Sexual Harassment at Workplace: POSH Act of 2013

In the evolving landscape of gender roles propelled by globalization, the surge in workplace sexual harassment emerged as a concerning issue with the increasing presence of women in India’s workforce. In response, the POSH Act of 2013 was enacted to curb this violation of fundamental rights. Despite its noble objectives, challenges such as lack of clarity, inadequate awareness, and hesitancy to report incidents persist. This article serves as a comprehensive guide, shedding light on the POSH Act to educate stakeholders and promote safer workplaces, emphasizing prevention in our diverse society.

What is the POSH Act?

The POSH (Prevention of Sexual Harassment) Act, implemented to prevent and safeguard women against workplace sexual harassment, mandates every company with more than ten employees to establish an Internal Complaints Committee (ICC) following specific guidelines. The ICC is responsible for promptly and confidentially addressing complaints of any form of sexual harassment reported by women. Its crucial to note that the POSH Act is not gender-neutral, allowing only women to file complaints under its provisions.

Provisions of the POSH Act

The legislation defines workplace sexual harassment and establishes a framework for addressing complaints, incorporating safeguards against unfounded or malicious accusations. Key provisions include:

• Every employer must establish an ICC at each office or branch with more than 10 employees.
• The ICC, empowered with the authority of civil courts, is obligated to facilitate conciliation before initiating an inquiry if requested by the complainant.
• Penalties are imposed on employers for non-compliance with the Act.
• To ensure a harassment-free environment for women in unorganized sectors, the State Government designates a District Officer in each district, responsible for forming a Local Complaints Committee (LCC).

SHe-Box

The Ministry of Women & Child Development introduced the SHe-Box as a platform for women, regardless of employment status, to register complaints related to sexual harassment. The portal ensures that complaints are promptly forwarded to the relevant authority with jurisdiction to address the matter.

Development of Legislation Addressing Workplace Sexual Harassment: 

The legal journey addressing workplace sexual harassment in India commenced with the landmark Vishakha v. State of Rajasthan judgment by the Supreme Court. The judgment mandated guidelines for employers until the formal implementation of the POSH Act in 2013.

Defining Sexual Harassment under the POSH Act

The POSH Act aligns its definition of ‘Sexual Harassment‘ with the Supreme Court’s interpretation in the Vishakha Judgment. It encompasses unwelcome sexually suggestive behaviour, whether explicit or implied, covering physical contact, requests for sexual favours, sexually coloured remarks, displaying pornography, or any other unwelcome conduct of a sexual nature.

Determining Instances of Sexual Harassment: The Act outlines specific circumstances that may amount to sexual harassment, including promises of preferential treatment, threats of detrimental treatment in employment, interference with work leading to an intimidating or offensive work environment, or humiliating treatment affecting the lady employee’s health or safety.

Challenges in Determining Harassment: Challenges arise due to the subjective nature of harassment, the absence of a clear test for a ‘hostile working environment,’ and the need for nuanced analysis considering different perspectives. The Act recognizes that sexual harassment is a subjective experience and requires careful consideration of varying perspectives.

Empowering Women in the Workplace: Unpacking the Sexual Harassment of Women at Workplace Act, 2013

The Act, enacted against the backdrop of gender-based discrimination, signifies a paradigm shift in reshaping workplace dynamics. Rooted in constitutional principles, it aligns with global human rights standards, providing a comprehensive legal framework to prevent and address sexual harassment.

Characteristics Defining Impact

• The Act’s impact is defined by its comprehensive definition of sexual harassment, the establishment of committees for complaint redressal, and mechanisms for accountability.
• It stands out for its inclusivity, covering various sectors and reflecting a commitment to creating safe and harassment-free spaces for women.

A Progressive Shift: The Sexual Harassment of Women at Workplace Act, 2013, symbolizes a societal commitment to empowering women, fostering inclusive workplaces, and upholding their dignity and equality. As the nation continues its journey towards inclusivity, the Act’s impact is poised to resonate across diverse professional realms, marking a positive stride towards gender equity and justice.

Development of Legislation Addressing Workplace Sexual Harassment

The foundational principles of India’s Constitution have long emphasized the eradication of gender-based discrimination. The commitment to gender equality is explicitly embedded in various parts of the Constitution, including the Preamble, fundamental rights, fundamental duties, and Directive Principles. Nevertheless, the issue of workplace sexual harassment in India gained official recognition for the first time through the landmark Vishakha v. State of Rajasthan judgment by the Supreme Court.

In this significant ruling, the Supreme Court outlined specific guidelines and directed the Union of India to establish an appropriate legal framework to address workplace sexual harassment. Ironically, it took 16 years after the Vishakha Judgment for the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act and the corresponding POSH rules.

Before the existence of a dedicated law, the Supreme Court, in the absence of legislation, mandated certain guidelines known as the Vishakha Guidelines. These guidelines compelled every employer to establish mechanisms for addressing grievances related to workplace sexual harassment. Employers adhered to these guidelines until the formal implementation of the POSH Act.

Determining Instances of Sexual Harassment

The POSH Act outlines specific circumstances that, among others, may amount to sexual harassment. These include an implied or explicit promise of preferential treatment or a threat of detrimental treatment in employment. It also covers situations involving an implied or explicit threat to present or future employment status, interference with work leading to an intimidating or offensive work environment, or humiliating treatment affecting the female employee’s health or safety.

As evident, the definition under the POSH Act is comprehensive, covering both direct and implied sexual conduct, ranging from physical to verbal or written behaviour. The crucial factor is that the conduct is unwanted and unwelcomed by the recipient. This definition extends to quid pro quo sexual harassment, wherein a person in power pressures a woman employee, usually a subordinate for sexual favours in exchange for workplace advancement or the threat of adverse employment action.

Sexual Harassment at Workplace Act, 2013: An Overview

Workplace environments should be spaces of professionalism, collaboration, and respect. The Sexual Harassment of Women at Workplace Act, 2013, plays a pivotal role in ensuring this. The following are its key components:

I. Creating a Safe Space

• Objective: Safeguard women from workplace harassment.
• Approach: Establish a clear framework for a secure and respectful atmosphere.

II. Filing a Complaint

• Objective: Ensure timely resolution of harassment complaints.
• Provision: Women can file complaints within a specific timeframe.
• Impact: Quick reporting for prompt resolution.

III. Facilitating Complaint Procedures

• Recognition: Not everyone can easily express grievances in writing.
• Provision: Allow assistance in filing complaints for open communication.

IV. Conciliation as a Resolution Avenue

• Introduction: Include conciliation as a non-monetary resolution.
• Emphasis: Prioritize understanding of financial settlements.

V. Inquiry into Complaints

• Structure: Establish a fair mechanism for assessing complaints.
• Ensuring Fairness: Provide both parties with an opportunity to present their case.

VI. Balancing Action and Confidentiality

• Approach: Balance action against harassment with confidentiality.
• Outcome: Victims can come forward without fear, ensuring accountability.

VII. Employer’s Responsibility in Prevention

• Employer’s Duties: Actively prevent harassment through awareness.
• Legal Facilitation: Help victims pursue legal actions if needed.

VIII. District Officer’s Oversight

• Involvement: Engage District Officers in monitoring.
• Collaborative Effort: Emphasize collaboration to curb harassment.

IX. Annual Reporting for Accountability

• Requirement: Mandate annual reports for organizational accountability.
• Purpose: Ensure transparency and continuous process improvement.

X. Penalties for False Complaints

• Acknowledgment: Recognize the importance of honest complaints.
• Provision: Include penalties for false accusations.
• Purpose: Safeguard against misuse, ensuring a fair resolution process.

Conclusion

In the transformative landscape of workplace dynamics in India, the Sexual Harassment of Women at Workplace Act, 2013, stands as a beacon of change. Rooted in constitutional principles and aligned with global human rights standards, this legislation signifies a paradigm shift toward gender equity and justice. It not only defines sexual harassment comprehensively but also establishes mechanisms for prevention, redressal, and accountability. As the nation continues its journey towards inclusivity, the Act’s impact is poised to resonate across diverse professional realms, fostering safer, more inclusive workplaces and upholding the dignity and equality of women.

Frequently Asked Questions (FAQs):

1. Why was the POSH Act of 2013 enacted, and what were the challenges it aimed to address?

The POSH Act of 2013 was enacted to combat workplace sexual harassment in India. It aimed to address challenges such as lack of clarity, inadequate awareness, and hesitancy to report incidents, hindering effective implementation.

2. How does the POSH Act define sexual harassment, and what instances does it cover?

The POSH Act defines sexual harassment as unwelcomed sexually suggestive behaviour, explicit or implied. It covers physical contact, requests for sexual favours, sexually coloured remarks, displaying pornography, or any other unwelcome conduct of a sexual nature. Instances may include promises of preferential treatment or threats of detrimental treatment in employment.

3. What challenges exist in determining instances of sexual harassment under the POSH Act?

Challenges include the subjective nature of harassment, the absence of a clear test for a ‘hostile working environment,’ and the need for nuanced analysis considering different perspectives. The definition relies on specific facts and circumstances, making the determination context-dependent.

4. How does the Sexual Harassment of Women at Workplace Act, 2013, contribute to workplace safety?

The Act takes a bold stance by prohibiting sexual harassment and provides a nuanced understanding of instances that may constitute harassment. It mandates the formation of Internal Complaints Committees, ensuring timely resolution, and introduces Local Committees for areas facing challenges in setting up internal committees.

5. What sets the Sexual Harassment of Women at Workplace Act, 2013, apart, and how does it balance benefits and challenges?

The Act sets itself apart by its comprehensive definition of sexual harassment and its inclusivity across various professions. While it fosters a safer workplace culture, challenges may arise in the implementation phase due to the subjective nature of certain definitions, emphasizing the need for ongoing dialogue and refinement.