All About POSH Act, 2013

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sexual harassment at workplace- ApniLaw

Index

  1. Introduction 
  2. What is Sexual Harassment 
  3. What is POSH Act
  4. Vishaka Guidelines 
  5. Key Terms under POSH Act
  6. Key Highlights of POSH Act
  7. Procedure of Complaint
  8. Penalty and Compensation under POSH Act
  9. False Complaints 
  10. Privacy Safeguards in POSH Acts
  11. Limitations of The POSH Act
  12. Worldviews on Sexual Harassment 
  13. Conclusion 

Introduction 

For centuries, women worldwide, especially in India, have faced a multitude of disadvantages coming from gender biases. These biases have subjected them to violence, exploitation, and various forms of discrimination within male-dominated societies. This mistreatment has manifested across social, economic, physical, psychological, and sexual dimensions. Prior to the Indian Constitution, the notion of gender equality was largely absent from our collective consciousness.

What Is Sexual Harassment 

Sexual harassment is a behaviour that involves degrading or humiliating individuals on a sexual basis. In the workplace, it represents a structured form of violence that targets any gender. 

The impact of sexual harassment is felt across various sectors. Women encounter it in industrial settings from supervisors or colleagues, in service industries from clients or senior staff, in educational institutions from faculty or peers, and even in domestic settings from partners. These pervasive behaviours are often overlooked by employers, and the problem extends to virtual spaces as well.

Article 14 of the Indian Constitution ensures equality for all citizens, including women, in the eyes of the law. This means women have the legal right to a safe workplace. Additionally, Articles 15 and 21 also uphold principles of equality and liberty, ensuring everyone’s right to fair treatment, freedom from discrimination, and a life free from harm. Workplace sexual harassment, a form of gender discrimination, violates these fundamental rights, impacting productivity and well-being. Socio-cultural norms further exacerbate inequality, placing victims in a gender hierarchy that affects work and society.

Despite the seriousness of sexual harassment, many women don’t report incidents due to fears of repercussions on their job or personal status. Recognizing it as a violation of women’s rights and a form of violence, the Sexual Harassment of Women at Workplace Act of 2013 aims to create safe work environments that uphold equality and opportunity. Effective implementation of this law can empower women to assert their rights to equality, safety, and fair working conditions globally. Ensuring workplace security is crucial for inclusive growth and increased female participation in the workforce, though the full extent of the problem remains challenging to quantify due to underreporting.

What Is POSH Act

In India, the Sexual Harassment of Women at Workplace Act of 2013 safeguards women from such misconduct, offering mechanisms for prevention and redressal. The Act was passed by Parliament in the 64th year of India’s Republic, extending its coverage nationwide. It officially took effect on December 9, 2015, once the Sexual Harassment of Women at Workplace Rules were enforced. Typically, laws become active upon notification, but in this instance, the Act required publication in the Gazette after the rules were finalised, resulting in an 8-month delay before implementation.

The introduction to ‘Statements of Objects and Reasons’ in any law provides insight into why it was created. In this Act, it’s explained that sexual harassment hinders upon women’s fundamental rights to equality, life, and liberty under Articles 14, 15, and 21 of the Indian Constitution. This act states that such harassment violates the right to work of an individual. 

The Act’s ‘Statement of Objects and Reasons’ highlights Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which calls on states to eradicate workplace discrimination against women. It emphasizes that sexual harassment, as a form of gender-based violence, can impede women’s equality in the workplace. The law ensures protection for all women, irrespective of their employment status, and acknowledges the Supreme Court’s directives on this matter until formal legislation is enacted.

CEDAW is an international treaty adopted by the United Nations General Assembly in 1979. The Act’s reference to Article 11 of CEDAW indicates its commitment to aligning national laws and policies with international standards to promote gender equality and eliminate discrimination against women, particularly in the context of workplace environments.

Vishaka Guidelines 

The Vishaka guidelines are a set of guidelines instituted by the Supreme Court of India in 1997 to protect women from sexual harassment in the workplace. 

Bhanwari Devi, a Dalit woman working in rural development in Rajasthan, was gang-raped in 1992 for trying to stop child marriages. This incident highlighted the risks faced by women in such roles, underscoring the urgent need for protective measures.

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This led to women’s rights activists and lawyers filing a PIL with the Supreme Court of India. The Vishaka Guidelines as a result was created in 1997, providing legal guidelines for addressing sexual harassment at work. The Supreme Court’s judgment marked a significant victory for women’s groups, NGOs, feminists, and lawyers, shedding light on the issue of workplace sexual harassment in India.

The key aspects of the Vishaka guidelines instituted by the Supreme Court of India include :

  1. Definition of sexual harassment: The guidelines provided a broad definition of sexual harassment, including physical contact, demands for sexual favors, sexually colored remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
  2. Shifting accountability from individuals to institutions: The guidelines made it mandatory for employers to take preventive steps against sexual harassment, such as prohibiting it, publishing policies, setting up complaint committees, and providing a safe work environment. This shifted the onus from just the individual perpetrator to the institution as well. 
  3. Prioritizing prevention: The guidelines emphasized the importance of preventive measures, requiring organizations to take appropriate steps to prevent sexual harassment in the workplace. This included notifying the prohibition of sexual harassment and incorporating it into conduct and disciplinary rules. 
  4. Provisions of an innovative redressal mechanism: The guidelines mandated organizations to set up internal complaint committees to investigate and redress sexual harassment complaints. These committees were required to have a majority of women members, providing a novel approach to handling such cases

While the Vishaka guidelines were groundbreaking, they have now been superseded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which provides a comprehensive legal framework to address sexual harassment. 

Key Terms Under POSH Act

  1. Sexual harassment :The POSH Act defines sexual harassment broadly, covering unwelcome sexual behavior in various forms such as physical contact, verbal comments, or displaying offensive material. It includes situations like promising job benefits, threatening adverse consequences, or creating an intimidating or offensive work atmosphere. Quid pro quo harassment, a form of sexual blackmail, is also addressed where advancement is offered in exchange for sexual favours or punishment for refusal. The Act emphasises that harassment can create a hostile work environment, with examples like inappropriate comments about appearance. The determination of harassment as hostile depends on the internal committee’s assessment since there’s no clear-cut test, and each case is evaluated based on its specifics and context.
  2. Employees :The POSH Act defines employees expansively, covering regular, temporary, and ad hoc workers. It includes those in daily wage roles, engaged directly or through agents, coworkers, probationers, trainees, or apprentices, whether paid or not, voluntary or not, and regardless of explicit or implied terms of employment.
  3. Workplace :The POSH Act acknowledges the concept of an extended workplace, understanding that harassment can occur beyond the physical workplace. As per Section 2(o) of the Act, a ‘workplace’ encompasses any location an employee visits as part of their job duties, including transportation provided by the employer for commuting to and from work.

Key Highlights Of POSH Act

  1. According to Section 4 of the POSH Act, organizations with ten or more employees must establish an Internal Committee to address sexual harassment complaints. This committee was previously known as ‘‘Internal Complaints Committee’ but the word ‘Complaints’ was omitted to widen its scope.
  2. Before, employers weren’t mandated to have an internal mechanism for handling sexual harassment complaints. Now, if such a mechanism isn’t in place, a Local Complaints Committee (LC) must be formed at the district level to address these complaints. This applies when the employer has less than 10 employees or when the complaint involves the employer directly.
  3. Under Section 5 of the POSH Act, district governments are responsible for establishing LCs to address complaints from the unorganised sector or places without an Internal Committee (IC). LCs are crucial for cases involving domestic workers or complaints against the employer or third parties outside the organisation.

The LC composition includes:

  1. A female chairperson who is a women’s rights activist or social worker.
  2. A local woman nominated from the district.
  3. Two NGO members, one specialising in women’s issues and preferably with legal expertise. At least one member should be from Scheduled Castes or Scheduled Tribes.
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Procedure Of Complaint 

Under Section 9 of the POSH Act, sexual harassment complaints can be filed with either the Internal Committee or the Local Committee. Here’s the process:

  1. The aggrieved woman should file the complaint within three months of the incident, or within three months of the most recent incident for repeated occurrences.
  1. The Internal or Local Committee can extend this deadline if they find valid reasons for the delay, which must be documented.
  1. If the woman can’t submit a written complaint, the committee will assist her in doing so.
  1. If the woman is unable to file a complaint due to physical or mental incapacity, death, or any other reason, someone authorised by her can file it with her written consent.

Section 10 of the POSH Act allows the Internal Committee or Local Committee to mediate a complaint if the aggrieved woman requests it. This informal process, called conciliation, aims to reach a mutual agreement between the parties before starting a formal investigation. However, monetary settlements are not permitted during conciliation. If an agreement is reached, it must be documented and shared with both the aggrieved woman and the respondent. Once a settlement is reached, the committee cannot conduct a formal investigation under the POSH Act.

Upon receiving a complaint, the Local Committee or Internal Committee can suggest temporary actions to the employer, such as:

  1. Relocating either the complainant or the accused.
  2. Providing an extra three months of leave to the complainant.
  3. Prohibiting the accused from evaluating the complainant’s work or preparing her confidential reports, which can be assigned to someone else.

Penalty And Compensation Under POSH Act

Under Section 15 of the POSH Act, compensation for aggrieved women is determined by considering several factors. These include the mental trauma, emotional distress, and suffering endured by the victim, along with any loss of career opportunities. The costs of physical and mental health treatments are also taken into account. The perpetrator’s income and status are considered, and the feasibility of lump-sum or instalment payments is evaluated. If the respondent fails to pay the ordered compensation, the Internal Committee can escalate the matter to the relevant District Officer for recovery.

Under the POSH Act, an employer can penalize an employee for sexual harassment in various ways. This includes disciplinary actions as per the organisation’s service rules. In cases where such rules are absent, disciplinary measures may include issuing a written apology, a warning, a reprimand, censure, withholding promotions or pay raises, termination from employment, mandatory counselling, or community service. Additionally, Section 13 of the Act allows for reducing the harasser’s wages to compensate the aggrieved woman.

False Complaints 

Section 14 of the POSH Act addresses actions against complainants who misuse protections by making false or malicious claims. If a complaint is proven to be false or malicious, disciplinary measures can be taken based on the organisation’s service rules. In the absence of such rules, actions can include warnings, reprimands, withholding promotions or raises, termination, counselling, or community service. Importantly, lack of sufficient evidence doesn’t automatically mean a complaint is false or malicious. While Section 14 aims to deter frivolous complaints, it may also discourage genuine witnesses or complainants without enough evidence.

Privacy Safeguards In The POSH Act

Section 16 of the POSH Act defines the importance of confidentiality in handling sexual harassment cases. It specifies that information related to workplace sexual harassment is not subject to the Right to Information Act, 2005. Moreover, the Act prohibits the disclosure of complaint details, including names and addresses of involved parties, proceedings, committee recommendations, and outcomes, to the public, press, or media in any form.

Under the POSH Act, information about justice served to sexual harassment victims can be shared without revealing their identities. This transparency not only deters future misconduct but also demonstrates the company’s commitment to a safe workplace.

Section 17 of the POSH Act states that breaching confidentiality rules can result in disciplinary action or a fine of Rs 5,000.

Under Section 26 of the POSH Act, failing to establish an IC can lead to a fine of up to Rs 50,000, which may double for repeated offences. The entity could also face de-registration or loss of certain licences, although the specific licences are unspecified. Additionally, all offences under the Act are non-cognizable, as stated in Section 27.

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Limitations Of The POSH Act

Over time, various drawbacks and shortcomings in the Act have hindered its effectiveness, impacting women negatively. It’s crucial to recognize and rectify these gaps to ensure better protection and support for women. Some of them are:

  1. Section 3 of this act defines restriction on harassment of women at her workplace. The Act lacks protection for employees other than women regarding workplace sexual harassment. It defines aggrieved parties as women only, excluding redress for men or LGBTQ+ individuals. While aimed at protecting historically disadvantaged women, this bias perpetuates stereotypes and undermines workplace equality. A gender-neutral law mandating comprehensive policies for addressing sexual harassment by all genders and LGBTQ+ individuals is necessary.
  2. Many women hesitate to report workplace harassment due to fears of retaliation from the harasser or the organisation, including social stigma, embarrassment, or further harassment. Moreover, complaints against senior employees can lead to increased hostility from peers or supervisors, negative references for future employment, or even job loss.
  3. Section 12 allows for actions like transfers or leave during inquiries, there are no clear measures to ensure a safe working environment for the complainant.
  4. Section 19 outlines employer responsibilities but lacks provisions to prevent stigmatisation or harassment of complainants. This absence of safeguards suggests a lack of security at work, often leading to the need for the complainant to seek employment elsewhere for safety. 
  5. The workers in informal sector often consider their experiences of sexual harassment as insignificant and prefer to ignore them rather than to navigate a lengthy legal process
  6. Sections 21, 23, 24, and 25 of the Act mandate government oversight of Internal Committees, Local Committees, employers, and overall Act implementation. This includes monitoring sexual harassment cases filed and resolved in workplaces. Monitoring compliance is essential to identify and address shortcomings, as well as to hold accountable parties failing in their obligations. Without such scrutiny, there are no penalties for non-compliance, making the law less effective.
  7. The Act faces implementation challenges due to certain technicalities. For instance, Section 9 requires sexual harassment complaints to be filed within three months of the incident, with a possible extension of another three months under specific circumstances. Additionally, the Act does not allow for anonymous complaints.

Worldviews On Sexual Harassment 

The International Labour Organisation (ILO) is a UN agency focused on social justice and labour rights, with 187 member countries. It defines sexual harassment as any unwanted sexual behavior that creates a hostile work environment. This issue is widespread globally, affecting employees across different countries. However, responses to sexual harassment vary, often depending on the affected women’s discretion.

The 1981 UN Convention on Discrimination Against Women defines sexual harassment as unwelcome sexually determined behavior, including physical contact, advances, sexual remarks, and demands. This behaviour can be humiliating, pose health and safety risks, and is discriminatory when objecting could lead to employment disadvantages or a hostile work environment.

Conclusion 

Sexual harassment persists across societies, transcending barriers like race, gender, and color in both developed and developing nations. It can affect individuals regardless of their gender, with various factors contributing to its occurrence such as gender discrimination, power imbalances, a permissive environment, and the mindset of the perpetrator. Sexual harassment encompasses more than just demands for sexual favors or physical contact; it can also involve psychological pressure, coercion, or unwanted sexual attention experienced by the victim.

Indira Gandhi, while addressing the UN Women’s Conference in 1975, emphasised the importance of women’s emancipation for overall human development. The 20th century saw women asserting their rights, including economic independence through formal labour force participation. Protecting women’s rights, especially against workplace sexual harassment is crucial as they become more involved in nation-building efforts.

The POSH Act should include clear guidelines on who it applies to, how it holds individuals accountable, how it should be implemented, and how it will be monitored to promote better reporting. Employers and authorities should promote and adopt best practices to identify and address workplace harassment effectively, ultimately enhancing workplace productivity. Proactive initiatives that raise awareness and promote prevention are crucial in preventing unfavourable working conditions. Despite the disadvantages, the POSH Act remains a foundation for workers to look forward to a reliable law. 

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