
It’s been 11 years since the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). On the one hand, there has been a gradual rise in reporting by women, at least in the formal sector, indicating that more employees are becoming aware of the Act and the procedures stipulated in it.
At the same time, navigating due process and ensuring meaningful compliance can be overwhelming for companies. How do we embrace the spirit of the law: ensuring safe, respectful workplace cultures?
Developments and judgements over the years, as the POSH Act is increasingly applied and challenged, have broadened its scope, applicability and interpretations. In this article, we outline some of these rulings and developments to integrate into your safety practices.
An intentionally broad interpretation of the term ‘Workplace’: The term ‘workplace’ has been interpreted ambiguously by courts on purpose. The Bombay High Court in 2013, emphasized that the term ‘workplace’ is intentionally broad to include various scenarios of potential harassment. Multiple High Courts have since supported this interpretation, confirming that ‘workplace’ extends beyond just physical office spaces. Take a look at this important piece on our blog that sheds light on workplace harassment. The Rajasthan High Court recently stated that in today’s digital age, if a female employee is subjected to sexual harassment by an individual from a branch office in another state, it falls within the framework of the POSH Act. The court asserted that these branch offices should be viewed as part of a unified digital workplace. This means that if a woman encounters online harassment from someone working out of a different state, she can file a complaint under the POSH Act against that individual.
Broadening the scope of “Sexual Harassment”: an ongoing conversation: The scope of what sexual harassment means in Indian law has been a contentious issue. The Kerala High Court in 2021 issued a judgment, stating that, in order for an act of harassment to be covered under the POSH Act, it must have a clear sexual undertone. The Bombay High Court, in addition, recognised that "sexual harassment" can also encompass behavior that creates an intimidating or hostile environment, affecting a woman’s health and safety. In 2020, in the Nisha Priya Bhatia vs Union of India case, the Supreme Court suggested the possibility of expanding the definition of sexual harassment to include all forms of gender-based discrimination at the workplace. This ruling opened the door to a more comprehensive understanding of workplace safety. However, this broader vision has yet to be fully embraced by Indian courts or lawmakers. It is clear, for now, that sexual harassment would constitute any unwelcome sexual behaviour.
Internal Committees are mandated to have an External Member: The POSH Act mandates the constitution of Internal Committees (ICs) in all organisations with more than ten employees. ICs are given the powers of a civil court to provide time-bound justice to survivors of sexual harassment. While they are made up of internal organisation members, it is important to note that ICs mandatorily must have external representation, as underscored by recent court rulings. The Supreme Court in 2020 observed that the absence of an independent external member is a fundamental defect in the constitution of any IC. The Court further opined that an independent member on the IC reduces the possibility of institutional bias. In this regard, the Delhi High Court ruled that if there are allegations of bias against any IC member, the inquiry process should be paused, and the disciplinary authority should investigate the claims. If the bias is proven, the inquiry should start over with a newly formed IC.
Same-gender sexual harassment complaints are maintainable: In a 2020 verdict, the Calcutta High Court held that same-gender complaints are maintainable under the POSH act. The Court mentioned that even if both individuals involved in an incident are of the same gender, one can still infringe upon the modesty or dignity of the other. The POSH Act states that while the Aggrieved person or complainant in cases of workplace sexual harassment has to be female/woman, the Respondent or accused can be an individual of any gender. This recent verdict by the Calcutta High Court has underscored this, as well as emphasised that sexual harassment is an issue of power, and there can be significant power differentials between people of the same gender.
These recent court rulings help us understand and interpret the law and contextualise compliance to company contexts. Many companies have embraced the spirit of the law to go beyond compliance by ensuring they have POSH policies, as well as safety policies that ensure that employees of all genders are able to work in safe, sexual harassment-free conditions.
In terms of the POSH Act itself, companies may refer to these rulings to not just handle cases of sexual harassment in a compliant manner, but also focus their policies and prevention strategies to incorporate this broader spirit of the law. As far as compliance mandates go, please make sure:
You have your POSH and safety policies in place
If you have more than 10 employees, your IC is set up and trained in accordance with the composition specified in the law (1 senior, female Presiding Officer, 2-3 members from your company, 1 External Member who is a domain expert. At least 50% of members must be women)
Mandatory annual training for staff on safe workplace behaviours is completed
You submit your annual compliance reporting to the District Officer on time
The legalese and processes may seem overwhelming, and that’s where TrustIn can step in and support you. We support more than 100 companies with their POSH compliance requirements with our three-P approach:
Program: We offer trauma-informed, interactive, and customized training sessions on POSH, gender, safety and inclusion for employees, leadership, and POSH committee members. We also facilitate culture studies to inform your prevention strategies
Policy: We provide legal advisory and support to establish compassionate, context-specific policies for compliance and contextual collaterals to display your zero-tolerance approach and commitment
Platform:
We serve as external members on your IC
The TrustIn Enterprise Platform supports ICs with end-to-end complaint handling, with automated deliverables and deadlines for swift justice delivery
End-to-end annual compliance reporting support
As we close out the eleventh year of the POSH Act’s enforcement, our commitment to enabling safe workplaces at scale is stronger than ever. Reach out to us on hello@trustin.co.in to find out more!
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