Sexual Harassment & PoSH Act

BY VEENA GUPTA, LL.B.
Founder Seam Group

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Long bygone are the days when men used to be the sole bread winners of a family. Globalization has brought a radical change in the status of women worldwide. However, with the larger influx of women in the mainstream workforce of India, sexual harassment at workplace has assumed greater dimensions.

Workplace sexual harassment is a form of gender discrimination which violates men/ women’s fundamental right to equality and right to life, guaranteed under Articles 14, 15 and 21 of the Constitution of India (Constitution).

Workplace sexual harassment not only creates an insecure and hostile working environment for women but also impedes their ability to delivering in today’s competing world. Apart from interfering with their performance at work, it also adversely affects their social and economic growth and puts them through physical and emotional suffering. More than 40-60 percent of women face sexual harassment at workplace every year, and only a handful of them come out in the open and are brought to the notice of the Authorities.

THE PoSH ACT

India’s first legislation specifically addressing the issue of workplace sexual harassment – the Prevention of Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) was enacted on 9 December 2013. The Government also subsequently notified the rules under the PoSH Act titled the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (PoSH Rules). The year 2013 also witnessed the promulgation of the Criminal Law (Amendment) Act, 2013 (Criminal Law Amendment Act).

PoSH Act aims to ensure the safety of women in the workplace and protect them against sexual harassment. Sexual harassment not only violates a woman’s fundamental right to equality as per articles 14 and 15 of the constitution but also infringes upon her right to live with dignity and the right to practice any profession or carry on any occupation or business, which are guaranteed under articles 21 and 19 respectively.

Furthermore, the right to work with dignity and protection of women against sexual harassment are basic human rights that are universally recognized by international conventions such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). It is important to note that the PoSH Act has also been ratified by the government of India, emphasizing the commitment to upholding these rights and ensuring a safe working environment for women.

#ME TOO

‘Me Too’ empowers those who have been sexually assaulted through empathy, solidarity, and strength in numbers, by visibly demonstrating how many have experienced sexual assault and harassment, especially in the workplace.

Though there is much more work to be done, the #MeToo movement has helped create some progress in terms of accountability for sexual harassment at the larger institutional level in male-dominated industries and organizations, which we have already noticed in the past years. .Since then, the #MeToo movement’s legacy has broadened to encompass issues related to gender equality in the workplace and legal reforms to eliminate barriers that had prohibited victims from coming forward.

History – CASE LAW – Vishakha vs. State of Rajasthan

This is a landmark judgment that led to the enactment of the PoSH Act. It dealt with, for the first time, the evil of sexual harassment of female employees at the workplace. The case of Bhanwari Devi was a tragic incident that shed light on the challenges faced by women, especially those from marginalized communities, in seeking justice and protection from sexual violence. Bhanwari Devi’s courageous efforts to prevent a child marriage resulted in her facing brutal gang rape and subsequent mistreatment by both the community and authorities.

The mishandling of her case by the police, delayed medical examination, and the acquittal of the accused due to lack of evidence highlighted systemic failures in addressing gender-based violence and ensuring justice for survivors. The subsequent protests and legal actions, including the filing of a writ petition by the women’s rights group Vishaka, underscored the importance of upholding basic human rights and constitutional protections for women in India.

The momentous Vishaka case led to the Supreme Court issuing guidelines for the first time on the issue that emphasized the responsibility of companies to prevent sexual harassment in the workplace and establish mechanisms for addressing and resolving such incidents. This case and its aftermath have played a significant role in shaping laws and policies aimed at combating sexual harassment and promoting gender equality in India.

The Vishaka Guidelines define sexual harassment to include unwelcome sexually determined behaviour such as:

• Physical contact and advances.
• Demand for sexual favours.
• Sexually coloured remarks.
• Showing pornography.
• Or, any other such unwelcome conduct of a sexual nature.

The court emphasized that sexual harassment can create a hostile work environment and may not necessarily involve physical contact. The guidelines aim to protect individuals from such behavior and ensure a safe working environment. It is important to note that reporting incidents of sexual harassment may require courage from the victim and should be addressed promptly by the compliance mechanism.

Amendment Act 2024 (Latest)

The Private Member Bill introduced by Dr. Sasmit Patra in February 2024 aims to amend the PoSH Act 2013. This bill seeks to enhance measures addressing sexual harassment and update existing laws to better align with the evolving needs of society. It is important to highlight that the Amendment Bill of 2024 has not yet undergone discussions or approval in both houses of parliament, nor has it received the necessary presidential assent to officially become an Amendment. Consequently, the bill remains pending, with the objective of modifying two sections of The Sexual Harassment at Workplace Act, 2013.

The current Amendment Bill of 2024 seeks to prolong the established time limit of 3 (three) months for filing a sexual harassment complaint to 1 (one) year from the date of the incident, and in the case of a series of incidents, within 1 (one) year from the date of the last incident.

PoSH Act, Gender Bias & Misuse of the Act

The discussion of gender equality’s importance and the right to equality has highlighted society’s bias. In recent years this Act is being used as an advantage towards male employees. If there is a non-performance from the employees’ side, what would be the appropriate way of handling such a worker? Any revengeful act that the employer might resort to in such a regard would also be termed as sexual harassment. The act can be used as a blackmailing tool or a tool for personal gains.

There is a noticeable bias against males in such cases, and even internal complaints committees within organizations have been influenced by perceptions like ‘A woman can never lie about such things, and if she says so, the guy must have done it.’ Critics argue that the PoSH Act has contributed to an anti-men bias in society, leading to the unnecessary shaming of innocent men in cases of malicious complaints. The prevailing social judgment and the culture of naming and shaming have continued to rise, resulting in many innocent males becoming victims of humiliation. In some cases, the humiliation becomes unbearable, and individuals may resort to extreme decisions, as seen in the case of the Genpact Senior Official’s suicide.

During my years of experiences and counter discussion with the employers and authorities, it has been learnt that due to stereotypes, also may be under social and family pressure, organizations tried to suppress the cases of sexual harassment faced by a male employee. Even when a male is not found guilty yet he has to write apology letter to the girl, who has maliciously complained out of revenge etc.

We have noticed, few cases were going on social media, and after the social media outrage, the company provided the boy with a therapist, and his grievances were investigated. This is not an isolated instance. There are ‘n’ numbers of anonymous posts by male victims on apps like Reddit that throw light onto the horrific experiences of ‘them’ being subjected to. However, it’s important to note that the vast majority of sexual harassment cases are genuine, making false accusations rare.

The Real Deal

A Recent interaction with directors of some major firms, bought forward the following concerns:

• “No longer is excellence a major concern for men at work, it has been replaced by handling code of conduct with women employees.”
• “This act has unleashed legal terrorism at workplace.”
• “The enactment of this law has made workplace dangerous for men.”

In such a facade, and clash of opinions we need to understand the background of this act and handle this legal apparatus with the most sensitivity. The Act is not just a mandate for redressal but a preventive measure, it requires for employees to act before the problem occurs.

Making the Act Gender Neutral

Data shows that nearly 5% of male workers are subject to sexual harassment in the workplace. Unfortunately, unlike their female counterparts, male workers cannot route their sexual harassment complaints through the PoSH Act since it provides cover for female workers only. Few HR survey findings indicate that the inclusion of male workers under the ambit of the PoSH Act will favour the organization with a better buy-in from male employees, in implementing the Act.

Recommendations

To address the challenges of implementing the Prevention of Sexual Harassment (PoSH) Act, organizations should consider the following strategies:

1. Prioritize Awareness and Training Programs: Ensure that employees, management, and members of the Internal Committee are well-informed about the provisions of the Act through regular workshops, seminars, and online training modules. This will help foster a culture of understanding and compliance within the organization.
2. Customized Programs for SMEs: Develop tailored awareness and training programs for informal settings and small and medium enterprises (SMEs) to meet their specific needs and constraints. Collaborate with industry associations, government bodies, and non-governmental organizations to provide resources and support to SMEs in effectively implementing PoSH Act compliance.
3. Address Third-Party Harassment: Advocate for legal reforms to explicitly address and penalize instances of third-party harassment under the POSH Act. Incorporate clauses in contracts with third parties such as clients and vendors, outlining expectations and consequences for non-compliance with anti-harassment policies.
4. Establish Multiple Reporting Channels: Create various reporting channels, including anonymous options, to encourage individuals to report incidents of sexual harassment. Cultivate a supportive environment where employees feel confident that their concerns will be taken seriously and handled confidentially.
5. Gender Neutral Training along with male and female participants should be made mandatory every quarter at any organization.
6. Orientation Programme of each employee should include gender equality training.
7. Most Important for Employee is to deal all cases as equality. Give chance to man to prove innocent. Declare him accused only when he is proved guilty.
8. On Social Front: Family and friends should trust and support him in case such complaints are reported against him.

By implementing these multifaceted approaches, organizations can work towards creating a safe and respectful workplace environment that upholds the principles of the PoSH Act and effectively addresses issues of sexual harassment.

Conclusion

The PoSH Act in its current form appears somewhat biased towards women, and there is a need to include norms addressing sexual harassment cases related to other genders as well. Organizations can establish separate committees to handle complaints of sexual harassment from genders other than women. Additionally, involving the police, if deemed necessary by the company’s investigative team, could serve as a deterrent against harassment of other genders at the organizational level.

The current situation reflects women’s fear of speaking up due to societal judgment and men’s concerns about false accusations that could harm their reputation. To address these issues, society should adopt a less judgmental approach towards complainants and the accused, refraining from making premature judgments before the complaint’s resolution.

Adhering to the principle of ‘innocent until proven guilty’ is crucial. Governments and corporations should focus on establishing effective complaint redressal systems to encourage women to report violations without hesitation. The investigative team should conduct unbiased investigations in a gender-neutral manner to ensure fairness for both the complainant and the accused. Organizing PoSH training and compliance sessions, with the assistance of legal experts, can help reduce workplace harassment incidents. Promoting communication among employees to foster gender equality awareness is essential for creating a respectful workplace environment.

Victims now feel more comfortable reporting suspected incidents of sexual harassment thanks in large to a part of the Act. Since the Internal Committee (IC) is the focal point of the Act, it is crucial for its members to receive legal education and training to fulfill their quasi-judicial duties effectively and ensure the Act and Rules are implemented efficiently. Amending the Act to mandate the appointment of at least one IC member with legal experience would be a positive step towards enhancing the effectiveness of the committee in addressing cases of sexual harassment.

* Views expressed in the article are solely of the Author

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