Sexual Harassment at Workplace Act Implementation Guide

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the "Act") (to be read in conjunction with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Posh Act 2013 has been intimated and implemented in India for more than two years. The Government of India, through the Ministry of Women and Child Development, has published a Handbook on Sexual Harassment of Women at Workplace (the "Handbook"), which is intended to better inform employees about workplace sexual harassment and their right to an informed claims process in seeking relief as provided by the Law and Rules. India sexual harassment act for workplace in India has been implememted so that there can be powerful law at workplaces be it small or large, with an intent to protect women from sexual harassment.

While the legislation's goal has been hailed, its execution has presented particular obstacles for Indian businesses, with roadblocks arising in the form of day-to-day issues that the posh act (sexual harassment of women at workplace act) does not address. In this post, we look at the major obstacles that Indian employers confront in implementing the legislation and rules:

Sexual harassment of women at workplace Act or popularly known as Posh Act requirements in India

Sexual harassment is a pattern of behaviour. It is characterised as a sexually inappropriate behaviour. Whether in a developed, developing, or undeveloped country, sexual harassment in the workplace is a prevalent problem. Atrocities against women are endemic worldwide. It is a worldwide issue that has a detrimental influence on both men and women. It occurs more frequently with the females in India but there are instances where we found sexual harasmment cases arise against males as well.

No matter how hard one tries to protect, ban, prevent, or provide remedies, violations will always occur. It is a crime committed against women, who are seen as the most vulnerable members of society. As a result, women are subjected to a wide range of crimes, including female feticide, human trafficking, stalking, sexual abuse, sexual harassment, and the most horrific crime, rape. Harassment of a person (an application or an employee) because of their sex is illegal.

Harassment can take many forms, including "sexual harassment" or unwanted sexual approaches, requests for sexual favours, and other forms of sexual verbal or physical harassment. Sexual harassment is unwanted sexual conduct that causes a person to feel insulted, embarrassed, or intimated. It can take the form of physical, verbal, or written communication.

Unwelcome The key word here is "behaviour." Unwelcome does not imply "forced." Even though the activity is rude and disagreeable, a victim may consent or agree to it and actively participate in it. As a result, sexual activity is considered undesirable if the individual who is subjected to it believes it is unwelcome. Whether or not a dating request, sex-oriented remark, or joke was actually appreciated depends on the case.

What is the distinction between 'harassment' and'sexual harassment'?

Only sexual harassment allegations are addressed under the posh act. Employers, on the other hand, frequently get complaints that purport to be about sexual harassment but are actually about general harassment. Alternatively, there are complaints of general harassment that contain components of sexual harassment that are filed with the employer. One dilemma that emerges is how to handle such accusations, and whether they should be sent to the company's Internal Complaints Committee (ICC) or handled by the employer using its internal harassment or unethical behaviour methods.

When a complainant makes a claim of sexual harassment, the employer should not ponder on the subject and should instead send the claim to its ICC, which will determine whether the claimed complaint is sexual harassment or not, according to the Act's definition and scope. When there are aspects of sexual harassment in a general harassment complaint, the complainant should be advised of her rights under the Act so that she may determine how to proceed and whether or not to go to the ICC.

In this respect, the Guide has offered some clarity by giving evidence of not only behaviour and attitude that defines sexual harassment at work (e.g., teasing about a person's body, stalking, unwelcome flirting, etc. ), but also behaviour that may indicate underlying workplace sexual harassment that warrants investigation (e.g., humiliating a person in front of colleagues, exclusion from group activities, inappropriately giving too much/little work, etc.).

Policies that are gender-neutral

Identifying the sociocultural context

Employer rules against sexual harassment in the international setting tend to be gender-neutral, protecting both men and women. In India, however, the law protects exclusively women against sexual harassment, even though the perpetrator might be either a man or a woman. While nothing stops an employer from implementing a gender-neutral sexual harassment policy, it should be emphasised that in India, power imbalances at work and in society have historically made women the victims of sexual harassment. As a result, while designing a gender-neutral policy, it's critical to consider the social context when dealing with sexual harassment accusations from males.

The ICC's Authority

When extending a policy created under the existing posh act to both genders, it's necessary to consider the obstacles that may occur if an ICC's judgement is overturned. The first worry is the ICC's authority. Since the Act grants an ICC certain quasi-judicial powers (such as the power to summon and compel the attendance of any person and to examine him under oath, as well as the power to order the discovery and production of documents), The topic is whether an ICC will hold such powers when examining a complaint brought by a male, and if such powers may be granted to an ICC by agreement.

Procedure for filing an appeal as per the sexual harassment of women at workplace act

Another question is whether an ICC ruling in which the complainant is a male can be appealed under the Act's provisions. Given that the right to appeal has been created by legislation, the labour authorities are unlikely to consider such a case. In such cases, the policy may include an internal appeal system.

The ICC's composition for posh act

The posh act specifies the qualifications and gender of the members who must make up an ICC in no uncertain terms. Employers, on the other hand, discover that meeting the composition criteria causes a slew of problems, including the ones listed below.

Several places

Employers with operations throughout India frequently confront the question of whether hiring a panel of ICC members (say, 4 to 10) from which the employer can choose—depending on the parties involved and the venue of the hearing—will be in compliance with the Act's letter.

Members of the ICC's Profile

When defining the correct composition of the ICC to hear sexual harassment accusations, the identity and position of the members in relation to the complainant and the perpetrator (whether in direct reporting line and seniority) is an essential issue. Given that the posh act is premised on ensuring a non-biased environment for complaint resolution, this becomes a critical problem.

Foreigners or employees from group firms from outside India are appointed.

Employers are increasingly forming ICCs with personnel from group firms based outside of India. The Act is silent on whether or not foreign nationals are permitted to participate in an ICC. Foreign nationals may be allowed to join an ICC if they satisfy certain conditions laid forth in the Act, unless there is an explicit prohibition to the contrary. A person employed by a group firm, for example, may not be a legal ICC member if he is not working at the same workplace or by the same employer.

Furthermore, such an appointment should be scrutinised to see if the individual thus chosen would necessarily have the social context in which sexual harassment should be perceived, as well as if such an employee will be sensitised to the social realities in India.

Women in senior positions

Women in high positions are not found in every company. Employers must determine whether a woman who is not a "senior level" employee can be nominated to the ICC. The employer must consider whether a junior-level female employee appointed as the chairperson of the ICC will be able to fulfil the role that is expected of her under the Act, and whether simply informing her about the anti-sexual harassment policy and procedures will be enough to ensure compliance with the Act.

Reporting on an Annual Basis

The employer is required to provide an annual report on the resolution of sexual harassment complaints to the authorities that may be notified under the posh act 2013. Many governments have yet to send a notice stating who has power. Some companies, however, have submitted the yearly report with the labour department to confirm compliance with the Act's terms (jurisdictional labour commissioner). This action must be balanced against the employer's requirement of confidentiality for information relating to sexual harassment accusations. It's possible that disclosing information about sexual harassment accusations to authorities who don't have jurisdiction over such things is a violation of confidentiality duties.

Furthermore, submitting the annual report haphazardly exposes the report to the chance of it entering into the hands of the press/media. The press/media may report on the number of incidents of sexual harassment in the organisation without providing details on the redress procedure. This, in turn, may result in negative PR for the company.

As a result, an employer may send a letter to the appropriate ministry alerting it that the annual report has been completed and that the employer is awaiting notice of the authority to whom the report must be submitted.

When trying to deal with these often practical issues where full compliance with the letter of the law may not be possible or may result in a situation where the act's intent is not being served, it's critical to analyse each situation with the legislature's intent in mind (i.e., a workplace free of sexual harassment) and to ensure that natural justice principles are upheld and that no one is sentenced without a fair hearing.