Sexual harassment at workplace is a form of gender discrimination. It violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Indian Constitution.
Sexual harassment of women at workplace not only creates an insecure and hostile working environment for them but also impedes their ability to deliver in today’s global economy.
Not only sexual harassment interfere with women’s performance at work, it also adversely affects their social and economic growth and puts them through physical and emotional suffering.
Sexual Harassment Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is the first legislation in India specifically addressing sexual harassment of women at workplace.
The objective of the POSH act is to prevent and protect women against workplace sexual harassment and create an effective mechanism for redressal of complaints.
Although the POSH act has been in force since 2013, many employers are not fully aware of the criminal consequences of sexual harassment.
Many women employees remain hesitant to complain against harassment for the fear of being ridiculed or suffering adverse consequences in promotion or career growth.
In addition, there is ambiguity about what constitutes sexual harassment, obligations of an employer, remedies available to the victim and procedure for filing complain and subsequent investigation.
Creating a safe and secure work environment is need of the hour. We aim to equip employers with necessary awareness, policy and processes to create a safe and secure working environment for women.
Key Provisions of the Posh Act
1. Who can claim protection?
An aggrieved woman who can claim protection at the workplace under the Posh act could be any of the following:
- a regular, part-time or temporary employee
- employed directly or through any recruitment/placement agency
- may or may not be getting any salary
- a trainee, intern, student or someone on probation
- a customer or client visiting any workplace
Definition of the workplace has been extended to include any place visited by the employee during the course of the employment, whether within or outside of regular working hours.
2. What amounts to sexual harassment?
sexual harassment includes unwelcome sexually tinted behavior, whether directly or by implication, such as
- physical contact and advances,
- demand or request for sexual favors,
- making sexually colored remarks,
- showing pornography, or
- any other unwelcome physical, verbal or non-verbal conduct of a sexual nature
The following circumstances, in addition to sexual harassment behavior mentioned above, may amount to sexual harassment at the workplace:
- an implied or direct promise of better treatment
- an implied or direct threat of poor treatment
- an implied or direct threat about present employment status or future growth prospect
- creating an intimidating, offensive or hostile work environment.
- humiliating treatment likely to affect the complainant’s safety or health
As endorsed by the High Court of Delhi in 2010, sexual harassment is a subjective experience. Hence, a complete understanding of the complainant’s view is required. Conduct that many men consider as harmless social interaction may offend many women.
3. How to set up the Internal Committee for sexual harassment grievance redressal?
The POSH act requires an employer to set up an Internal Committee (IC), at each office with 10+ employees, to redress grievances related to sexual harassment.
IC should have a Presiding Officer, preferably a woman employee at a senior level, at least two members from amongst employees and at least one external member from a social organization or an individual familiar with women issues. More than half of IC members should be women, and their terms should not exceed three years.
IC members should be selected based on whether they are accessible, approachable and committed. They should also have good credibility and technical competency to handle grievance redressal procedure.
While inquiring into a complaint of workplace sexual harassment, the IC can summon and enforce the attendance of any person and examine him on oath.
4. How to file a complaint to the Internal Committee?
An aggrieved woman should file six copies of written complaint along with supporting documents and name/address of witnesses to the IC within three months of the incident.
The complaint should be concise and written in simple, easy-to-understand language with details of specific incident, date and time, witness and circumstances before and after the incident, and whether the aggrieved woman asked the respondent to desist from the unwelcome act(s). Append any emails, photos, screenshots of WhatsApp or SMS, call details and recording if any.
The complaint should have the name and designation of the respondent along with reporting structure between the complainant and the respondent if any. Also, mention the relief sought from the employer.
5. What is the redressal process?
Before a formal inquiry starts, the aggrieved women may request the IC to settle the matter amicably by conciliating between the parties and resolving complaints.
Following are the critical process and timelines:
- The written complaint, as detailed above, has to be filed within three months of the incident. The deadline could be expended by another three months.
- Send one copy of the complaint to the respondent within seven days.
- The Respondent is required to respond within ten days with supporting documents and witnesses details.
- The inquiry has to be completed within 90 days.
- The employer is required to act on the recommendation of the IC within 60 days of receiving an inquiry report.
- Appeal against the decision of the IC is allowed within 90 days from the date of completing inquiry.
The IC may provide interim relief to the aggrieved women during the course of the inquiry by taking measures such as granting leave up to 3 months and restraining the respondent from reviewing work performance of the aggrieved woman.
6. What are the punishments and compensations?
Based on the recommendation of the IC, an employer may take disciplinary actions on the accused employee including a written apology, withholding promotion/salary increments and termination from the job.
The aggrieved woman may also be paid compensation for the mental trauma / emotional distress, loss in the career opportunity and medical expenses incurred for physical/psychiatric treatment.
7. What about frivolous complaints?
For false or malicious complaints, the IC may recommend disciplinary actions on the complainant. However, inability to
substantiate a complaint or provide adequate proof need not mean that the complaint is false or malicious.
8. What are the consequences of non-compliance for an employer?
If an employer fails to form an Internal Committee, a monetary penalty of up to Rs 50,000 may be imposed. A repetition of the same office may lead to punishment being doubled or de-registration / cancellation of business licenses.
Anti-Sexual Harassment Policy
Click here to download a sample Anti-Sexual Harassment Policy that would help you comply with POSH Act 2013.