Understanding the POSH Act in India: Laws Addressing Sexual Harassment in the Workplace

What is Sexual Harassment?

As per Section 2(n) of the Sexual Harassment of Women at Work Place(Prevention, Prohibition and Redressal) Act, 2013 also known as (POSH Act), Sexual Harassment refers to any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:— physical contact and advances; or demand or request for sexual favours; or making sexually coloured remarks; or showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. 

It is essential that every individual as well as the organisation be aware of the behaviour that is considered sexual harassment. It is the responsibility of the employer to ensure that all employees are aware of what constitutes sexual harassment, the rules to be followed and the process of redress. Experiencing sexual harassment brings mental agony to the woman subjected to it. 

Following are the various conducts which can amount to sexual harassment: 

Verbal/Written	Physical	Nonverbal	Visual
Passing comments on someone’s body, personality, clothing or relationship.	Blocking someone’s path.	Stalking an individual.	Sharing double meaning jokes, pictures, emails or drawings.
Sending or making a sexual and double meaning joke.	Touching someone in an inappropriate manner.	Making weird facial expressions of sexual essence.	Showing pornography.
Asking for the favor of a sexual act.	Assaulting.	Staring with a wrong intention at someone’s body.
Making rumors about the personal and sexual life of an individual.	Forcefully hugging, kissing and massaging.

It follows that the following actions qualify as sexual harassment based on the information provided above. 

• Unwelcome physical contact and approaches can be defined as any action that involves touching, hugging, pinching, etc.

• Brushing against someone's body without that person's consent and causing them to feel unhappy, helpless, or depressed. 

• Anytime a person in a position of authority asks for or expects sexual favors in exchange for a promotion, pay increase, job stability, or other perks. 

• Comments that are improper or taunting regarding a person's physique, looks, or sexual orientation are classified as sexually suggestive or offensive remarks. 

• Innuendos and jokes are also included in this category. 

• Pornographic material includes lewd images from films, TV shows, posters, and other media; it is also considered sexual harassment to display such content to upset someone. 

• Communications via official e-mails, SMS, and WhatsApp can lead to sexual harassment.

Forms of Sexual Harassment

Generally, Harassment at workplace are of types:

1. Quid pro quo.

2. Hostile work atmosphere.
   

Quid Pro Quo

1. Indirectly or directly promise to give favorable treatment during the course of employment in return for something.

2. Expressed or implied threat relating to the current or future employment reputation.
   

Hostile Work Atmosphere

1. Creating an unfriendly or aggressive working atmosphere.

2. The humiliating act will affect her mental health and safety.

How to Redress such Grievances?

Having rules and regulations and their awareness does not reduce or guarantee a decline in the crime rate; that’s the reason we have a redressal mechanism. There needs to be prompt action upon receiving complaints and the process should be confidential. The Act has made provisions for the effective redressal of the issues.

Internal Complaints Committee - The Act prescribes the formation of the Internal Complaints Committee (ICC) for the organisation with 10 or more employees through written order and the Local Complaints Committee (LCC) is formed to address the sexual harassment cases of the organisations that have less than 10 employees and no Internal Complaints Committee.

Where can you Complain and How?

If there are fewer than 10 workers at the workplace, the women employees can complain to the Local Complaint Committee with the help of a Nodal officer. It is the duty of the district officer to appoint a Nodal Officer in every tehsil and taluka level to file complaints. Within 7 days of filing the complaint, it should be forwarded to the required authority and justifiable action should be taken. In addition to this in the workplace, the complaint can be filed under the Internal Complaints Committee.

The complaint should be in a written format including details regarding every particular incident. The following must be included in the complaint:

1. Name of the respondent 

2. Date of the event

3. Timing

4. Relation with the respondent at a workplace and designation
   

Process of filing a Complaint– During the process of solving the issue the complaints committee should guarantee confidentiality and to deal with the matter and conduct an inquiry in a fair way. Major steps to the process of filing a complaint: 

1. Step 1: Receive and Acknowledge the complaint - The aggrieved party may file a complaint regarding the act of Sexual harassment within the duration of 3 months to the any of the Committee or any authorised organization or Nodal officer appointed by the District officer to deal with the Complaint.

2. Step 2: Converse with the Complainant to settle the dispute in a formal or informal way - The complainant should be informed about the formal or informal method used for solving the dispute.

3. Step 3: Informal Method - Informal complaints are received and addressed by the designated authority, guiding the complainant and counseling the respondent. Conciliation may resolve issues, but formal options are explained first. District office handles further actions.

4. Step 4: Formal Method - If the aggrieved party or Complainant goes for the formal method then the complaint will be dealt with on a serious note and the committee will respond to the complaint. The Complaint Committee must deal with all the conflict of interest related to parties or result of that in a free manner. 

5. Step 5: Response of Respondent - According to the procedure provided under the Service Rule, the Complainant committee will inform the respondent within 7 days in writing about the complaint and an opportunity will be provided to the respondent to respond back to the complaint within a duration of 10 days.

6. Step 6: Preparing a File - Prepare for a fair inquiry by:  Creating a confidential file with required documents. Understanding relevant laws. Listing dates, events, and witnesses. Gathering necessary documents. Making a checklist. Planning key elements: complaint, violations, interview logistics, documentation examination, and question types.

7. Step 7: Taking into consideration - During pending inquiries, complainants can request transfers or leave. They may ask to keep respondents away. The committee should support and guide complainants, ensuring clear communication.

8. Step 8: Framing a schedule for hearing both sides -  Schedule interviews to gather relevant information. Plan questioning format and frame issues for cross-examination. Ensure confidentiality and sensitivity, especially in sexual harassment cases. The interviewer should make individuals feel safe and comfortable, overseen by the Committee Chairperson. Statements are signed after interviews.

9. Step 9: Compiling all the relevant information - Compiling all the relevant information after the end of this stage which will give an idea about the whole scenario and areas needing more information.

10. Step 10: Reasoning - After interviews, the Committee reviews findings: identify main complaint issue, assess if actions were welcomed or abusive, consider legality under Acts/Rules, sequence events, and compare interviewee statements for discrepancies. This ensures a thorough understanding and fair conclusion.

11. Step 11: Suggestions and Recommendations - After reviewing all information, the Committee decides if the complaint is valid. Both parties can share opinions before the decision. Valid complaints result in actions like termination, apology, counseling, or financial compensation, potentially recovered through land revenue if unpaid.

12. Step 12: Preparing a written Report - Process should finish in 90 days, shared with employer and District officer in 10 days. Each party gets a copy. Recommendations implemented in 60 days. Dissatisfied parties can appeal to an authorized court. Report includes: information summary, dispute resolution process, and Committee suggestions.

Punishment for Sexual Harassment

Any misconduct by an individual must have consequences. Should the committees' investigation reveal that the respondent is indeed the victim of a crime, they will have to advise the employer of the following:

1. A warning to terminate may be included in the action to take as specified in the applicable policy or service regulations.

2. A sum to be deducted from the respondent's pay and given to the complainant or her heirs in court.

3. The organization may choose to take disciplinary action in the absence of service standards, which could include counseling, community service, written community service, promotion denial, warning, censure, and/or reprimand.

Frequently Asked Questions about Sexual Harassment at Workplace

Question 1) Is it possible for both men and women to be victims of workplace sexual harassment?

Answer 1) Sexual harassment can happen to both men and women. POSH Act safeguards/protections, however, are only available to women.

Question 2) Does verbal conduct constitute sexual harassment?

Answer 2) The verbal harassment of a sexual nature may constitute sexual harassment. It is possible for words to be offensive in the same way as physical acts and touches. In the workplace, sexually coloured jokes, comments, and stories can lead to sexual harassment and can create an environment that is hostile. 

Question 3) Does the company’s HR manager have authority to investigate complaints?

Answer 3) No, an investigation must be conducted by the IC after the complaint has been filed. 

Question 4) Does every branch/office need to have an IC?

Answer 4) Companies must set up an IC at every branch/office where at least 10 employees are employed.

Question 5) Do the parties involved in a claim of sexual harassment have a chance to resolve the issue through mediation or conciliation?

Answer 5) Yes, a settlement may be reached at the request of the aggrieved woman, but no monetary settlement can be reached.

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