Sexual harassment of a woman at workplace is of grave concern to everyone on the whole. It cannot be interpreted to be in a limited sense, as it can include sexual advances and other verbal or physical harassment of a sexual nature. The victims of sexual harassment face psychological and health effects like anxiety, shame, stress, guilt, depression etc. Therefore, to overcome the menace of sexual harassment, the Government passed the Sexual Harassment of Women at Workplace Act in 2013.
How did POSH come into force?
POSH is to protect women from sexual harassment at workplace and was enacted after 16 years of the Apex Court judgment in the case of Vishaka & Ors. v. State of Rajasthan & Ors. which was filed by NGOs after the savage gang-rape of a social worker at work. The Apex Court had held that sexual harassment at work place violates the constitutional rights of women including rights of equality, right to practice any profession and right to life with dignity. In the absence of any law, the Court directed that an “effective alternative mechanism” was required to protect women of these fundamental rights violations at the workplace and to address the concern. The Apex Court further laid down important guidelines making it compulsory for every employer to provide for a mechanism to address grievances relating to sexual harassment at work place called the Vishaka Guidelines.
Law on Sexual Harassment in other countries
While the Vishaka Guidelines were laid down by the Apex Court in 1997, in the USA, one of the first cases to be decided by the US Supreme Court was in the year 1986. In a USA case namely Ellison vs. Brady, it explained the issue of sexual harassment in the following manner: “We believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. Courts “should consider the victim’s perspective and not stereotyped notions of acceptable behavior.” If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy. We therefore prefer to analyze harassment from the victim’s perspective.
A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women. A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a `great legs’ or `nice figure’. The female employee, however, may find such comments offensive.
Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object”. The characteristically male view depicts sexual harassment as comparatively harmless amusement”. In addition, Australia has implemented the Sex Discrimination Act 1984 while the United Kingdom has implemented the Sex Discrimination Act, 1975, with framing of the Sexual Discrimination and Employment Protection (Remedies) Regulations, 1993. All these measures are functional, and there is considerable body of case-law on various nuances of the issues.
What is sexual harassment under POSH?
POSH has defined sexual harassment under Section- 2 (n) and states that any of the following (directly or by implication) shall include 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.
POSH has further widened the definition of sexual harassment under Section- 3 by providing that any of the following circumstances may also amount to Sexual Harassment:
(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.
The absence of any actual physical contact or the attempt to molest the complainant need not detain one in reading the writing on the wall, as it were. The Petitioner was well past middle age and a teacher who certainly had great influence on the complainants. The lack of details of possible physical advances and any groping and other stealthy sexual advances on occasion, seemingly accidental or by design would hardly be expected to be narrated by the two women.
Who is an employer under the Act?
Under Section- 2 (g), an employer has been defined to mean any person responsible for the management, supervision and control of the workplace and management includes the person or board or committee responsible for formulation and administration of polices for such organization.
The employer is duty bound to initiate disciplinary action against the officer involved in sexual harassment, as it involves human dignity of women enshrined under Articles- 14, 15 and 21 of the Constitution and the inquiry must be fair and reasonable.
What is a Workplace under POSH?
Workplace has been defined under Section- 2 (o) as private venture / enterprise / undertaking institution / trust / establishment / unit / society / NGO / private sector organization or service provider and even the places visited by the employee in the course of employment including transportation provided by employer for the journey. Therefore, even if harassment is faced during transportation or during a lunch meeting at a restaurant, it will be covered under POSH.
As such, a logical meaning should be given to the expression “workplace” so that the purpose for which those guidelines have been framed, is not made unworkable. Workplace cannot be given a restricted meaning so as to restrict the application of the said guidelines within the short and narrow campus of the school compound. Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity.
How is the ICC required to be constituted under the Act?
Every workplace having 10 or more employees is required to constitute an Internal Complaints Committee, under POSH which provides that where the offices or administrative units of the workplace are located at different places or divisional or sub-divisional level, the ICC shall have to be constituted at all administrative units or offices.
The Act provides for a minimum of four members for the IC and states that half of IC members will necessarily have to be women and that among the four members, a presiding officer for ICC will have to be appointed, and it will have to be a woman at a senior level in that office.
If a workplace has less than 10 employees, then it need not form an ICC. All complaints in this case will go to the local complaints committee set up as per the Act by district officers of each district. Also, in a case where a complaint has to be filed against the employer himself, the local complaints committee has to be approached.
How are complaints filed and heard under POSH?
Any victim can file a complaint of sexual harassment to ICC within 3 months of the incident. The period within which one can file the complaint can also be extended to another period of three months. Also, where the aggrieved woman is unable to make a complaint due to her physical incapacity, her legal heir, relative or friend, co-worker, an officer of the National Commission for Women or State Women’s Commission may make a complaint to the ICC on her behalf, with her permission. Also, if the woman is suffering from mental incapacity, a qualified psychiatrist or psychologist or the guardian or authority under whose care she is receiving treatment or care, can file a complaint before the ICC.
ICC, before it initiates inquiry, may try to concile between the parties, if the aggrieved woman requests but monetary settlement cannot be the basis of conciliation. If conciliation is not possible, ICC will inquire into the complaint and give both parties a chance to be heard and complete the inquiry in 90 days. During the inquiry process of being heard, neither party will be allowed to bring their lawyer.
Post inquiry, ICC will have to prepare an inquiry report giving recommendations on the matter, in 10 days, and give a copy of the same to the organization / company and the concerned parties. The organization / company will have to act on the recommendations in 60 days. The Act also provides that if a victim is dissatisfied with the findings of ICC, she can appeal to a Court / tribunal. ICC has been assigned with the responsibility to submit an annual report on the no. of cases that arose and got settled during the year to the company and the company further has been mandated to include this information in its annual report and in cases of companies which do not prepare annual report, the companies are required to intimate such number of cases to the District Officer.
What relief can be given to the victim?
The ICC under Section- 12 of POSH can recommend to the employer to provide certain relief to the victim, such as transfer the aggrieved woman or the respondent to any other workplace or grant leave to the aggrieved woman up to a period of 3 months (in addition to the leave she would be otherwise entitled), during pendency of inquiry, but only if the victim makes a written request.
Rule- 8 provides for further relief to complainants during pendency of inquiry, such as 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. Compensation- While determining compensation, ICC may take note of:
(1) mental trauma, pain, suffering and emotional distress caused to the victim;
(2) loss in career opportunity;
(3) medical expenses incurred by the victim for physical or psychiatric treatment;
(4) income and financial status of the Respondent; and
(5) feasibility of such payment in lump sum or in instalments (Section- 15).
What are the duties of an employer under POSH?
The law specifies numerous duties of the employer. These duties begin at the time when an employer has to set up an internal complaints committee to ensure that aggrieved can file their complaints and seek redressal to such complaints and end at the time when the employer has provided certain data, in accordance with the provisions of the law, in relation to sexual harassment in its annual report. There are several other duties of an employer under the law, some of which are provided below: (a) Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.
(b) Display at any conspicuous place in the workplace, the penal consequences of sexual harassments: and the order constituting, the Internal Committee.
(c) Organize workshops and awareness programmes at regular intervals for sensitizing the employees with the provisions of the Act and orientation programmes for the members of the Internal Committee. With respect to workshops and awareness programs, it says that employer shall:
• Formulate and widely disseminate an internal policy or charter or resolution or declaration for prohibition, prevention and redressal of sexual harassment at the workplace intended to promote gender sensitive safe spaces and remove underlying factors that contribute towards a hostile work environment against women
• Carry out orientation programmes and seminars for the Members of the Internal Committee
• Carry out employees awareness programmes and create forum for dialogues which may involve Panchayati Raj Institutions, Gram Sabha, women’s groups, mothers’ committee, adolescent groups, urban local bodies and any other body as may be considered necessary • Conduct capacity building and skill building programmes for the Members of the Internal Committee
• Declare the names and contact details of all the Members of the Internal Committee
• Use modules developed by the State Governments to conduct workshops and awareness programmes for sensitizing the employees with the provisions of the Act
(d) Provide necessary facilities to the Internal Committee for dealing with the complaint and conducting an inquiry.
(e) Assist in securing the attendance of respondent and witnesses before the Internal Committee.
(f) Make available such information to the Internal Committee as it may require having regard to the complaint.
(g) Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under the Indian Penal Code.
(h) Cause to initiate action, under the Indian Penal Code or any other law for the time being 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) Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct.
(j) Monitor the timely submission of reports by the Internal Complaints Committee.
What is the nature of offences under the Act?
Offences under the Act are non-cognizable which means one cannot be arrested without a warrant.
What are the penalties under the Act?
If the employer does not comply with the law, they can be penalized with a fine which may extend to Rs. 50,000. On repeated non-compliance, the employer may be penalized with twice the punishment. Non-compliance can also lead to cancellation of license, withdrawal or non-renewal of registration for carrying on business, by the Government.