POSH Act 2023:The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)

The POSH Act was established following the Vishaka guidelines provided by the Honorable Supreme Court of India in response to the Vishaka and Ors. vs. State of Rajasthan and Ors. case, which occurred in the aftermath of the Bhanwari Devi gangrape. This legislation embodies three primary elements: prevention, prohibition, and redressal. Under this act, employers are mandated to ensure a safe working environment and take measures to prevent and prohibit sexual harassment.

Additionally, the POSH Act delineates a redressal mechanism, necessitating the formation of a dedicated committee to address complaints.

Sexual harassment, as defined by the POSH Act, encompasses any unwelcome behavior or act of a sexual nature, devoid of consent. This includes physical contact, demands for sexual favors, sexually colored remarks, displaying pornography, and any other unwelcome physical, verbal, or non-verbal conduct with sexual undertones.

The act identifies two main forms of sexual harassment: Quid Pro Quo, which involves preferential or detrimental treatment based on the granting or denial of sexual favors, and Hostile Work Environment, characterized by an intimidating and sexually charged atmosphere that jeopardizes employees' sense of safety.

Notably, the act extends beyond conventional workplace settings to encompass various environments where work-related activities occur, such as parking lots, canteens, transportation, accommodations provided during work-related travel, and electronic communications. Despite the shift to remote work prompted by the pandemic and subsequent lockdowns, the POSH Act remains applicable to virtual workplaces, as it encompasses dwelling places and homes within its definition of the workplace.

An aggrieved woman, as defined by the law, includes any woman subjected to sexual harassment, regardless of age or employment status. Moreover, amendments to the law have broadened its scope to encompass transgender individuals, enabling them to file complaints under the POSH Act. While the legislation primarily protects women, some organizations have adopted gender-neutral POSH policies, allowing individuals of any gender to report incidents of sexual harassment.

In the event of a complaint, the individual accused is referred to as the respondent. The law does not specify the gender of the respondent, permitting complaints against individuals of any gender. Organizations with ten or more employees are required to establish an Internal Committee (IC) to investigate complaints of sexual harassment. This committee, chaired by a senior female employee and comprising at least four members, including 50% women, ensures impartiality with the inclusion of an external subject-matter expert.

Complaints of sexual harassment must be addressed solely by the IC or, where applicable, the Local Committee (LC) at the district level. Complaints must be submitted in writing within three months of the last incident of harassment. Notably, the POSH Act imposes time-bound procedures, ensuring prompt resolution of complaints.

The Legal Aspects:

2. Definitions.—

(a) “aggrieved woman” means— (i) in relation to a workplace, a woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent; (ii) in relation to dwelling place or house, a woman of any age who is employed in such a dwelling place or house;

“domestic worker” means a woman who is employed to do the household work in any

household for remuneration whether in cash or kind, either directly or through any agency on a

temporary, permanent, part time or full time basis, but does not include any member of the family of

the employer;

(f) “employee” means a person employed at a workplace for any work on regular, temporary, ad

hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without

the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary

basis or otherwise, whether the terms of employment are express or implied and includes a co-worker,

a contract worker, probationer, trainee, apprentice or called by any other such name;

(g) “employer” means—

(i) in relation to any department, organisation, undertaking, establishment, enterprise,

institution, office, branch or unit of the appropriate Government or a local authority, the head of

that department, organisation, undertaking, establishment, enterprise, institution, office, branch or

unit or such other officer as the appropriate Government or the local authority, as the case may

be, may by an order specify in this behalf;

(ii) in any workplace not covered under sub-clause (i), any person responsible for the

management, supervision and control of the workplace.

Explanation. —For the purposes of this sub-clause “management” includes the person or

board or committee responsible for formulation and administration of polices for such

organisation;

(iii) in relation to workplace covered under sub-clauses (i) and (ii), the person discharging

contractual obligations with respect to his or her employees;

(iv) in relation to a dwelling place or house, a person or a household who employs or benefits

from the employment of domestic worker, irrespective of the number, time period or type of such

worker employed, or the nature of the employment or activities performed by the domestic

worker;

The Act envisages a mechanism in the form of Internal Complaints Committee (ICC) and Local Complaints Committee (LCC). All workplaces employing 10 or more workers are mandated under the Act to constitute an ICC.

The ICC is to be headed by a woman and should include a unbiased person from outside the organisation like an NGO worker who has atleast 5 years of experience in sexual harassment challenges.

(h) “Internal Committee” means an Internal Complaints Committee constituted under section 4;

(i) “Local Committee” means the Local Complaints Committee constituted under section 6;

(j) “Member” means a Member of the Internal Committee or the Local Committee, as the case

may be;

(k) “prescribed” means prescribed by rules made under this Act;

(l) “Presiding Officer” means the Presiding Officer of the Internal Complaints Committee

nominated under sub-section (2) of section 4;

(m) “respondent’ means a person against whom the aggrieved woman has made a complaint

under section 9;

(n) “sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

(o) “workplace” includes—

(i) any department, organisation, undertaking, establishment, enterprise, institution, office,

branch or unit which is established, owned, controlled or wholly or substantially financed by

funds provided directly or indirectly by the appropriate Government or the local authority or a

Government company or a corporation or a co-operative society;

(ii) any private sector organisation or a private venture, undertaking, enterprise, institution,

establishment, society, trust, non-governmental organisation, unit or service provider carrying on

commercial, professional, vocational, educational, entertainmental, industrial, health services or

financial activities including production, supply, sale, distribution or service;

(iii) hospitals or nursing homes;

(iv) any sports institute, stadium, sports complex or competition or games venue, whether

residential or not used for training, sports or other activities relating thereto;

(v) any place visited by the employee arising out of or during the course of employment

including transportation by the employer for undertaking such journey;

(vi) a dwelling place or a house;

(p) “unorganised sector” in relation to a workplace means an enterprise owned by individuals or

self-employed workers and engaged in the production or sale of goods or providing service of any

kind whatsoever, and where the enterprise employs workers, the number of such workers is less than

ten.

9. Complaint of sexual harassment.—

(1) Any aggrieved woman may make, in writing, a complaint

of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in

case it is not so constituted, within a period of three months from the date of incident and in case of a

series of incidents, within a period of three months from the date of last incident:

Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member

of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be,

shall render all reasonable assistance to the woman for making the complaint in writing:

Provided further that the Internal Committee or, as the case may be, the Local Committee may, for

the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied

that the circumstances were such which prevented the woman from filing a complaint within the said

period.

(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental

incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a

complaint under this section

15. Determination of compensation.—For the purpose of determining the sums to be paid to the

aggrieved woman under clause (ii) of sub-section (3) of section 13, the Internal Committee or the Local

Committee, as the case may be, shall have regard to—

(a) the mental trauma, pain, suffering and emotional distress caused to the aggrieved woman;

(b) the loss in the career opportunity due to the incident of sexual harassment;

(c) medical expenses incurred by the victim for physical or psychiatric treatment;

(d) the income and financial status of the respondent;

(e) feasibility of such payment in lump sum or in instalments.

19. Duties of employer.— Every employer shall—

(a) provide a safe working environment at the workplace with shall include safety from the

persons coming into contact at the workplace;

(b) display at any conspicuous place in the workplace, the penal consequences of sexual

harassments; and the order constituting, the Internal Committee under sub-section (1) of section 4;

(c) organise workshops and awareness programmes at regular intervals for sensitising the

employees with the provisions of the Act and orientation programmes for the members of the Internal

Committee in the manner as may be prescribed;

(d) provide necessary facilities to the Internal Committee or the Local Committee, as the case

may be, for dealing with the complaint and conducting an inquiry;

(e) assist in securing the attendance of respondent and witnesses before the Internal Committee or

the Local Committee, as the case may be;

(f) make available such information to the Internal Committee or the Local Committee, as the

case be, as it may require having regard to the complaint made under sub-section (1) of section 9;

(g) provide assistance to the woman if she so chooses to file a complaint in relation to the offence

under the Indian Penal Code (45 of 1860) or any other law for the time being in force;

(h) cause to initiate action, under the Indian Penal Code (45 of 1860) or any other law for the time

being in force, against the perpetrator, or if the aggrieved woman so desires, where the perpetrator is

not an employee, in the workplace at which the incident of sexual harassment took place;

20. Duties and powers of District Officer.—

The District Officer shall, —

(a) monitor the timely submission of report furnished by the Local Committee;

(b) take such measures as may be necessary for engaging non-governmental organisations for

creation of awareness on sexual harassment and the rights of the women.

Global Scenario:

Here's a brief overview of sexual harassment laws and regulations globally:

1. United States: In the U.S., sexual harassment is prohibited under Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees. The Equal Employment Opportunity Commission (EEOC) enforces these laws. Additionally, individual states may have their own laws governing sexual harassment in the workplace.

2. European Union: The EU has directives that member states must implement into their national laws. Directive 2002/73/EC amended the original directive (76/207/EEC) to include sexual harassment as a form of discrimination and outlines employers' responsibilities in preventing and addressing it.

3. United Kingdom: In the UK, sexual harassment is prohibited under the Equality Act 2010, which covers discrimination in the workplace and other areas. The Equality and Human Rights Commission (EHRC) oversees enforcement of these laws.

4. Canada: Canadian federal and provincial laws prohibit sexual harassment in the workplace. The Canadian Human Rights Act and provincial human rights codes outline the protections against harassment and discrimination.

5. Australia: In Australia, sexual harassment is prohibited under the Sex Discrimination Act 1984, which is enforced by the Australian Human Rights Commission.

6. India: The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, provides a framework for addressing and preventing sexual harassment in India. It requires employers to establish internal complaints committees to address complaints.

7. Japan: Japan has the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment, which prohibits sexual harassment in the workplace. However, enforcement and cultural attitudes toward sexual harassment can vary.

8. South Africa: The Employment Equity Act, 1998, prohibits sexual harassment and requires employers to take steps to prevent it. The Commission for Conciliation, Mediation, and Arbitration (CCMA) handles disputes related to sexual harassment.

Challenges:

The POSH Act serves as a civil recourse, designed to provide a more accessible avenue for addressing instances of sexual harassment in the workplace, sparing women from the arduous process of criminal prosecution. While this aim of accessibility is commendable, there exist challenges in reporting workplace harassment due to fears of reprisal and damage to one's reputation. The power dynamics inherent in workplace harassment further complicate matters, emphasizing the necessity for comprehensive sensitization efforts and enhanced efficacy of the Committees to ensure equitable justice.

In India, a significant proportion of women refrain from reporting instances of sexual harassment. A report by the Women’s Indian Chamber of Commerce and Industry on the 'State of Sexual Harassment in India' revealed that while half of working women have encountered sexual harassment, the majority choose not to lodge complaints. Compounding the issue, there is a lack of oversight body to ensure universal implementation of the law across all companies. Additionally, there exists no centralized database to monitor workplace harassment cases and evaluate the effectiveness of the Act.

Furthermore, Committees responsible for addressing sexual harassment often face challenges, with many either not established or inadequately constituted, lacking the inclusion of an external neutral member. Moreover, a considerable number of women in India, particularly those employed in the informal sector as laborers or domestic workers, remain unaware of the existence of the POSH Act and their rights under it.

 'State of Sexual Harassment in India': https://www.forbesindia.com/article/take-one-big-story-of-the-day/india-inc-sees-alarmingly-high-unresolved-sexual-harassment-cases-at-workplace/89043/1#:~:text=A%20review%20of%20the%20CRB,incidents%20per%201%20lakh%20population).

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