Of all the massive changes that 2013 saw in India’s legal landscape, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act – the first codified legislation of its kind was the most drastic, and the most timely. The Act, along with the Rules (collectively, POSH Law), aims to make the workplace safe for women by systematically preventing, prohibiting, and redressing sexual harassment
Women in India are recognized and granted protection under the Constitution. The preamble to the Constitution, inter alia, guarantees social, economic, and political justice, equality of status, opportunity, and the dignity of the individual.
And yet for years working Indian women found that these protections granted under the Constitution, or in national or state legislations, in practice only extended to men. It was obvious that women needed specific rules to enforce their rights. The Supreme Court of India, in Vishaka v. State of Rajasthan, observed that equality in employment cannot be achieved if women are subjected to gender specific violence at the workplace, such as sexual harassment. The Vishaka ruling was a milestone in Indian jurisprudence. In the words of legal luminary Zia Mody, “Judicial activism reached its pinnacle in Vishakha v. State of Rajasthan.”
While delivering the judgment, the apex court went on to issue guidelines for employers that would ensure equal working conditions for women, including protection from workplace sexual harassment. Prior to the Vishaka judgment, a woman aggrieved by any act of sexual assault or harassment had to approach law enforcement authorities under the Indian Penal Code (specifically Sections 354 and 509). The guidelines laid down in Vishaka were the culmination of a long fight for justice by a gang rape victim. Bhanwari Devi, a social worker for the Women Development Programme in Rajasthan, was brutally raped in 1992 when she opposed a child marriage in her village. Feudal patriarchs who took exception to her crusader efforts allegedly committed the rape. The rape and the victim’s subsequent futile quest for justice garnered widespread attention and represented a watershed moment for women’s rights in India. Bhanwari’s cause was taken up by Vishaka, a women’s welfare group that led public interest litigation
The new guidelines put the onus of ensuring a safe workplace environment squarely on the employer and laid down, for the first time, a mechanism for employers to address complaints relating to sexual harassment, including the formation of committees. The guidelines were accorded legal status by the apex court until the legislature enacted a definitive law.
Vishaka triggered a national consciousness on an issue that was, until then, not given its due importance. Following up on Vishaka, the Supreme Court of India enlarged the scope of sexual harassment by ruling that physical contact was not essential to be considered an act of sexual harassment.
Vishaka sparked debate across India on an issue that had never, until then, been given its due importance. Shortly after the ruling, the Supreme Court enlarged the scope of sexual harassment to include acts that did not involve physical contact. The apex court went on to describe sexual harassment as a form of sex discrimination against women employees and unreasonably interferes with their work performance, creating an intimidating workplace environment. Upset with delays in enforcement of the guidelines, the apex court directed the Indian states to implement mechanisms to ensure effective implementation. “The implementation of the guidelines in Vishaka,” the court observed, “has to be not only in form but substance and spirit so as to make available safe and secure environment to women at the workplace in every aspect and thereby enabling the working women to work with dignity, decency, and due respect.”
The above judicial activism notwithstanding, it took a decade after Vishaka for the legislature to start work on a definitive law on workplace sexual harassment. The initial draft, first introduced in 2007, had to wait another six years to receive the assent of the legislature. The guidelines were finally replaced by the POSH Law in December 2013.
The Act recognizes that sexual harassment constitutes a violation of fundamental rights of women, their right to life, and their right to live with dignity and carry on any profession, trade, or business. POSH Law, notably, is not gender neutral — it only protects women. A man who is a victim of sexual harassment at the workplace is not entitled to invoke POSH Law; rather he must rely on company antiharassment policies. However, many organizations have opted to make their POSH policy gender neutral in order to ensure an equal representation. POSH Law applies to both organized and unorganized sectors.
This article has primarily focused on the internal committee (IC); however, there is also a provision in the POSH Law for the constitution and empowerment of the local committee (LC). The LC is only invoked when a workplace has fewer than 10 personnel and a complaint needs adjudication or the complaint is against the employer itself. Given most organizations have 10 or more personnel and the complaints are often between employees themselves, this article will focus on the IC and its role and function.
The Act defines “sexual harassment” expansively and includes the ensuing unwelcome acts: physical contact and advances; demands for sexual favors; showing pornography; or any other unwelcome physical, verbal, or non-verbal conduct of sexual nature.
The Act also states that the following circumstances (whether implied or explicit) may constitute sexual harassment: promise of preferential treatment in employment; threat of detrimental treatment in employment; threats about present or future employment; creating an intimidating or offensive or hostile work environment; and humiliating treatment , or potentially endangering health or safety.
Clearly, what constitutes sexual harassment can be quite subjective under POSH Law. The judiciary has acknowledged this, saying, “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’. 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.”
While certain forms of sexual harassment are easily distinguishable for their sheer egregiousness, such as sexual assault, other forms may tread a thin line. Whether a particular behavior amounts to sexual harassment depends on the context in which such behavior takes place.
Interestingly, the Act introduces the concept of an “extended workplace.” In addition to the office of the employer or employee, any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment, also constitutes a workplace.
The Act defines an “aggrieved woman” as a woman of any age, whether employed or not, who has been subjected to sexual harassment. Given that the law does not require that the woman be an employee, even a customer or a visitor who feels sexually harassed at any workplace can claim protection under POSH Law. To ensure the above definition applies without restriction, the definition of an “employee” under the Act is fairly wide, covering regular, temporary, and ad hoc employees; individuals engaged on a daily wage basis, either directly or through an agent; contract workers; coworkers; probationers; trainee;, and apprentices, paid or unpaid, with or without the knowledge of the principal employer, whether the terms of employment are express or implied.
POSH Law mandates every employer to: provide a safe working environment, which shall include safety from persons coming to the workplace; display the penal consequences of workplace sexual harassment, and the order constituting the IC, at any conspicuous place at the workplace; and conduct training programs to create awareness among employees at all levels . The preferred mode of training is through online webinars, at least once a quarter, though it is recommended that employers, conduct at east one in-person workshop per calendar year, over and above the quarterly webinar.
POSH Law further requires employers to: conduct orientation programs for the members of the IC; provide necessary facilities for the members of the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC; and monitor the timely submission of reports by the IC , assisting in any manner the aggrieved woman to secure justice.
As a best practice, it is also beneficial if companies put up POSH Law related posters in conspicuous places in the workplace about what constitutes sexual harassment. Since the scope of POSH Law extends beyond employees, putting up the POSH Law related posters at the company entrance, reception, and meeting or conference rooms delivers the message to customers, consultants, and other visitors to the company premises.
Every workplace with a minimum of 10 employees must set up an IC, with women constituting at least half of the IC’s members. The IC’s key mandate is to oversee the implementation of the organization’s POSH Law policy. The IC shall comprise a senior level woman employee as the chairperson or presiding officer; a minimum of two employees committed to uphold women’s rights; and another member from a NGO or an association dedicated to women’s welfare, or conversant with issues of sexual harassment. It is pertinent to note that where an employer or organization has multiple locations, with each location having 10 or more personnel, it is mandatory to set up an IC in each such location. The term of IC members shall not exceed three years and a minimum of three members, including the chairperson, are required to conduct an investigation into any complaint.
The Act has afforded the IC the status of a Civil Court, empowered to summon or enforce the attendance of any person, order the production of documents, and perform any other matters as may be prescribed.
Given the subjective nature of sexual harassment, it is critical to get the composition of the IC right. Organizations need to ensure that the IC members are selected, to the extent practically possible, on their commitment to the cause of women. While the Act itself is silent on what constitutes “commitment to the cause of women,” it is generally understood to equate with upholding or championing women’s rights, including their right to work without threats or intimidation of a sexual nature. Since the IC has to deliberate on employment matters, it would do well to select members who have sound understanding of HR and the overall business context as well. It is fairly common to find experienced HR/senior business/ functional leaders heading ICs of several organizations. The IC must treat sexual harassment as misconduct under the applicable services rules and initiate action for such misconduct, which could range from written warnings to terminating the accused, if found guilty. While there is no “one size fits all” approach, it would be prudent for the IC to view things as holistically as possible and adopt an approach that is sufficiently balanced and fair to both the accuser and the accused. While constituting an IC is one thing, ensuring that the IC does its job impartially and to the best of its abilities can be an entirely different aspect. Sensitization and orientation workshops go a long way in this regard. Employers may consider inviting legal professionals, who have managed women’s rights issues, or representatives of organizations espousing women’s rights for such sensitization and orientation programs. In-house legal departments can be instrumental in assisting the IC members with interpreting the Act and the Rules judiciously, while ensuring the IC is not impeded in its investigation. Aside from providing expert legal advice, the in-house counsel should endeavor to familiarize the IC with the rules of evidence specifically on what does or does not constitute indisputable evidence. The evidence to be collected varies from case to case. Often it involves emails, SMSs, WhatsApp, and other social media messages or images, as well as witness statements, etc. In the absence of any documentary evidence or witness statements, IC should be encouraged to probe whether adequate circumstantial evidence subsist to support the claim. Wherever necessary, IC should not hesitate to seek outside support, including forensic help.
POSH law does not specifically mandate the manner in which the IC should meet. The IC should meet at their convenience, evenvirtually, to deliberate
Per the POSH Law, the mandate is to meet whenever a complaint is lodged with the IC and follow the timelines given in the section below. It is pertinent to note that when the IC was originally brought into force by the Act, employers saw it as a mechanism to meet only when complaints are registered. However, the lawmakers quickly realized that the IC, and more importantly the Act, was not only for the redress of sexual harassment complaints, but for the prevention of sexual harassment. Therefore, with this legislative intent in mind, it is a good practice for the IC to meet at reasonable intervals, even if there are no complaints. Additionally, it’s not mandatory that every IC member be present whenever the IC meets to address a compliant. The requirement is to have a minimum quorum to conduct the meeting. Nor do IC members need to be physically present at deliberations or to hear a complaint.
The Act lays down specific timelines for all sexual harassment claims, ranging from the receipt of the claim, due inquiry, testimony and evidence collection, the adjudication of the claim, and its final resolution and implementation, as well as the possibility of appeals in specific cases. The IC may also refer claims to the local police authorities should a claim attract the provisions of the IPC.
Below are the specific timeline protocols: Filing of the complaint: the aggrieved woman is required to file the complaint with the IC, in writing, within three months from the date of the (last) alleged incident of sexual harassment. The IC may grant extensions up to three additional months if the circumstances are deemed justified. Further, should the aggrieved woman have any physical or mental incapacity, including death, owing to which she is unable to file the complaint, her legal heir, coworker, relative, friend, or a person with knowledge of the incident or such other person can make the complaint on her behalf. While POSH law does not recognize anonymous complaints, many organizations do allow them, as it could be embarrassing for an aggrieved woman to disclose her identity while lodging the complaint. However, at all times, the IC must ensure that any claim is adjudicated in accordance with the principles of natural justice.
Completion of the inquiry: all complaints submitted to the IC must be adjudicated and the recommendations finalized by the IC within 90 days of the receipt of the complaint. Submission of report: the IC must submit the report within 10 days of completion of the inquiry to the employer. Further, if the parties to the incident so desire, the report can be made available to such parties.
Implementation of recommendations: the employer must implement the recommendations shared as part of the report prepared by the IC within 60 days of receipt of such recommendations by the employer.
Appeals: all appeals under the Act must take place within 90 days of the recommendations being formulated on specific issues only, such as (a) no sanctions/sanctions of misconduct or deductions of wages; (b) false/malicious complaints or false witnesses or forged documents; (c) penalty for contravening the non-disclosure guidelines of the Act; or (d) non-implementation of recommendations.
During the inquiry process laid out above, should the IC conclude that the allegation is malicious, false, or based on a forged or misleading document, then the IC may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere inability to substantiate a complaint or provide adequate proof does not make in itself make the complaint malicious or false.
Furthermore, should the IC conclude that any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness to take action against the witness.
The POSH Law also provides for conciliation between the interested parties. On a practical level, such conciliatory efforts are ordinarily adopted when the complaint of sexual harassment is based on a misunderstanding, rather than an egregious error of the respondent. On the conciliation process itself, the IC may, before initiating an inquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made as a basis of the conciliation.
The POSH Law has also delved into empowering the IC to grant interim reliefs during the pendency of an inquiry. As a careful inspection of the timelines will show, it takes between three to six months for the entire complaint process to resolve itself. However, the aggrieved woman may have continue working with or staying in contact with the respondent during this time, which can be very disturbing. To prevent a hostile work environment, the IC is empowered, at the written request of the complainant, to recommend any of the following interim reliefs during the inquiry: transfer of the complainant or respondent to any other workplace; extra leave to the aggrieved woman for up to three months in addition to her entitled leave; restraint of the respondent from reporting on the work performance of the aggrieved woman; or restraint of the respondent from supervising academic activities of the aggrieved woman, should she work in an educational institution.
Contravention of the provisions of POSH Law, including failure to convene the IC, will expose the employer to a fine that may extend to INR 50,000. For subsequent offenses, there are higher fines and sanctions. However, what is important to note under POSH Law is that any offense committed thereunder shall be noncognizable.
Though the penalty per se may seem trivial, organizations run the risk of having their business licenses and registrations cancelled for continued non-compliance. Additionally, if a court takes cognizance of a POSH Law violation and there is a higher punishment under another legislation in force at the time for such offense, the court can take due cognizance of such higher punishment while awarding the punishment.
Eevery calendar year the IC must prepare an annual report and submit it to the employer. The report should incorporate the following: the number of complaints of sexual harassment received in the year; the number of those complaints disposed of; the number of cases pending for more than 90 days; the nature of any action taken by the employer; and the number of workshops or awareness programs conducted against sexual harassment.
The IC shall forward the report to the employer and the local labor district officer. There is also an obligation under the Act for the employer to include the above POSH Law related annual report as part of its overall annual company report. Where such overall annual company report is not required, the employer will notify the number of cases to the local labor district officer. Failure to submit the annual report will invite the same penalties as the failure to constitute the IC does.
India’s growth, and its increased efforts to honor the tenets of its Constitution, show its commitment to its citizens’ fundamental rights. The POSH Law is one such example, especially given its genesis of this legislation in the early 1990s. As India progresses as a nation, including in its economic policies, organizations and workplaces must stay abreast with the tide of modern development, encouraging work environments driven solely by merit and free of all forms of discrimination. POSH Law is one step toward such a meritocracy, and in time it will yield its benefits for all women in the workforce.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
