Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) ACT, 2013

Increasing women’s labor force participation by 10% points could add $770 billion to India’s GDP by 2025 – Mckinsey, Power of Parity Report, 2018

There are numerous reports and surveys that highlight the potential of higher participation of women in our workforce, but the actual nos are constantly low. One of the key reasons for the dismal participation is the perception of safety and security of women in the workplace.

Harassment and discrimination not just violate the fundamental rights, it impedes growth, and expose a person to physical and emotional suffering coupled with mental trauma; thus creating a wider imbalance in the society.

The POSH Act has been a commendable step in this direction and encourages higher participation of women. Strong implementation of the Act helps not only helps businesses boost Morale and improve Work culture, but it also helps in hiring and retention of critical talent.

EVOLUTION OF THE LAW

The movement that pushed the redressal mechanism dates back to the 1990s when the Supreme Court delivered a landmark judgment laying down guidelines to be followed by establishments in dealing with complaints about Sexual Harassment.

• These directives were entitled the “Vishaka Guidelines” which were a part of the historic judgment passed on 13th August 1997.
• It acknowledged that harassment of working women amounts to a violation of the rights of gender equality and the right to practice any profession, occupation, and trade.
• The Vishakha Guidelines were a set of procedural guidelines for use in India in cases of sexual harassment at the workplace.
• They were overridden in 2013 by “The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013” (Commonly known as “The POSH Act”).
• The Vishaka judgment instituted a nationwide discourse on workplace sexual harassment and threw out wide open an issue that was swept under the carpet for the longest time.

SCOPE AND APPLICABILITY

The Act is applicable on whole of India but it is a gender-specific legislation and only protects women which means men are not entitled to adduce the POSH law if they are the victim of sexual harassment. However, organizations must opt a clean and gender-neutral POSH policy in order to ensure an equal representation of the workforce. The Act is applicable on the following:

• Organised and Unorganised Sectors in India having less than 10 workers.
• Aggrieved Woman as defined in Section 2(a) of the Act which means
  • in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent
  • in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house.
• Workplace as defined in Section 2(o) of the Act which means and interprets that the Act applies to any private sector organisation or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organisation, unit or service provider carrying on commercial, professional, vocational, educational, entertainmental, industrial, health services or financial activities including production, supply, sale, distribution or service. Also in relation to this definition, 3 criterias were laid down to determine workplace under the Act through the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India 151 (2008), which is: Proximity from the place of work, Control of the management over the place/residence where the working woman is residing and that the residence be an extension or contiguous part of the working place.

EFFECTS AND FORMS OF SEXUAL HARASSMENT

India’s #MeToo movement has empowered several women to go to social media and voice their personal stories of harassment and out alleged perpetrators. There have been allegations of harassment against other prominent personalities from various industries like cinema, television, media, advertising, music and entertainment. Sexual harassment may have consequential effect on both men and women who face it actively and others who have experience it secondhand. In some situations, the unsolicited behavior of co-workers make it really worse, resulting into resigning from the jobs and effects one’s morale, mental health, effectiveness of work, productivity, and talent.

Generally, workplace sexual harassment cites two common forms of inappropriate behavior:

1. Quid Pro Quo (literally ‘this for that’)
   • Implied or explicit promise of preferential/detrimental treatment in employment
   • The Implied or express threat about her present or future employment status.
   Example- A person in a superior/higher position using their power over a person in a lower position than them by threatening to terminate, transfer, demote, or otherwise adversely affect an employee’s work life if sexual favors are not given or continued.
2. Hostile Work Environment
   • Creating aggressive, intimidating or an offensive work environment
   • Mortifying treatment likely to affect women health or safety.

PREVENTING SEXUAL HARASSMENT AT WORKPLACE

Prevention of sexual harassment at workplace is pertinent so that no personal and professional life is impacted directly and indirectly. These issues have to be addressed in a proper, effective and systematic manner so that it’s negative, demoralizing and harmful effects can be avoided. Everyone is equally responsible for preventing sexual harassment when they are directly or indirectly experiencing it. The duties of an employer and/or the appropriate Government towards the prevention of sexual harassment in the workplace has precisely laid down in the Act as follows:

• To provide a safe working environment at the workplace, organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the POSH Act and orientation programs for the members of the Internal Committee (herein referred as “IC”) in the manner prescribed by the Government.
• To publish the POSH related policies over the company intranet and the same should be included in employee’s orientations plans with the updated contact details of the Internal Complaint Committee (herein referred as “ICC”) members.
• To provide necessary facilities to the IC or the Local Committee (herein referred as “LC”) who concerns with the complaint and conducting an inquiry. Assist in securing the attendance of respondent and witnesses before the IC or the LC.
• To make information available to the IC or LC as it may require having regard to the complaint made under Section 9(1) of the POSH Act.
• To provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code or any other law for the time being in force.
• To cause to initiate action, under the Indian Penal Code or any other law for the time being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place. Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.
• To monitor the timely submission of reports by the IC.

COMPLAINTS AND REDRESSAL MECHANISM

1. Constitution of Internal Committee (IC)
   With increasing number of cases, it becomes important to address all such issues in a systematic manner. All employers with 10 or more employees are needed to form the IC by an order in writing to receive and redress complaints and render support on sexual harassment at the workplace.
   IC to ensure the fulfillment of its objectives. IC implements the policies relating to the prevention of sexual harassment and resolving complaints by the aggrieved and taking appropriate actions.
   This IC should be formed at every office or administrative unit in case there are different offices. The committee should contain a minimum of 4 members:
   • A Presiding Officer who is a senior-level employee.
   • Two or more members amongst the employees who have good knowledge of social work and legality
   • An external or NGO member who is well familiarized with sexual harassment issues or from a non-government association committed to the cause of women.
2. Procedure to file a complaint
   Chapter IV, Section 9 envisages that any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the IC (or to the LC, in case IC is not constituted) within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident. If the complaint cannot be made in writing then the Presiding officer or the Chairperson or any member of IC or any member of LC shall render all reasonable assistance to the woman making the complaint in writing. The IC or LC can extend the timeline by another three months, only if it is satisfied that the circumstances were such that prevented the woman from filing the complaint.
3. Conciliation
   Section 10 indicates that only at the request of the aggrieved woman steps can be taken to settle the matter between her and the respondent through conciliation, provided that no monetary settlement shall be made as a basis of conciliation. Where settlement has been arrives through Conciliation, the IC or the LC shall record the settlement so arrived and forward the same to the employer or the District Officer to take action as specified in the recommendation. The IC or the LC shall provide the copies of the settlement as recorded to the aggrieved woman and the respondent. Where a settlement is arrived, no further inquiry shall be conducted by the IC or the LC, as the case may be.
4. Inquiry into Complaint
   Section 11 visualises that the IC or the LC initiates inquiry if the following are the cases-
   • If no conciliation is requested by Aggrieved woman.
   • If conciliation has not resulted in any settlement.
   • And if Complainant informs the IC that any term or condition of the settlement arrived through conciliation, has not been complied with by respondent.
   The IC or the LC has the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters, namely:
   • Summoning and enforcing the attendance of any person and examining him on oath
   • Requiring the discovery and production of documents and any other matter which may be prescribed
   • The inquiry shall be completed within a period of ninety days.

SUBMISSION OF ANNUAL REPORT

• As per section 21 of the Act, the IC or the LC, shall in each calendar year prepare an annual report and submit the same to the employer on or before 31st January (Due date may vary state to state) to the District Officer and such District Officer shall forward a brief report on the annual reports received to the State Government.
• The employer shall include in its report the number of cases filed if any, and their disposal under this Act in the annual report of his organisation or where no such report is required to be prepared, intimate such number of cases, if any, to the District Officer.

The POSH Act specifies the following penalties that an employer may impose on an employee for committing sexual harassment:

1. Penalties as outlined in the organization’s service rules.
2. If the organization lacks service rules, disciplinary actions may include a written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, termination of service, mandatory counseling sessions, or community service.
3. Deduction of compensation payable to the aggrieved woman from the respondent’s wages.

The POSH Act also includes provisions for compensating the woman who has suffered harm. The compensation amount will be determined based on the following factors: the mental anguish, pain, suffering, and emotional distress experienced by the affected employee; the impact on career opportunities due to the sexual harassment incident; the medical expenses for physical or psychiatric treatment incurred by the victim; the income and status of the accused perpetrator; and the possibility of making payment in a lump sum or in installments.

If the respondent does not pay the mentioned amount, IC has the authority to send the order for collection of the sum as unpaid land revenue to the relevant district officer.

FRIVOLOUS COMPLAINTS

To guarantee that the safeguards envisioned by the POSH Act are not abused, clauses for action against “false or malicious” complainants have been included in the statute. According to the POSH Act, if the Internal Committee/Local Committee determines that the complainant’s allegation is untrue or made with malicious intent or if the complaint is knowingly false, forged, or contains misleading information during the investigation, the organization can take disciplinary action in line with its service rules against the complainant. If the organization lacks service rules, the statute allows for disciplinary actions such as a written apology, warning, reprimand, censure, withholding of promotion, or withholding of a pay rise. or increments, terminating the respondent from service, undergoing a counseling session, or carrying out community service may be taken. Furthermore, the POSH Act specifies that failing to substantiate a complaint or provide sufficient evidence does not automatically make the complaint false or malicious.

CONCLUSION

The Act being a fairly cotemporary law in India fulfills the need of the hour which we should be sensitive towards the cause but at the same time should not get blinded by pre-conceived notions like ‘men are always wrong; women can never lie.’ The wronged woman must get justice but at the same time, a man should not be wronged as well. The right balance must be struck.

Let’s not crush the principle of “innocent until proven guilty” in our quest for “Justice”. It remains a difficult task to counter the challenges of dealing with sexual harassment allegations at the workplace and complying with the POSH Act with quick and efficient resolution.

Disclaimer

The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. The content of this article is not intended to create and receipt of it does not constitute any relationship. Readers should not act upon this information without seeking professional legal counsel.