Gone are those days when only men used to be the sole bread-earners of the family. Nowadays, due to greater access to education and employment opportunities, there has been a radical change in women’s status globally. Women are now entering the mainstream with full motion, and therefore, sexual harassment problems are gaining more generous dimensions
The Indian legal landscape has seen tremendous changes in the year 2013. The journey of POSH from 1997 to 2013 hasn’t been comfortable, and it has taken sixteen long years to seek its existence in India. The Sexual Harassment of Women Workplace (Prevention, Prohibition and Redressal) Act, 2013 is the first Indian legislation specifically designed to address women’s sexual harassment at the workplace. In Indian history, issues related to eliminating gender-based discrimination, gender equality, right to freedom, respect, and dignity of every human being have always been significant concerns enshrined in the Indian Constitution. However, workplace sexual harassment in India was for the very first time highlighted by Hon’ble Supreme Court of India in its landmark judgement Vishaka & Others Vs. The State of Rajasthan.
In its judgment, the Supreme Court laid down mandatory guidelines to be followed by employers to safeguard women’s respect and dignity at the workplace and ensure a safe work environment in organizations. These guidelines were treated as a significant framework to redress issues of sexual harassment at the workplace till the enactment of the Act. Yet, if we focus on the implementation of the Act in India, the underlying essence of understanding the spirit of the law is still missing. With typical mindsets, organizations in India are approaching POSH compliance as a check the box approach rather than focusing on the spirit which the law intends to communicate. Hence, Companies in India are facing significant challenges in the effective implementation of POSH programs.
This paper aims to highlight some of the practical insights on POSH issues that could help organizations develop a clear understanding of POSH and its practical implementation.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to create a safe work environment and safeguard women’s dignity at the workplace. However, it is equally important to understand that today in the world of start-ups and modern work environment, kit is women. Still, all other genders, including men and third gender, require equal protection and safeguard. Therefore, in addition to abiding by the law, it is one of the pivotal duties of organizations to have gender-neutral policies to ensure every gender at the workplace and create a safe and inclusive working culture.
According to Section 2(n) of the Act, the term sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication), namely
In common parlance, if we decode the term sexual harassment, it should be understood that the definition provided by the Act is inclusive and not exhaustive. Hence understanding the difference between two critical terms i.e. Perception and Intention, is extremely important.
Analytically, POSH Act is the first Indian legislation that is wholly based on perception of an ‘aggrieved woman’ rather than the accused’s intention. Considering POSH Act, the term intention is only valid if the employer intends to create a safe and inclusive workplace environment for its stakeholders. And therefore, it is exceptionally crucial to display the right behavior at each level of the organizational hierarchy.
Organisations and their stakeholders should note that the impact of sexual harassment at the workplace can affect the person both personally and professionally. Such impacts are far-reaching and may impact decreased work performance, increased absenteeism, depression, ill mental health, unhealthy family relationships, and more.
Taking an example of the current working scenario where millennials form a large part of the mainstream, frequent use of unparliamentary language as a routine is considered ‘COOL’ while interacting in office spaces. Yet, very few amongst such people and organizations have realized how this frequent use of unparliamentary language could lead to sexual harassment in the Company if the same is being perceived inappropriately.
Another example that could be very relevant considering the ‘new normal’ would be displaying the right behavior in front of the camera while most people are now working virtually. How one should dress up and approach people virtually while they attend meetings is a major concern.
In 2010, the High Court of Delhi endorsed the view that sexual harassment is a subjective experience and for that reason held, “We therefore prefer to analyse harassment from the [complainant’s] perspective. A complete understanding of the [complainant’s] view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement. … Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”
As we know that despite having a specific law in place, effective implementation of the Act is still missing. There have been usual problems organizations have been facing, which relates to understanding the difference between terms’ harassment’ and ‘sexual harassment.’ On one hand the term harassment in common parlance is any situation or act that makes a person uncomfortable to work and creates a hostile work environment. On the other hand, term sexual harassment is any situation or act that is sexually abusive and creates a hostile work environment in an organization
The aforementioned is one of the most common myths of organizations, leading to vague understanding and improper implementation of the Act. Most importantly, one must understand that term harassment is a broader term and that sexual harassment comes under the umbrella term ‘harassment’. Yet it must be noted that if any act of harassment if perceived to be sexually abusive, such act would be construed as sexual harassment under POSH Act. Another common myth that organizations come across is understanding reporting mechanisms of harassment and sexual harassment situations.
All the organizations have distinct HR and POSH policies in place. Therefore, the employer must familiarize its stakeholders with the organizational policies and reporting of such critical matters with the respective authorities. For example, cases of harassment are usually dealt by HR via Code of Conduct policy. In contrast, Internal Committee usually deals with the issues of sexual harassment constituted under the POSH Act.
Harassment – Criticizing, insulting, blaming, reprimanding, or condemning an employee in public, Exclusion from group activities or assignments without a valid reason, statements damaging a person’s reputation or career, removing areas of responsibility, unjustifiably, inappropriately giving too little or too much work etc
Sexual Harassment – Making sexually suggestive remarks or innuendos, serious or repeated offensive remarks, such as teasing related to a person’s body or appearance, offensive comments or jokes, Displaying sexist or other offensive pictures, posters, mms, SMS, whatsapp, or e-mails, intimidation, threats, blackmail around sexual favours etc
The article shall be concluded in the next issue. Stay tuned!
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