Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is a special legislation which was enacted with the objective of creating safe workplaces for women in our country.
As we enter the tenth year of this law, it is time that each of us, who are or will be entering into the work force, are aware of it. This article is an attempt to briefly explain the POSH Act and its important provisions.
POSH Act was formulated as a result of the Vishaka guidelines given by the Hon’ble Supreme Court of India in the case of Vishaka and Ors. vs. State of Rajasthan and Ors. This judgment came in the backdrop of the Bhanwari Devi gangrape.
It has three major elements- prevention, prohibition, and redressal. As per this act, it is the duty of the employer to provide safe working environment and take steps to prevent and prohibit sexual harassment. The POSH Act also lays down the redressal mechanism and calls for constitution of a dedicated committee to handle complaints.
What is Sexual Harassment?
The POSH Act has given a very broad definition of sexual harassment to the extent that it includes any unwelcome behaviour/act (without consent) which has a sexual connotation attached to it. This includes-
- Physical contact and advances
- Demand or request for sexual favours
- Making sexually colored remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
The act also recognizes two main types of sexual harassment namely-
- Quid Pro Quo– It is a Latin term which means ‘this for that’. In the context of this act, it means a preferential treatment in return of sexual favours or a detrimental treatment in case of denial of same.
- Hostile Work Environment- It is an environment which is intimidating and sexually charged which makes the employees feel unsafe at work.
What is a Workplace?
One of the distinctive features of this act is that it is not restricted to the mainstream definition of workplace i.e. the office premises.
Considering the dynamic nature of work across industries, the definition of workplace has also been kept very wide to include not only the office building but also places like parking lots, canteen, transportation and accommodation provided by the office when employees are travelling for work purposes, electronic communications, etc.
The pandemic and the subsequent lockdown led to a huge proportion of people working from home. However, it did not mean that the POSH Act stopped being applicable to virtual workplaces as the definition is broad. Also, it covers dwelling places/home within the definition of workplace.
Who is an Aggrieved Woman?
Considering the history of the law and the statistical data with regards to sexual violence, only women, irrespective of their age or employment status, who have been subjected to any form of sexual harassment will be considered as an aggrieved woman and hence can file a complaint under the POSH Act.
The scope of this Act has also expanded over time. Now a transwoman can also file a complaint of sexual harassment at workplace. This was the result of the recognition of transgender as the third gender through the Transgender Persons (Protection of Rights) Act, 2019.
Although the POSH Act protects only women, there has been an increasing trend of organizations formulating gender neutral POSH policies which means that people of any gender could file a complaint of sexual harassment with their respective organization.
Who is a Respondent?
The person against whom a complaint has been filed is known as a Respondent under the POSH Act. While the gender of the Complainant is defined, the law is silent on the gender of the Respondent. This means that the complaint can be filed against any person, irrespective of their gender.
Hence, complaints can be filed by a woman against a man, a woman or a person belonging to any other gender.
Who redresses complaints?
Every organization, having 10 or more employees, is bound by law to constitute an Internal Committee (IC) which will inquire into complaints of sexual harassment at the workplace.
Certain requirements for the constitution of IC are-
- IC should be headed by a senior female employee and will be known as the Presiding Officer (PO).
- IC should have a minimum of 4 members.
- 50% of the members should be females.
- An external member, who is a subject-matter expert, should be a part of the IC. EM must be independent.
- The term of the IC is 3 years.
The law also provides for constitution of Local Committee (LC) at the district level. LC caters to workplaces where the IC is not constituted due to having less than 10 employees or the complaint is against the employer.
As per the POSH Act, only an IC or the LC, wherever applicable, can handle complaints of sexual harassment at the workplace.
Few essential things to be kept in mind while filing a complaint are-
- The complaint must be in writing (handwritten, typed or email).
- The name of the complainant as well as the respondent should be mentioned in the complaint.
- The complaint must be filed within a period of 3 months from the date of the last incident of sexual harassment.
A feature which makes the POSH Act distinct from our criminal law is that the entire procedure from the time of filing of a complaint to its conclusion is time bound.
Below is a snapshot of the timeline prescribed under the POSH Act:
After the conclusion of the entire procedure, if the IC finds that the allegations against the respondent are true, it recommends the actions that need to be taken depending on the facts and circumstances of each case. The recommendations could range from a warning, written apology, withholding of promotion or increment, termination, etc. The employer then executes the recommendations.
While the act gives the primary responsibility to the employer to prevent sexual harassment at the workplace, it is equally important that each of us contribute our bit to ensure that all of us feel safe and respected. The first step towards achieving this is to be aware of the POSH Act.
Disclaimer: Views are personal