POSH

 Sexual Harassment of Women at Workplace Act

In 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, or POSH Act as it is commonly referred to, was enacted in India. The aim of the act is to protect women in the workplace from sexual harassment.

Under the Act, all employers with at least 10 employees must have an Internal Committee (IC) to provide female employees with an extra avenue for raising sexual harassment complaints. The ICC is also commonly referred to as simply the Internal Committee (IC), which is the term we use in this training.

The IC hear, investigate, and make recommendations on sexual harassment complaints.

You can report any instances of sexual harassment to:

• Any member of the IC
• Your manager or any other manager
• Human Resources
• Legal

Prevention, Prohibition, Redress

Prevention:

Under the POSH Act, employers are responsible for preventing sexual harassment in the workplace. The Act states that no woman may be subjected to any form of sexual harassment at any workplace. Under the Act, “sexual harassment” includes any one or more of the following unwelcome acts or behaviors (whether directly or by implication):

Physical contact and advances

A demand or request for sexual favors

Making sexually colored remarks

Showing pornography

Any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature

Indian case law clarifies that the types of behavior that constitute sexual harassment are not just limited to the POSH Act’s definition of sexual harassment. Any form of sexual approach or behavior can fall within this definition of sexual harassment, but the conduct must be reviewed on a case-by-case basis.

Other examples of conduct that is deemed to be sexual harassment if it occurs in conjunction with an act of sexual harassment include:

Implied or explicit promise of preferential or detrimental treatment in the workplace.

Implied or explicit threat about a woman’s present or future employment status.

Interference with a woman’s work or the creation of an intimidating or offensive or hostile work environment for her.

Humiliating treatment likely to affect a woman’s health or safety.

Indian case law states that there must be an expressed or implied sexual advance or unwelcome behavior that is sexually motivated or has a sexual undertone for it to amount to sexual harassment under the Act.

This means that sex discrimination against women, which occurs when a woman is treated less favorably than her male counterpart because of her sex, does not constitute sexual harassment. Nonetheless, this type of discrimination is still prohibited under company policy.

Employer's responsibility

Employer’s Responsibilities

Employers have several responsibilities under the Act. They must:

Create a detailed sexual harassment policy and clearly communicate it throughout the organization.

Ensure appropriate awareness and orientation on sexual harassment through the organization.

Establish an Internal Committee (IC) in every workplace so that every working woman is provided with a mechanism for redress of her complaint(s).

Ensure the Internal Committee is appropriately trained and has the required skills to carry out its role.

Prepare an annual report, which must be submitted to the appropriate state government.

Prohibition

Under the Act, confidentiality in relation to any complaints filed is assured, notwithstanding anything contained in the Right to Information Act, 2005. This means that none of the following shall be published, communicated, or made known to the public, press, or media in any manner:

Identity or address of the aggrieved woman

Identity or address of any respondents and witnesses

Any information related to conciliation and inquiry proceedings

Recommendations of the internal or local committee

Any action taken by the employer

Redressal

Written complaints can be submitted to the IC and should contain a description of the incident(s) including the dates, timings, locations, the name of the respondent(s), and the working relationship between the parties.

When a complaint is submitted to the IC, the IC will:

Acknowledge receipt of the complaint.

Prepare a file and plan for the inquiry.

Interview the parties involved (complainant, respondent, witnesses).

Assess the case.

Present their findings and recommendations.

Submit a written report to the employer.

The Role of the IC

Indian case law has clarified the duties of the IC and states that the IC cannot comment on the personal conduct of the parties involved in cases of sexual harassment. For example, if the IC is considering a sexual harassment claim and it has discovered that the parties involved had been in a consensual relationship, it is not the IC’s duty to comment on whether the relationship was appropriate or moral. This is because consensual relationships between adults are not the concern of the IC unless they negatively impact the work environment or violate a code of conduct.

When considering sexual harassment claims, the IC’s sole role is to determine the claim’s validity. If the IC rejects the claim, they can only recommend that the employer takes no action. Likewise, if a sexual harassment claim is proven, they can only recommend that the employer take appropriate action in accordance with company policy.