One of the most unreported crimes, one that infests almost every organization, irrespective of the structure and composition, is sexual harassment at workplace. After the advent of the ‘#MeToo’ Movement, resistance against sexual harassment has gained momentum but the harrowing events of sexual harassment at workplace still continue to plague employees behind cemented walls of offices.
Indian National Bar Association conducted a survey on sexual harassment not long ago and it revealed a dismaying result. 38% of the sample size (male and female) admitted to being sexually harassed at their work and 65% of them did not complain to the management. There is a tendency in women to not report such occurrences due to fear of loss of reputation, position of the harasser in the organization she works or the legal system itself. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, also known as the POSH Act, was legislated to prevent sexual harassment of women at workplace in India. The Supreme Court judgment, Vishaka and others v. State of Rajasthan and other is the warp and woof of the POSH Act.
It is essential to discern the following concepts to be able to understand the application of the Act better:
- Sexual Harassment: It includes the following unwelcome acts or behavior, implicit or explicit: (i) physical contact and advances, (ii) a demand or request for sexual favours, (iii) making sexually coloured remarks, (iv) showing pornography, or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature. It is a non-exhaustive list.
- Aggrieved Woman: A woman of any age, whether employed or not, who claims to have been at the receiving end of an act of sexual harassment. It includes a woman who is employed at a workplace or a dwelling place/house. Since employment is not a prerequisite, even a customer can file a complaint with the ICC.
- Workspace: It is not limited to the office premises and is wide enough to include all places that a woman visits due to or during the course of employment, even transportation.
- Internal Complaints Committee: If more than 10 employees are part of any organization, the Act mandates the employer to form an Internal Complaints Committee (ICC) at each office to address the complaints of sexual harassment. The Presiding Officer of ICC is the senior most female employee. Two employees and one person from an NGO/association which is committed to the cause of women are also members of the Committee.
Procedure of the Complaint:
If there are less than 10 people in the organization, then the woman can complain to Local Complaints Committee with the assistance of the nodal officer (appointed by the District Officer to receive the complaints). Nodal Officer has to forward such complaint to the appropriate authority within 7 days. In case of ICC, aggrieved woman has to complain within 3 months of the last alleged incident. A formal or informal approach can be taken by the ICC to resolve the matter, depending on the complainant and the severity of the situation. Informal approach gives a chance to the complainant and the respondent (against whom the complaint is filed) to conciliate and the formal approach involves inquiry into the complaint, followed by recommendation of disciplinary action against the respondent. There is no monetary aspect involved in case a settlement is reached. Inquiry should be completed within a period of 90 days. The employer or district officer has to act on the recommendations within 60 days of receiving the report of the Committee.
The Act should exist to make a difference and not just to festoon the walls of offices or libraries as a mere piece of legislature. Many women lack the knowledge and motivation to complain about such incidents. Offices should organize informational sessions with men and women to sensitize them about sexual harassment. The POSH Act is still struggling to achieve holistic implementation and defeat its most common criticism of not being gender neutral.
To know more and learn more about the POSH Act and its intricacies, you can subscribe to our course titled Workplace Sexual Harassment: Everything You need to Know and Training, Sensitization and Prevention of Workplace Sexual Harassment available on www.lawskills.in.