The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is a legislative act in India that seeks to protect women from sexual harassment at their place of work. It was passed by the Lok Sabha (the lower house of the Indian Parliament) on 3 September 2012. It was passed by the Rajya Sabha (the upper house of the Indian Parliament) on 26 February 2013. The Bill got the assent of the President on 23 April 2013. The Act came into force from 9 December 2013. This statute superseded the Vishaka Guidelines for Prevention Of Sexual Harassment (POSH) introduced by the Supreme Court (SC) of India. It was reported by the International Labour Organization that very few Indian employers were compliant to this statute. Most Indian employers have not implemented the law despite the legal requirement that any workplace with more than 10 employees need to implement it. According to a FICCI-EY November 2015 report, 36% of Indian companies and 25% among MNCs are not compliant with the Sexual Harassment Act, 2013. The government has threatened to take stern action against employers who fail to comply with this law.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) prescribes that every organization with ten or more employees must constitute an Internal Committee which will take measures to prevent sexual harassment and redress sexual harassment complaints at workplace. Ensure that your employees are aware of the existence of the Internal Committee and the procedure to file a complaint. Regular trainings that the employees undergo can be used to instill faith in the Internal Committee.
“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;
Provisions of Prevention of Sexual Harassment at Workplace
Article 19 (1) g of the Indian Constitution affirms the right of all citizens to be employed in any profession of their choosing or to practice their own trade or business. This case established that actions resulting in a violation of one’s rights to ‘Gender Equality’ and ‘Life and Liberty’ are in fact a violation of the victim’s fundamental right under Article 19 (1) g. The case ruling established that sexual harassment violates a woman’s rights in the workplace and is thus not just a matter of personal injury.
(1) No woman shall be subjected to sexual harassment at any workplace.
(2) The following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment:
(i) Implied or explicit promise of preferential treatment in her employment; or
(ii) Implied or explicit threat of detrimental treatment in her employment; or
(iii) Implied or explicit threat about her present or future employment status; or
(iv) Interference with her work or creating an intimidating or offensive or hostile work environment for her; or
(v) Humiliating treatment likely to affect her health or safety.
- The Act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
- The Act also covers concepts of ‘quid pro quo harassment’ and ‘Hostile work environment‘ as forms of sexual harassment if it occurs in connection with an act or behaviour of sexual harassment.
- The definition of “Aggrieved woman“, who will get protection under the Act is extremely wide to cover all women, irrespective of her age or employment status, whether in the organised or unorganised sectors, public or private and covers clients, customers and domestic workers as well.
- An employer has been defined as any person who is responsible for management, supervision, and control of the workplace and includes persons who formulate and administer policies of such an organisation under Section 2(g).
- While the “Workplace” in the Vishakha Guidelines is confined to the traditional office set-up where there is a clear employer-employee relationship, the Act goes much further to include organisations, department, office, branch unit etc. in the public and private sector, organized and unorganized, hospitals, nursing homes, educational institutions, sports institutes, stadiums, sports complex and any place visited by the employee during the course of employment including the transportation. Even non-traditional workplaces which involve tele-commuting will get covered under this law.
- The committee is required to complete the inquiry within a time period of 90 days. On completion of the inquiry, the report will be sent to the employer or the District Officer, as the case may be, they are mandated to take action on the report within 60 days.
- Every employer is required to constitute an Internal Complaints Committee at each office or branch with 10 or more employees. The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of civil courts for gathering evidence.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- The inquiry process under the Act should be confidential and the Act lays down a penalty of Rs 5000 on the person who has breached confidentiality.
- The Act requires employers to conduct education and sensitisation programmes and develop policies against sexual harassment, among other obligations. The objective of Awareness Building can be achieved through Banners and Poster displayed in the premises, eLearning courses for the employees, managers and Internal Committee members, Classroom training sessions, Communication of Organizational Sexual Harassment Policy through emails, eLearning or Classroom Training. It is recommended that the eLearning or Classroom Training be delivered in the primary communication language of the employee.
- Every organization must file an Annual Report to the District Officer every calendar year as prescribed in the Rule 14 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013.
- Penalties have been prescribed for employers. Non-compliance with the provisions of the Act shall be punishable with a fine of up to ₹ 50,000. Repeated violations may lead to higher penalties and cancellation of licence or deregistration to conduct business.
- Government can order an officer to inspect workplace and records related to sexual harassment in any organisation.
- Under the Act, which also covers students in schools and colleges as well as patients in hospitals, employers and local authorities will have to set up grievance committees to investigate all complaints. Employers who fail to comply will be punished with a fine of up to 50,000 rupees.
The burden of preventing sexual harassment rests on the employer.
- In the United States, Canada and in some European Union Member States, employers are responsible for providing their employees with a work environment that does not discriminate and is free of harassment.
- Employers are, therefore, required by law to take steps to prevent and deal with harassment in the workplace.
- If the employer has not taken all reasonable steps to prevent and deal with harassment in the workplace, the employer may be liable for any harassment which does occur, even if unaware that the harassment was taking place.
- The United States, in particular, has a well- articulated standard of employer liability for sexual harassment committed by an employee.
In addition to the employers responsibility to provide a non-discriminatory and non-violent workplace atmosphere, employees must also assume an active role in the prevention of sexual harassment. Employees should commit to do the following:
- Obtain and become familiar with the organizations policy on sexual harassment;
- Examine ones feelings, attitudes, and behaviors in relation to sexual harassment;
- See that behavior corresponds with the expectations and behavioral requirements of the organizations sexual harassment policy.
ICC (Internal Complaint Committee):
Every company in which there are 10 or more employees must have ICC and all the complaints regarding sexual harassment are dealt with the committee. The ICC should comprise of 4 members among them half of the members will necessarily have to be women.
4 members of ICC:
- A presiding officer, women working at a senior level in the office
- Any member who is committed to the cause of women
- Any member of the company who has legal knowledge and experience in social work
- Any external member for example NGOs, any person familiar with issues related to sexual harassment.
If in a company there are less than 10 persons then no need to form a committee and in this case all the complaints go to the local complaints committee which is set up by district officers in every district as per the Act.
The complaints committee is responsible for receiving and investigating every complaint of sexual harassment, submitting findings and recommendation of the inquiry to the employer and coordinating with the employer before implementing any kind of appropriate action. The committee is also responsible to maintain confidentiality throughout the process.
It is the duty of the employer to provide a safe working environment and conduct awareness programs regarding the prevention of sexual harassment and provide necessary assistance and facilities to the committee in dealing with the complaints.
Procedure for dealing with complaints:
The complaint is needed to be lodged within 3 months from the date of incident along with any documentary evidence or names of witnesses if available. The committee can also extend the timeline to another 3 months if it is satisfied with the reasons which prevented the lodging of a complaint within the first 3 months. The complaint shall be in any form wither through phone or email but every oral communication should be followed up with the written communication and in any case where a complaint cannot be made in writing then the presiding officer or any member of the committee shall assist the person for making the complaint in writing.
In case if an aggrieved person is unable to lodge the complaint then any person who is having knowledge of the incident or any family member/ relative/ friend or co-worker can lodge the complaint on behalf of his/her. It is the responsibility of the person who receives the complaint should inform the committee members.
ICC can try and make parties to settle but monetary compensation is not the basis for settlement. If the aggrieved person is not ready to settle, then ICC will inquire into the complaint and both the parties will get a chance to be heard and complete the inquiry within 90 days. After the inquiry, if the person who committed such act is found guilty then Corrective action is taken by the appropriate authority. Corrective action includes
- Formal apology
- Transfer of the person to other department
- Suspension or termination of services of the employee found guilty for such offence
- A written warning to the concerned employee and a copy of it are maintained in his record.
Reliefs to victims:
- Monetary compensation
- Grant leave for 3 months
- Transfer the victim to any other department where he/she feels safe to work
If the employer does not comply with the law then fine of Rs.50,000/- can be imposed. On repeated non-compliance of the law employer can be penalized with twice the punishment. Non-compliance can also lead to cancellation of licence, withdrawal or non-renewal of registration for carrying on business, by the Government.
Steps to prevent sexual harassment
It is recommended that employers take the following steps to prevent sexual harassment.
(a) Get high-level management support
Obtain high level support from the chief executive officer and senior management for implementing a comprehensive strategy to address sexual harassment.
(b) Write and implement a sexual harassment policy
- Develop a written policy which prohibits sexual harassment in consultation with staff and relevant unions.
- Regularly distribute and promote the policy at all levels of the organisation. Ensure the policy is easily accessible on the organisation’s intranet.
- Provide the policy and other relevant information on sexual harassment to new staff as a standard part of induction.
- Translate the policy into relevant community languages where required so it is accessible to employees from culturally and linguistically diverse backgrounds.
- Ensure that the policy is accessible to staff members with a disability.
- Ensure that managers and supervisors discuss and reinforce the policy at staff meetings. Verbal communication of the policy is particularly important in workplaces where the literacy of staff may be an issue.
- Periodically review the policy to ensure it is operating effectively and contains up-to-date information.
(c) Provide regular training and information on sexual harassment to all staff and management
- Conduct regular training sessions for all staff and management on sexual harassment and the organisational policy. This training should be behaviourally based which means it should increase knowledge and understanding of specific behaviours that may amount to sexual harassment under the Sex Discrimination Act. Regular refresher training is recommended.
- Train all line managers on their role in ensuring that the workplace is free from sexual harassment.
- Display anti-sexual harassment posters on notice boards in common work areas and distribute relevant brochures.
(d) Encourage appropriate conduct by managers
- Line managers should understand the need to model appropriate standards of professional conduct at all times.
- Include accountability mechanisms in position descriptions for managers.
- Ensure that selection criteria for management positions include the requirement that managers have a demonstrated understanding of and ability to deal with discrimination and harassment issues as part of their overall responsibility for human resources.
- Check that managers are fulfilling their responsibilities through performance appraisal schemes.
(e) Create a positive workplace environment
- Remove offensive, sexually explicit or pornographic calendars, literature, posters and other materials from the workplace.
- Develop a policy prohibiting inappropriate use of computer technology, such as e-mail, screen savers and the internet.
- It is recommended that medium and large employers undertake regular audits
- to monitor the incidence of sexual harassment in their workplaces and the use
- and effectiveness of their complaints procedures.