As Bhanwari Devi tried to stop child marriage, her family members Gang raped Bhanwari Devi. She went to police who refused to take a case, and the court said they were from a wealthy family and would not even touch women from lower cast, leave alone rape. She took help from an NGO and there came out Vishaka guidelines as they filed a Public Interest Litigation (PIL). These guidelines was eventually turned into an Act to 2013.
POSH Act Overview and Evolution: tracing its origins from the Vishakha guidelines to the current legal framework and emphasizing its application to all employees regardless of gender.
.Vishakha Guidelines Background: The Vishakha guidelines were introduced in 1997 following the Bavri Devi case, which highlighted the need for workplace protections against sexual harassment. These guidelines were the precursor to the POSH Act and were designed to protect female employees from harassment at work place. POSH Act (Sexual Harassment of Women at Workplace Prevention, Prohibition, and Redressal Act, 2013) was enacted after the Vishakha guidelines, providing a statutory framework for addressing sexual harassment and extending protections to all employees, not just women.
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Applicability and Scope: The POSH Act applies to any organization with 10 or more employees, regardless of gender, and mandates the formation of an Internal Committee (IC) to handle complaints of sexual harassment.
Internal Committee (IC) Roles and Protocols: organizations with 10 or more employees must form an Internal Committee, which is distinct from the HR committee and has powers similar to a civil court, including summoning parties and requesting evidence. The discussion covered the need for committee members to be available for investigations and meetings, sign nomination letters, and manage personal and professional commitments to ensure effective participation in IC activities.
Conflict of Interest Handling: If a committee member has a work relationship with a respondent or complainant, they should recuse themselves from the investigation to maintain impartiality and avoid bias.
POSH Policy Implementation and Awareness: There is a need of well-drafted POSH policies, visible posters in multiple languages, and regular awareness and sensitization programs to educate all employees, including contract and facility staff.
Posters and Language Accessibility: POSH posters are displayed in English and are being prepared in regional languages to ensure accessibility for all employees, including facility management and third-party vendors
Awareness and Training Sessions: can be conducted virtually or through e-learning modules, to educate employees about sexual harassment and the available redressal mechanisms.
Annual Reporting and Compliance Requirements: In Karnataka, with the Women and Child Welfare Department, detailing the necessary contents and deadlines. Organizations must file annual reports by January 31st (or February 28th in Gurugram), including details of training sessions, IC meetings, POSH policy, IC constitution, and case statistics, with additional filing in Karnataka to the Women and Child Welfare Department.
Handling Misconduct and Managerial Responsibility: Sexual harassment must be treated as misconduct, and managers who attempt to resolve such cases informally or fail to escalate them to the IC may also face action.
Support Measures for Complainants: Employers are expected to provide support such as confidential meeting spaces, work-from-home options, or transportation for complainants or respondents who feel unsafe during investigations.
Implementation of IC Recommendations: While the IC makes recommendations, the employer is responsible for implementing actions such as warnings or terminations within the prescribed timeframe.
Defining and Addressing Sexual Harassment: Know, the importance of subjective experience, the distinction from workplace harassment, and the role of consent and intent,
Types of Sexual Harassment: Examples discussed included physical contact without consent, requests for sexual favors, sexually colored remarks, inappropriate gestures, and sharing explicit content, with emphasis on the impact on the complainant.
Subjective Experience and Intent: The perception and experience of the complainant are central, and the IC focuses on the impact rather than the respondent's intent, as illustrated by several case studies.
Distinguishing Workplace Harassment: Not all inappropriate behavior constitutes sexual harassment; some cases may be classified as workplace harassment after investigation, depending on context and evidece
Consent and Generational Differences: The importance of consent was highlighted, and Anand noted that generational and cultural differences can affect perceptions, requiring careful investigation by the IC.
Complaint Handling and Redressal Mechanisms: Ankita explained the procedures for filing complaints, the necessity of written complaints, the investigation process, conciliation options, and timelines for each stage, with clarifications
Written Complaint Requirement: Complaints must be submitted in writing (including email), and the IC should encourage complainants to formalize their complaints to ensure proper investigation and avoid future disputes.
Investigation and Natural Justice: Upon receiving a complaint, the IC sends a copy to the respondent, collects responses, examines evidence and witnesses, and ensures both parties are heard, following principles of natural justice.
Conciliation and Inquiry Options: Complainants may choose conciliation for mutual settlement (excluding monetary terms), but if breached or if the respondent requests, a full inquiry is conducted, leading to recommendations by the IC.
Timelines and Appeals: The IC has 90 days to complete investigations, 10 days to submit recommendations, and the employer has 60 days to act; dissatisfied parties may appeal to the court within 90 days.
Extended Workplace Definition: Athe definition of workplace under POSH includes not only the office but also client sites, travel, virtual meetings, and social events, with examples of cases occurring outside traditional office settings.
Scope of Workplace: The workplace includes any location where employees interact for work purposes, such as client sites, cabs, cafeterias, business travel, virtual meetings, and even social gatherings like office parties or outings.
Case Examples: where incidents at coffee shops, pubs, or during travel were investigated as workplace sexual harassment due to the employment relationship between the parties.
IC Member Conduct and Best Practices: including building rapport with complainants, ensuring a safe environment, filtering personal biases, and maintaining confidentiality.
Building Rapport and Comfort: IC members are advised to begin meetings by building rapport and creating a comfortable environment for complainants to share their experiences, avoiding intimidating behavior or expressions.
Confidentiality and Gender Sensitivity: If a complainant is uncomfortable with the gender composition of the IC during meetings, arrangements should be made for only relevant members to be present, ensuring confidentiality and comfort.
Handling Preliminary Complaints: At the preliminary stage, complainants may approach any IC member or HR, but HR should direct them to the IC and not handle the case independently.
Avoiding Bias and Ensuring Justice: IC members must avoid personal biases, ensure both parties are heard, and base conclusions on evidence and investigation rather than initial impressions.
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