INTRODUCTION
The work environment around the world has changed rapidly over the last few decades, which has stimulated the need to ensure that people have job security, a decent working environment, social protection and financial regulation, among other things. Talking about working women particularly, it has been observed that the rights of women to be respected, protected, and satisfied in their workplace, need more attention than ever, especially to protect them from any kind of discrimination. Sexual harassment in the workplace is one such harassment, which is an outcome of a deep-rooted ideology of gender bias, resulting in gross inequality.
The workforce participation rate of women in India was just 25.1% for 2021(1), the lowest among developing nations. Despite India’s exponential growth, only 19% of women aged 15 and above have participated in the labor force, compared to 70% of men, in 2021-22.(2) This is because the decision of women to enter the workforce is heavily influenced by social factors like patriarchy, gender disparity, and the societal structure in general. They are expected to follow the social norms which determine the role of women in the public domain. Apart from this, the perceived discrimination against women and violence against women is yet another deterring factor.
Due to rampant patriarchy, discrimination against women in the form of sexual harassment at the workplace is also normalized. To address this problem of Sexual Harassment at workplace, the Supreme Court laid certain binding guidelines in 1997 after the landmark judgment of Vishaka v. State of Rajasthan (3). This judgment was passed in an attempt to eradicate sexual harassment at workplace, in the absence of a legislative response. Based on these guidelines, the Legislature passed the Prevention of Sexual Harassment at Workplace Act (POSH Act) in 2013. Though the POSH Act has its own shortcomings, the legislation was long-awaited.
WHAT IS POSH POLICY?
POSH Act mandates every organization to formulate and implement a Prevention of Sexual Harassment (POSH) Policy. POSH Policy is a document used to create awareness among the employees and sensitize them about the issue of sexual harassment at workplace and provisions under the POSH Act 2013.
The main purpose of enforcing such a policy is to provide a safe, secure, inclusive and stress free working environment, which is free from sexual harassment and enables all the employees to work stress-free, without any hindrances. The legislative intent behind POSH Act was Protection against sexual harassment and Prevention & Redressal of complaints of sexual harassment in a workplace and ensure that a safe working environment is provided to all working women.
Though the POSH Act has been around for almost a decade now, not everyone is well-versed with its contents. There is little to no awareness among employees and other managerial personnel about what constitutes sexual harassment. They might not be aware of what would make another party uncomfortable and the boundaries by which they should act when dealing with other employees. Therefore, the POSH policy is formulated and implemented to ensure that all the employees and other personnel are aware of what constitutes sexual harassment, who all are protected under it, the constitution of a designated authority, how to approach that concerned authority if they experience sexual harassment at the workplace, what would be the redressal mechanism, the punishment and penalties for such offense, and other such important aspects.
POSH Policy is essential for every organization because many times employees don’t realize that some of their actions, which they consider friendly or pass off as a joke, might make the other person feel uncomfortable and even humiliated and create a hostile working environment. The POSH policy epowers the victims of sexual harassment to come forward without hesitation and without the fear of being judged or ridiculed, or not taken seriously, and report such matters. The legislation seeks to acknowledge the breach of rights of the victim and to ensure that there is an effective remedy available to right the wrong.
POSH policy not only plays an essential role in addressing and adjudicating complaints of sexual harassment but also works on the principle of ‘prevention is better than cure’, therefore the policy calls for widespread awareness among employees and other personnel.
Therefore, the POSH Policy is important to create a culture of respect among the employees, and encourage victims to report incidents with an assurance of a proper redressal mechanism. The law also discourages the filing of false complaints and imposes punishment for filing complaints with malafide intentions, if proven. It also enables the organization to ensure legal compliance, avoid legal disputes and safeguard the reputation & goodwill of the organization.
ELEMENTS OF POSH POLICY
The POSH Policy should be committed to giving every employee a just and fair chance of being heard about the issues of sexual harassment encountered by them at the workplace. The policy should be drafted with an aim to prevent and redress complaints of sexual harassment and uphold the fundamental rights under Articles 14, 15, and 21 of the Constitution of India. The Policy should act as the guiding principle, with an effective redressal mechanism to investigate and adjudicate the complaints of sexual harassment, and to take retributive & restorative measures, on a case-to-case basis.
To comply with POSH Act 2013, every POSH policy should prohibit unwelcome behavior that constitutes workplace sexual harassment, promote the prevention of workplace sexual
harassment through orientation, awareness, and sensitization sessions and provide a detailed redressal mechanism.
Important elements
1. Objective- This part states the aim, objective, and purpose of the Policy. It also mentions that the organization is POSH complaint.
2. Scope- This head lays down the applicability of the policy. For example, it mentions who the policy applies to, which can include the employees, off-roll employees, client employees, interns, trainees, visitors, consultants, etc.
3. Definitions- All important definitions are mentioned under this section. It defines all the important terms in clear, unambiguous terms such that there is no scope for loopholes. Definitons for are sexual harassment, workplace, aggrieved person/complainant, respondent, employee, employer, domestic worker, Internal Committee, presiding officer, and disciplinary committee, witnesses, among others are included herein.
4. Roles and Responsibility- This section defines the role and responsibilities of the employers and the rights and responsibilities of employees as aggrieved persons and towards aggrieved persons. This clause also serves as an encouragement clause to encourage employees to come forward with sexual harassment complaints. This can also be done in the form of Do’s and Don’ts for employees and other personnel.
5. Internal Committee (IC)- It provides information on the constitution of the internal committee, details including contact number of members of the committee, duties, powers & functions of the committee, and the grounds for disqualification of members.
6. Redressal Mechanism- This clause is the most important provision in the whole policy. It dictates the procedure for filing a complaint with the internal committee, the conciliation procedure, the inquiry procedure, the role of witnesses, action during the pendency of the inquiry, the timeline for resolution of a complaint, situations when proceeding will be terminated or ex-parte order will be passed, provision for inquiry report and recommendations, among others.
7. Disciplinary Action- This section provides steps for the actions to be taken after the allegations against the respondent are proven, which includes measures, penalties, and fines for the action. It also includes the procedure for determining compensation. It may also include the way such measures are implemented. The remedies should be proportionate to
the gravity of harassment.
8. Malicious Complaint- This clause clarifies that cases and incidents of false/malicious complaints would attract consequences and penalties.
9. Appeal- The procedure and time period for appeal against the decision of the IC is provided herein.
10. Confidentiality- This clause directs sensitive information of the parties engaged like complainant, respondent, witnesses, and the details of complaint & inquiry always to be
kept confidential unless the law mandates otherwise. Consequences of breach of confidentiality are provided within this clause itself.
11. Non-retaliation- The policy directs personnel against retaliation and resulting disciplinary action against such persons in case of non-compliance.
12. Preventative measure- Preventive measures withing the POSH Policy includes organising training and awareness programs to explain sexual harassment, its impact on individuals and workplaces, why and how to prevent it, and to explain the POSH Policy. It may also include provisions for anonymous surveys to understand the real scenario better. Training provisions for the IC and employers are included, for them to perform their responsibilities better and create a robust & effective complaint redressal system.
The policy should be drafted in a way that ensures that victims of sexual harassment do not hesitate to approach the IC only because they are afraid of stringent requirements and disproportionate punishment. It should show that the organization takes cases of sexual harassment seriously and that victims are always protected. Any instrument of change is only useful when the person operating it is aware of it, thus, this policy will only be successful in achieving its objectives when it is published and people are made aware of it.
GENDER-NEUTRAL POLICY
It has been argued by critics of the POSH Act that this law discriminates on the basis of gender since it is only applicable to cis women and that it lacks a system to address sexual harassment faced by non-women complainants.
In the case of Anamika v. Union of India (4) the Delhi High Court allowed a complaint of a transgender person to be investigated by the police, but only because she identified as a woman and she could prove it through an authorized certificate. But what happens if they can’t prove that they identify as women or when they don't identify as women?
The most probable reason for only protecting women under the law is because primarily women have suffered instances of workplace harassment, abuse, and discrimination. However, it is a fact, though not commonly discussed, that sexual harassment is not limited to women. We must understand that anyone can experience sexual harassment, not just women and no one should be left outside the purview of protection from sexual harassment. Even if one person’s rights are being violated, the purpose of the law is defeated.
Further, sexual harassment isn’t always limited to physical acts or verbal acts with a sexual undertone. It can take place in the form of teasing, intimidating or offensive comments based on victims’ sex, sexual orientation, or gender identity and the stereotypes that stem from it. The social attitudes towards gender and sexuality have created a social hierarchy. This socio
political attitude further changes with the change in race, class, and caste. For example, men over women, heterosexual men over homosexual men, white homosexual females over black homosexual females, white women over women belonging to an ethnic minority, and black women over trans black women etc. In the Indian context, upper-caste women over lower-caste women are less likely to face such discrimination. This shows that persons belonging to inter sectional marginalized communities are more likely to face instances of sexual harassment.
In any working environment, non-discrimination and equal treatment & opportunity form a basic part of human rights and labor rights. Sexual harassment is a violation of basic human rights and therefore, the law providing protection against it, cannot be gender-specific.
Further, the Constitution of India provides the right of equality before the law and that no one should be discriminated against on the basis of religion, race, caste, sex, or place of birth under Articles 14 and 15. Thus, not being able to file a complaint of sexual harassment only because you are not a woman, is a violation of Articles 14 and 15. Apart from that, every person has the right to live with dignity and respect, and a law protecting only one gender against sexual offenses is a violation of Article 21 of the Constitution.
Though the POSH Act doesn’t mandate formulating a POSH policy for non-women victims, it can be used as a guideline to draft a gender-neutral policy by the employer. However, there might be one issue with incorporating a gender-neutral policy. Since the Act gives the Internal Committee the power of the civil court to investigate the matter, meaning such powers are vested in the IC only to be used when the victim is a woman. For gender-neutral policies, the authority and power to adjudicate complaints should come directly from the Companies Policy as a part of disciplinary Rules or otherwise.
It is, however, argued that how will a company policy protect all employees from workplace harassment in the absence of law. What we need is a law that protects all employees and other personnel from all kinds of harassment including emotional, physical, and sexual, irrespective of their gender, sexuality, race, caste class, religion, or designation.
The employers can take the initiative to formulate the POSH Policy by expanding its ambit to include and adjudicate complaints of sexual harassment from all victims. The policy should ensure that all the investigations are handled in a gender-neutral manner, without any prejudice. For specific provisions like appeal, the non-women complaint may have a different appeal mechanism. The employer should ensure that all the employees feel safe, secure & protected and work in a stress and harassment-free environment. This will allow the organization to promote diversity and equality along with mutual trust and equal opportunity.
CONCLUSION
All organizations must be dedicated to giving all of their staff members a supportive and secure work environment. The employer must seek to create a work environment that values gender diversity and acknowledges the contribution of employees of all genders as equal participants. The creation of the organization's gender-neutral POSH policy is a crucial step towards attaining this. This will help employers limit their liability by implementing all the reasonable steps to prevent sexual harassment at the workplace and to establish a safe, secure & inclusive working environment for all.
Organizations should be encouraged to draft a POSH policy that aims to achieve a workplace free from violence and discrimination. The policy should embrace fundamental rights guaranteed under Articles 14, 15, and 21, and be implemented with the objective to foster a safe environment for all irrespective of sex or gender identity and achieve gender justice at all institutional levels. This will ensure that all the employees have a healthy work environment; improving productivity, promoting healthy competition and attracting talent.
(1) Periodic Labour Force Survey (PLFS)– Annual Report [July, 2020- June, 2021], available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1833855
(2) World Bank Group, Labour force participation rate, female (% of female population ages 15+) (Modelled ILO estimate)- India [Data set], the World Bank Databank, (2022).
(3) Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.
(4) Anamika v. Union of India, W.P.(CRL) 2537/2018.
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