/LC needs to prepare a report of its findings. Irrespective of the level of impact and intention of the person complaining, IC/LC must take every incident seriously and the designated authorities must do a thorough investigation. If sexual harassment charges are proved, the committee may recommend the employer to take action against the accused. And, for punishing for false complaint, the employer may take action against the person/woman who has made the complaint as per the applicable provisions or rules.
Sexual harassment in the workplace is a universal issue. It is a concern to humanity and is a violation of the individual and fundamental rights of a woman
- Indian Constitution ( Article 14, 15 and 21 )
There were many bills related to prevention of sexual harassment pending in the Lok Sabha, Parliament. Medha Kotwal Lele filed a petition in the supreme court stating that Vishaka Guidelines are not applied effectively. Thus, in Medha Kotwal Lele vs Union of India, the Supreme Court identified the Vishaka Guidelines require both employers and other responsible people/institutions to observe to prevent sexual harassment of women. Hence, sexual harassment was declared a criminal offence and the PoSH law was made effective on December 9, 2013, by the Government of India.
Need for Prevention of Sexual Harassment Policy
As per the survey conducted by Indian National Bar Association where 6,047 people participated in the survey 78 per cent were females and the remaining males at Business Process Outsourcing (BPOs), information technology (IT) sector offices and various educational institutes, hospitals and legal firms.
- It was found that 38 per cent of women had faced sexual harassment at the workplace;
- Out of these, 68.9 per cent said they refrain from making complaint due to fear, lack of confidence and embarrassment;
- On questioning about legal protection, 42.2 per cent stated that they did not feel protected at work.
PoSH Training & It’s benefits
PoSH training is one of the mandatory training in any organisation. Its purpose is to educate all employees: managers, senior management, directors and make them aware of the definition of sexual harassment and the law to prevent sexual harassment deed and consequences under the PoSH Act. The training will help the employees to differentiate between appropriate and inappropriate behaviour and create a safe and gender-neutral work environment.
Awareness programs and training for all employees at regular intervals and gender sensitization will act as a gentle reminder of the work culture the organisation has built. Thus, would result in high job satisfaction, productivity and retention of valuable employees. The employer must conduct sensitization programs online or a classroom session and develop policies against sexual harassment among other compulsions. In the awareness program, the employee must be encouraged to take steps to prevent the situation for sexual harassment at the first place which means one must trust their instincts about the possible danger; deal with the harasser upfront or report the abuse to the HR department or respective committee.
Stakeholders in PoSH
- Human Resource (HR) Manager – HR is accountable to ensure a safe workplace for all the employees. Gender sensitization and PoSH training both are important to create the same environment. Hence, HR must make arrangements to do both to improve the productivity of the employees.
- Senior Management – They are responsible to maintain the public image of the company. The sound policies assure the potential client, vendors and the employees and policy bring a feeling of trust in the organisation.
- Employees – Awareness of employee safety assures employees. Thus, encourages them to perform better.
Non-Compliance: Penalties on failure to comply with the law and its consequences
Non-compliance could lead to hefty penalties to the employer. Below are some of the provisions under the law:
- Failure to set up the Internal committee or breach of the Act or any rules under the same will be punishable with a fine of fifty thousand rupees INR 50,000;
- In case, an employer has been previously convicted under this law, commits and is convicted for the same offence, will be liable to twice the punishment;
- Non-compliance will lead to cancellation of the license and non-renewal or cancellation of the registration.
- Any person responsible for the supervision of any workplace private organisation, institution, establishment, society, service provider or any place visited by the employee or management person or board or committee responsible for formulation and administration of such policies etc. which is not covered in the above point;
- The household person who employees a domestic worker in a house, flat or another place of residence regardless of the period they are employed for and the type of employment full-time or part-time.
Once booked under this law, it tarnishes the image of the company beyond repair. In such a scenario, the reputation and goodwill of the company are questionable and it impacts the growth of the organisation adversely. Hence, the employer must be proactive not to miss on to have a culture of the safe and harassment-free environment at the workplace. Please note the employer for the act (PoSH Act) is:
The head of any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the government or local unit.
Working from Home – Does this law still applies?
In Covid-19 time, the new normal is working from home. So, does the PoSH law apply in a virtual work environment? Well, sexual harassment can happen virtually as well. The PoSH Act covers work from home under the “extended workplace” definition. A workplace is any place visited by the employee during the term of the employment which may include transportation provided by the employer.” The workplace definition goes beyond the four walls of office premises. It indeed applies to the virtual world. Any correspondence, message, video, audio etc. which is sexually coloured is transmitted through any electronic means is sexual harassment under the provisions of PoSH Law. Hence, it is must to align the PoSH policy as per changing times. The process to register complaints can be done online, enquiry or related procedures shall change accordingly.
To summarise, an organisation from a compliance perspective must implement the PoSH policy, sensitise all employees about the law, form an internal committee/local committee (IC/LC) and have a mandatory external member to ensure they take right steps to implement the policy. Hence, the employer must form gender-neutral policies. Despite the PoSH law’s applicability to women, other genders too can be the victims of sexual harassment and protection. Hence, with the increase in diversity, and global policies, any organisation to lay down policies like PoSH which is only restricted to women to protect other genders.
If we do not see the holistic picture, the defamation of character, humiliation by gossip or scrutiny can induce pressure, thus, further may result in psychological stress and health issues in the victim irrespective of their gender. It may affect their relationship and can further consequences could be a failure of any references and recommendation when needed. Thus, Sexual harassment i.e., sexual advances, any unwanted gesture by an employee having sexual hints, staring, unwelcome touching or any act/behaviour within the workplace can create a difficult environment for the person belonging to the opposite sex. Hence, keeping the core objective of law formulation should be kept in mind i.e., to protect employees against sexual harassment. The insecure work environment may discourage a woman’s whole heartily participation in work. Thus, affecting the social and economic development and empowerment of a woman. However, we need to understand that policies designed for preventing sexual harassment at work are not misused. PoSH is a non-cognizable offence but we must address the false complaints too and punish the offender for such acts.