UNPACKING WORKPLACE SEXUAL HARASSMENT: DEMYSTIFYING KEY DEFINITIONS IN THE POSH ACT

This article is written by Sahil Mewani of 7^th Semester of ILS Law College, an intern under Legal Vidhiya

ABSTRACT

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, enacted in 2013 in India, is a crucial response to the changing dynamics of the workforce. In ancient times, women were confined to household roles, but as more women entered the workforce, issues of sexual harassment emerged. The Act guarantees women a safe workplace in alignment with constitutional provisions on equality. Notably, it exclusively protects women, emphasizing a gender-specific focus.

Defining sexual harassment broadly, the Act covers physical contact, sexual demands, explicit comments, pornographic displays, and any unwelcome sexual behaviour. It extends beyond traditional offices, including remote workspaces, as clarified by a significant case. The law recognizes domestic workers, excluding family members, as potential victims of harassment.

Mandating the formation of Internal Committees (IC) in organizations with ten or more employees and Local Committees (LC) at the district level, the Act ensures a structured approach to addressing complaints. It allows conciliation upon the aggrieved woman’s request and provides interim reliefs, such as relocation and additional leave, ensuring immediate protection.

In conclusion, the POSH Act represents a pivotal step in addressing workplace sexual harassment in India, offering comprehensive definitions, committee structures, and an emphasis on conciliation for fostering secure work environments. Active employer and district officer involvement remain crucial for optimal functionality, leaving room for potential enhancements.

KEYWORDS:

Sexual Harassment, Employee, Employer, Aggrieved Woman, POSH Act, Internal Committee, Local Committee, Protection of Women, Complaints Committee, Internal Committee, Local Committee, Conciliation, Interim Reliefs.

INTRODUCTION

In the ancient and medieval eras, the men exclusively held the role of bread earners and the females were responsible for household management. The women were expected to serve their family members. As time passed by, due to change in society as well as education being readily available to females, the gender dynamic of the workforce shifted significantly and many women started working jobs to support their family financially or for their self-fulfilment needs. With this shift in the dynamic, the workplace in turn had to change drastically to accommodate the inflow of women and their needs. One pressing problem that arose was that of protection of women from sexual harassment at workplace. The existence of workplace sexual harassment not only fosters an environment of insecurity and hostility for women but also acts as a hindrance to their ability to thrive in today’s fiercely competitive world. Beyond impacting their performance at work, it obstructs their social and economic advancement, subjecting them to both physical and emotional anguish.

Article 14 of the Indian Constitution ensures that every citizen is equal before the law, a principle articulated in the Preamble. Consequently, women possess a legal entitlement to a secure workplace. Notably, Articles 14, 15, and 21 of the Indian Constitution specifically deal with the notions of equality and liberty. These provisions collectively guarantee equal treatment under the law for all, freedom from discrimination based on any grounds, and the right to lead a life that is both free and independent.

In response to these pressing challenges, India introduced its legislation addressing workplace sexual harassment in 2013—the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, commonly known as the POSH Act. This legislative initiative, led by the Ministry of Women and Child Development, seeks to prevent and safeguard women from workplace sexual harassment, while concurrently establishing an effective mechanism for addressing complaints. Furthermore, the government implemented the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Rules, 2013 (POSH Rules), and the Criminal Law (Amendment) Act, 2013, which criminalizes offenses such as sexual harassment, stalking, and voyeurism[1].

SCOPE

The Prevention of Workplace Sexual Harassment Act extends to the ‘whole of India and ensures that women are not subjected to sexual harassment at their workplaces. It’s important to understand that this law specifically protects women and is not meant to be neutral for all genders. According to the law, an ‘aggrieved woman’ in the context of a workplace can be of any age, whether employed or not, who claims to have experienced any form of sexual harassment. Moreover, this law applies to both organized and unorganized sectors in India, including government bodies, private and public sector organizations, NGOs, and entities involved in various activities such as commerce, education, entertainment, industry, finance, hospitals, nursing homes, educational institutions, sports facilities, and even living spaces or houses.

The POSH Act is not a gender-neutral law; it exclusively provides protection for women. Consequently, the safeguards outlined in the POSH Act do not extend to male victims by default, although employers have the option to include such protection through their policies.

SEXUAL HARASSMENT

The term sexual harassment[2] as per POSH Act 2013, is an a includes 5 broad categories of unwelcome behaviour of a sexual nature:

1.         Physical contact and advances – such as inappropriate touching, groping, kissing etc.

2.         Seeking sexual favours or demands for sexual benefits

3.         Comments that are sexual in nature or have sexual undertones

4.         Displaying or circulating pornographic content

5.         Any other physical, verbal or non-verbal conduct that is sexual in nature and unwelcome by the recipient. For example, making lewd gestures, vulgar jokes, explicit messages, lascivious stares etc.

Sexual harassment, occurring in different situations, can be recognized by specific conditions during such behaviour. These include a promised advantage at work, implied or explicit threats of adverse workplace treatment, threats concerning employment status, interference creating an intimidating work environment, and humiliating treatment affecting a female employee’s well-being. The key criteria is that the acts cover anything that tend to violate a person’s dignity or make them uncomfortable due to their explicit, implicit or suggested sexual nature. Consent and willingness are vitally important. Even suggestions, remarks or displays considered unacceptable by the recipient would classify as harassment under this definition.

For example, a woman working in the film industry is coerced for sexual favours by the director with condition that if she rejects the advances, she will be fired from her job. Such an act by the director will be considered as sexual harassment.

EMPLOYEE

An employee[3] refers to any person who is working at a workplace, regardless of what terms their employment arrangement follows. It includes:

• Permanent employees as well as temporary, ad-hoc, daily wage, or contractual workers
• Those hired directly by an employer or through a third-party agent
• Workers getting paid or unpaid volunteers
• Those who the principal employer may or may not have complete knowledge about
• Individuals under probation, training or apprenticeship

The law intends to cover virtually anyone working at a workplace, under any arrangement or title, when defining the term “employee”. The mode, duration or type of work, as well as what the worker is called, does not matter for this purpose. The emphasis is on providing the broadest scope rather than limiting only to conventional notions of an employee.

EMPLOYER

The term employer[4] denotes the individual accountable for overseeing and directing a workplace and its workforce.

• In the context of government or local authority, the employer for a dwelling place or house is defined as the “head of the department, organization, undertaking, establishment, enterprise, institution, office, branch, or unit specified by the Government or the appropriate local authority.”
• In the case of a dwelling place or house, an employer is identified as “a person or household who employs or benefits from the employment of a domestic worker, regardless of the number, duration, or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.”
• For any other establishment, an employer is any person responsible for the management, supervision, and control of the workplace. This encompasses the individual, board, or committee in charge of formulating and administering policies for such an organization.

WORKPLACE

The term workplace[5] encompasses any location or premise where people work. This extensive definition includes:

• All government departments and bodies at central, state and local levels. It also covers government companies, corporations etc.
• All private sector organizations, enterprises etc related to business, trade, services, industry, finance, healthcare, education etc.
• Hospitals and nursing homes
• Sports institutes, stadiums, venues etc
• Any location visited by an employee due to their work, including transportation facilities provided by employer
• Private homes and dwellings where domestic help are employed

In essence, a workplace refers to any space where an employed person needs to visit or reside at for employment obligations they have been hired for. It indicates the intent to secure employees against sexual harassment in the course of any and every instance connected to their occupation – official sites, transit or residential spaces provided by employer, client locations etc.

Case Law:

In the Saurabh Kumar Mallick vs Comptroller & Auditor General of India case[6], the respondent was facing disciplinary inquiry for allegedly sexually harassing a senior female officer. He argued that he couldn’t be accused of workplace harassment since the alleged incident occurred at an official mess where she resided, not at the office premises. Additionally, he claimed that since the complainant was senior to him, he couldn’t seek any favour from her, so it didn’t qualify as sexual harassment.

The Delhi Court dismissed these arguments as unfounded. They observed that the Vishaka Guidelines clearly aim to prevent workplace sexual harassment of women and sternly deal with offenders. Defining “workplace” narrowly as just a traditional office space betrays this objective. With technology enabling remote work and virtual interactions, the definition needs to expand. For instance, if a CEO running his office from home harasses his secretary, he can’t escape responsibility by claiming it didn’t happen at the workplace.

The Court outlined factors determining whether an act occurred at the “workplace”:

• Proximity from the place of work;
• Control of the management over such a place/residence where the working woman is residing; and
• Such a residence has to be an extension or contiguous part of the working place.

By these criteria, the official mess where the harassment occurred constitutes a workplace. So, the respondent remains accountable.

DOMESTIC WORKER

A domestic worker[7] refers to a woman employed to carry out household duties in a private residence in exchange for compensation. The compensation may be in the form of money or other benefits.

The woman could be hired directly by the homeowners or through an agency. Her role can be full-time or part-time, temporary or permanent.

However, any female family members of the employers living in the home would not be considered domestic workers under this law.

In simpler terms, a domestic worker is a woman household help, not belonging to the family, who is paid in cash or kind to provide services like cooking, cleaning, childcare etc in a private household, regardless of whether she is a live-in full-timer or comes in a few hours daily. But close relatives and family members are excluded.

AGGRIEVED WOMAN

An “aggrieved woman” is a term used for a woman who asserts that she has experienced sexual harassment. In a workplace setting, this can be any woman, irrespective of age or employment status, who claims that the person she is accusing (the respondent) subjected her to some form of sexual harassment. In the context of a residence, an aggrieved woman is any woman, regardless of age, employed to work in a private house or dwelling, and who alleges suffering sexual harassment there. In essence, an aggrieved woman is someone who claims to have been the subject of sexual harassment, whether it occurred in a workplace by a colleague or superior, or in a private residence where she is employed.

UNORGANISED SECTOR

The unorganised sector[8] refers to very small enterprises that are owned and operated by individual owners or self-employed workers, as opposed to a registered company.

Such workplaces have less than 10 workers employed.

These are essentially informal micro set-ups engaged in producing goods, selling products or offering services. For example, home-based workshops, roadside hawker stalls, vendors, small repair shops etc.

So, the key factors are:

1.         Have less than 10 workers

2.         Are not incorporated formally

3.         Owned by individuals/self-employed people rather than as registered firms

4.         Engaged in small scale production, sales or services

COMPLAINTS COMMITTEE

A key aspect of the POSH Law is its provision for establishing a grievance redressal forum, specifically the complaints committee.[9] The Act outlines two types of complaints mechanisms: the Internal Committee (“IC”) and the Local Committee (“LC”). Both the IC and LC are endowed with powers equivalent to those of a civil court under the Code of Civil Procedure, 1908. It is mandated that at least half of the total members nominated to all complaints committees must be women. Members of these committees will serve for a tenure of up to 3 years from the date of their nomination or appointment.

Internal Committee:

It is the duty of every employer, in an organization with 10 or more employees, to establish an Internal Committee (IC) at each office or branch to address and resolve issues related to sexual harassment. Failure to establish an IC may result in fines, as it constitutes non-compliance under the POSH Law. The IC consists of four members: a Presiding Officer (required to be a woman), two employee members, and one external member.

In the case of Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017)[10], the court emphasized the imposition of fines under the POSH Act for not forming the IC. The Delhi High Court fined Medanta Hospital INR 50,000 for not having an Internal Complaints Committee (ICC) as per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The court was hearing a petition by a former employee who claimed that she was sexually harassed by her senior and then fired. The court said that the hospital violated the law and the petitioner’s right by not having an ICC to address her complaint. The court ordered the hospital to pay the fine within four weeks, set up an ICC within two weeks, reinstate the petitioner with full back wages and benefits, and conduct a fresh inquiry by the ICC. The court also said that the hospital’s conduct was unacceptable and that it should take steps to prevent such incidents in the future. Therefore, adherence to the committee’s composition is crucial.

Local Committee:

At the district level, the government must establish a Local Committee (LC) to address complaints of sexual harassment from the unorganized sector or establishments with fewer than 10 employees, or in cases where the IC has not been formed, or if the complaint is against the employer or involves domestic workers. The LC will consist of following 5 members: Chairperson (must be a woman), one local woman, 2 NGO members (one must be a woman and at least one has to have a background of law.) and one ex officio member.

CONCILIATION

Under Section 10 of the POSH Act, the Internal Committee/Local Committee has the authority to attempt resolving a complaint at the aggrieved woman’s request through conciliation, aiming for an amicable settlement between the parties. Conciliation serves as an informal approach to address complaints before they progress to formal investigations. Consequently, the IC may potentially resolve sexual harassment complaints through conciliation between the parties prior to initiating inquiry proceedings, although it’s important to emphasize that monetary settlements should not be the basis for conciliation. The Internal Committee or Local Committee must record the settlement, and copies should be provided to both the aggrieved woman and the respondent after reaching an agreement. Following a settlement, the IC is prohibited from conducting an investigation under the POSH Act.

INTERIM RELIEFS

Upon receiving a complaint, the Local Committee or Internal Committee has the authority to propose interim measures to the employer, which may include the following:

• Relocating either the aggrieved woman or the respondent;
• Granting the aggrieved woman an additional statutory/contractual leave of three months;
• Prohibiting the respondent from reporting on the work performance of the aggrieved woman or preparing her confidential report, with the possibility of delegating such tasks to another employee.

CONCLUSION

The Indian POSH Act, 2013 stands as a crucial legal instrument in tackling workplace sexual harassment. Providing precise definitions, mechanisms for accountability, a structured complaint system, and noteworthy attributes such as expeditious resolution and accessibility from remote locations, this legislation represents a milestone in fostering secure work environments. The effectiveness of this law relies significantly on the active involvement of employers and District Officers, although there may still be room for enhancements to ensure optimal functionality.

REFERENCES

• Sneha Mahawar, POSH Act, 2013, (last visited Jan. 7,2024), https://blog.ipleaders.in/posh-act-2013/#Preamble_to_the_POSH_Act
• Abhishek Bansal, EMERGENCE OF THE POSH ACT & ITS FEATURES VIZ-A-VIZ VISHAKA GUIDELINES, (last visited Jan. 7,2024), https://acumenjuris.com/article-single.php?id=36
• Sumali Nagarajan, Key Provisions and Definitions under the POSH Act 2013 & its USPs, (last visited Jan. 6,2024), https://cecureus.com/key-provisions-and-definitions-under-the-posh-act-2013-its-usps/
• Nitish Desai and Associates, Prevention of Sexual Harassment at Workplace, (last visited Jan. 8,2024), https://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf
• Vandana Sharma, POSH ACT 2013-KEY POINTS, (last visited Jan. 8,2024) https://www.linkedin.com/pulse/posh-act-2013-key-points-vandana-sharma/

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[1] Statement of Objects and Reasons, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

[2] Section 2(n) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[3] Section 2(f) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[4] Section 2(g) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[5] Section 2(o) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[6] Saurabh Kumar Mallick vs. The Comptroller & Auditor General of India and Another, WP(C) No. 8649/2007

[7] Section 2(a) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[8] Section 2(p) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[9] Section 4 of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

[10] Global Health Private Limited & Mr. Arvinder Bagga v. Local Complaints Committee, District Indore and Others (2017), W.P. No. 22314 of 2017

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