The #Metoo movement has taken the country by storm in last few weeks. People from varied industries are coming out against the predators as well as in support of the survivors. A wave of angst exists against the current scenario where every so many people (even among the high and the mighty) are being named as a sexual harasser.
Through this article, we attempt to put forth the key provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [Prevention of Sexual Harassment Act (POSH)]. POSH was enacted in 2013 with the objective of ending sexual harassment at workplace. Half a decade has elapsed since its existence and it has still failed to curb the incidence of sexual harassment at workplace.
Let us briefly analyse the current state of POSH and the practicalities that need to be observed in order to make one’s workplace sexual harassment free.
Key provisions of POSH
The POSH Act extends to all places which fall within the definition of “workplace”. It applies to both organised and unorganised bodies.
(b) Sexual harassment
It is essential to understand what constitutes sexual harassment. The POSH Act defines sexual harassment as any unwelcome sexually motivated behaviour, whether directly or by implication. The Act outlines a list of actions which may be construed to be sexual harassment. These are:
(i) physical contact or advance;
(ii) a demand or request for sexual favours;
(iii) making sexually coloured remarks;
(iv) showing pornography; and
(v) any other physical, verbal or non-verbal conduct of a sexual nature.
Apart from the above, some other examples of sexual harassment are:
(i) unwelcome touching, hugging or kissing;
(ii) staring or leering;
(iii) suggestive comments or jokes;
(iv) unwanted or persistent requests to go out;
(v) intrusive questions about another person’s private life or body;
(vi) deliberately brushing up against someone;
(vii) insults or taunts of a sexual nature;
(viii) sexually explicit pictures, posters, screensavers, e-mails, twitters, SMS or instant messages;
(ix) accessing sexually explicit internet sites;
(x) inappropriate advances on social networking sites; and
(xi) behaviour which would also be an offence under the criminal law, such as physical, assault, indecent exposure, sexual assault, stalking or obscene communications.
(c) Aggrieved woman
POSH defines an aggrieved woman to be a woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. There has been no linkage between the aggrieved woman being an employee. This means that any woman can file a complaint in relation to a particular workspace. For instance, A, a customer gets sexually harassed by an employee. A can file a complaint with the internal complaints committee of the workplace of that employee.
A “workplace” does not necessarily mean traditional office space. It may include any place which is visited by the aggrieved woman arising out of or during the course of employment, including transportation provided by the employer for the purpose of commuting to and from the place of employment.
(e) Internal Complaints Committee
The most distinctive feature of the POSH Act is the Internal Complaints Committee (ICC). Employers employing 10 or more employees are required to set up an “internal complaints committee” at each office or branch, of an organisation, to hear and redress grievances pertaining to sexual harassment. The ICC is chaired by the seniormost woman employee and includes 2 members from among the employees and an external member who is committed to the cause of women.
(f) Redressal process
At the first instance, the aggrieved woman and the accused would be required to settle the matter through conciliation. If this is not possible then a written complaint needs to be sent to the ICC. A copy of the complaint should also be sent to the accused. The inquiry is required to be completed within 90 days of the complaint. The identity of the aggrieved woman is required to be kept anonymous. At the request of the aggrieved woman, she may be transferred to other workplace or be granted additional leave up to 3 months.
If the accused is proven guilty, then the following penalties may be imposed:
(i) punishment prescribed under the service rules of the organisation;
(ii) disciplinary action such as written apology, warning, reprimand, withholding of pay, termination, etc.; and
(iii) deduction of the compensation to be paid to the aggrieved woman from the compensation of the accused.
Analysis of the POSH Act
Despite the POSH Act being in place for close to 6 years now, the incidence of sexual harassment has not gone down. This merits two conclusions:
(i) that there is something amiss with the Act itself; and
(ii) that the implementation of the Act and compliance have not reached the desired extent to instil deterrence.
On the first count, the POSH Act does not suffer from any major infirmity. A tightly worded legislation with all possible ends covered. One flaw which has been systematically pointed out is that it should be gender neutral.
The major flaw arises from the perspective of implementation and compliance. Most of the unorganised workspaces do not have an ICC in place. There is no awareness among the employees that they can file a complaint under the POSH Act. Even companies of the organised sector do not have an ICC in place.
Moreover, employees both male and female, do not understand as to what constitutes sexual harassment. What one engages in as a banter may be construed as harassment by the other. Hence, it is essential that awareness sessions be held sensitising the employees of sexual harassment issues.
A strict compliance regime should be introduced. Periodic audits to check compliance should also be conducted. Penalties should be made more stringent. Measures such as cancellation of trade licence should be imposed.
The POSH Act is an important tool in the hands of women and hence it is essential that it is used judiciously. All employers having 10 or more employees should necessarily have an ICC in place. Sensitisation about this issue is essential. Awareness sessions should be held. It is imperative that this piece of legislation does not merely adorn the paper but becomes a real weapon to curb sexual harassment in the country.
Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at firstname.lastname@example.org.