The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex that is severe or pervasive and affects working conditions or creates a hostile work environment. The victims who often go through various physical and psychological effects, for a very long time did not receive the protection from sexual harassment faced by them in court granted under the Constitution and national/state legislations. To tackle this widely prevalent problem the Ministry of Women and Child Development passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, effective from December 9, 2013. The Ministry also made certain rules regarding the same called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. Commonly known as POSH Policy or Prevention of Sexual Harassment of women at workplace
The Act was enacted after 16 years of the Supreme Court judgment in Vishaka & Ors. vs. State of Rajasthan & Ors. (1997 (7) SCC 323). The case was filed by an NGO called Vishaka regarding the brutal gang-rape of a grassroot level worker, Bhanwari Devi while at work in the year 1992. Raped for preventing child marriages in the village, the guidelines known as the Vishakha guidelines were the culmination of a long fight for justice.The apex Court, held that sexual harassment at workplace besides being discriminatory to women, is violative of a woman’s right of equality, to practice any profession and to right to life with dignity. The guidelines laid down a mechanism for employers to address such complaints and constitute a committee to look into these matters. This was to be treated as a declaration of law until relevant legislation was enacted by the parliament.
The Protection of Women against Sexual Harassment at Work Place Bill, was introduced in Lok Sabha on December 7, 2010. Further changes were made to the original bill making it the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013. This clearly indicated the government’s stance on not only protection but also prevention. The Act has defined what constitutes sexual harassment under Section 2 (n) and states that any of the following (directly or by implication) shall mean sexual harassment: (1) physical contact and advances; (2) a demand or request for sexual favours; (3) making sexually coloured remarks; (4) showing pornography; (5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The Act, under Section 3, has further widened the definition of sexual harassment by including the following circumstances : (1) implied or explicit promise of preferential treatment in the victim’s employment; (2) implied or explicit threat of detrimental treatment in the victim’s employment; (3) implied or explicit threat about the victim’s present or future employment status; (4) interferes with the victim’s work or creating an intimidating or offensive or hostile work environment for her and (5) humiliating treatment likely to affect the victim’s health or safety.
POSH law protects only women and is not gender neutral. A man being sexually harassed can’t invoke the POSH law but has to rely on company policies prohibiting harassment. The POSH policy is applicable to all female members of the company including employers and those who are employed on regular, temporary or on a daily wage basis. it also extends to the customers, clients, interns, contract workers etc. however companies are working towards making their posh policies gender neutral to ensure equal protection and representation of its workforce.
Workplace [section 2 (o)] has been defined as private sector organisation / private venture / undertaking / enterprise / institution / establishment / society / trust / non-governmental organisation / unit or service provider and places visited by employee (arising out of or during the course of employment, including transportation provided by employer for undertaking journey). It also introduces the concept of an “extended workplace.” Which includes any place visited by the employee during the course of employment including transportation and any official event.
According to Article 19 POSH Law mandates every employer to:
a. Promoting a gender sensitive workplace and removing the underlying factors that contribute towards creating a hostile working environment against women;
b. provide a safe working environment;
c. formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace;
d. display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the IC;
e. declare the names and contact details of all members of the IC;
f. organize workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the IC;
g. provide necessary facilities to the IC for dealing with the complaint and conducting an inquiry;
h. cause to initiate action, under the Indian Penal Code, 1860 (“IPC”) or any other law 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;
i. provide assistance to the aggrieved woman if she so chooses to file a complaint in relation to the offence under the IPC or any other law for the time being in force;
j. treat sexual harassment as a misconduct under the service rules and initiate action for misconduct;
k. prepare an annual report with details on the number of cases filed and their disposal and submit the same to the District Officer;
l. monitor the timely submission of reports by the IC.
Penalty: If the employer fails to comply with the law then a fine of Rs.50,000/- can be imposed. Repeated non-compliance results in twice the punishment, cancellation of license, withdrawal of registration etc.
The government of India ratified the convention on the elimination of all forms of discrimination against women (CEDAW) on June 25th 1993. By passing the legislation on sexual harassment at workplace it fulfilled its obligations towards the general recommendation 19 of the convention aiming to provide measures for the elimination of such harassment.
As per the act All workplaces with 10 or more employees are required to constitute an Internal Committee (“IC”) with a minimum of four members , half of them being women. All complaints of a workplace with less than 10 employees go to local complaints committee presided by district officers. The complaint is needed to be lodged within 3 months of incident along with any evidence or names of witnesses. The committee can extend the timeline to another 3 months at its own discretion. In-house legal departments can be instrumental in assisting the IC members with interpreting the Act and the Rules judiciously.
An aggrieved person unable to lodge the complaint can be helped by any family member/friend /co-worker having knowledge of the incident. The matter is tried and settled by the IC after which on the basis of aggrieved persons dissatisfaction with the settlement, the case moves to an inquiry. If found guilty corrective measures are taken including suspension, counselling, formal apology etc
Relief to the victim includes transferring the aggrieved woman or the respondent to any other workplace or granting leave to the aggrieved woman up to a period of three months (in addition to the leave she would be otherwise entitled ( section 12) and restraining the respondent from reporting on the work performance of the aggrieved woman or writing her confidential report, and assign the same to another officer ( section 8). The IC may take into account the mental trauma, emotional distress, medical expenses, loss in career opportunity while granting compensation ( article 15)
With more and more women joining the workforce, it becomes a necessity to provide for the prevention and protection against such offences. Though not gender neutral the posh act does show its commitment to the citizens fundamental rights. It is of utmost importance for organisations nowadays to encourage safe and secure work environments, eliminating all forms of discrimination.