Are you facing Sexual Harassment at Workplace?
What is sexual harassment?
Sexual harassment is basically sexual abuse which harms the dignity of the women. It is a
form of sex discrimination projected through unwelcome sexual advances, requests for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication. Sexual harassment can be of two types: Implicit and Explicit. Implied sexual harassment is when a person by expression or by any gesture abuse a woman and Explicit Sexual Harassment is when a person touches any part of the body of a woman without her consent.
Where is the law for Sexual Harassment at workplace?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013, commonly referred to as the ‘POSH Act’ is an Indian law enacted with the
the objective of making workplaces safer for women by preventing, prohibiting and redressing acts of sexual harassment against them in the workplace.
What is a workplace in this context?
According to Section 2(o) of this Act, ‘workplace’ is a place to which these laws against
sexual harassment applies to and includes:
i. Any department, organization, undertaking, establishment, enterprise, institution, office,
branch or unit which is established, owned, controlled or funded by either the Government, a Government-run the local authority (such as a Municipal Corporation), a Government Corporation, or a Government-run co-operative society.
ii. Any private-sector organization, private venture, undertaking, enterprise, institution,
establishment, society, trust, NGO, or a service provider, that carries out commercial,
professional, vocational, educational, entertainment, industrial, financial or health-related
activities.
iii. Hospitals and nursing homes.
iv. Sports institutes, stadiums, sports complexes and competition venues that may be used for
training, sports or any other related activities.
v. Any place visited by an employee arising out of during the course of their employment.
This includes any transportation service provided by the employer for visiting any such place.
vi. A house or any domestic dwelling.
vii. Any enterprise, commonly said to belong to the unorganised sector, which is owned by
individuals or self-employed workers and engaged in the production of sale of goods or
services. Such laws will still be applicable if the act is done in close proximity from the place of work (like a tea stall outside the workplace), Control of the management over such a place(like canteen, parking area)/ residence where the working woman is residing; and Such a residence has to be an extension or contiguous part of the working place.
The number of cases of sexual harassment at the workplace is increasing day by day; its
impact on a woman’s life is unimaginable. Most of them don’t want to speak about it fearing
to lose their bread and butter. It is not limited to small unknown workplaces but includes few of the topmost in the list.
Men are no less victim of Sexual harassment at workplace. According to the statistics every 5 out of 1 complaint are registered by men that they are sexual harassed at their workplace, no one wants to take the issue seriously and this is the reason why sexual harassment of men continuously increasing. This act also provides protection against sexual harassment of men; because this act aims to provide a sexual harassment-free environment and safe workplace, and in this regard, gender is immaterial this law provides protection to all who is sexually harassed. It can happen to anyone irrespective of their sex and gender.
Who is a beneficiary under the POSH Act?
Beneficiaries are the ones who can file a complaint under this act against sexual harassment. The complainant may be of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. She may be the director of the company, the founder of the organization, a peon, a customer or even a client.
All women employees regardless of whether:
i. They are employed regularly, temporary, ad hoc or daily wage basis.
ii. They are employed directly or through an agent or a contractor.
iii. They are employed with or, without the knowledge of the principal employer.
iv. They are employed for remuneration or on a voluntary basis.
v. The terms of employment are expressed or implied.
The above-mentioned are protected under the PoSH Act. The PoSH Act also applies to
women contract workers, probationers, trainees, apprentices and interns. The POSH Act is
not a gender-neutral legislation and protects only women. Therefore, the safeguards under
the POSH Act are not applicable to ‘men’ victims although employers may choose to
extend the protection through their policy.
What instances does sexual harassment include?
A beneficiary can complain if she faces one of the following:
1. Physical contact and sexual advances.
2. A demand or request for sexual favours.
3. Making sexually coloured remarks.
4. Showing pornography.
5. Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
6. If such an act is connected with the implied or explicit promise of preferential treatment in employment (like promising a promotion);
7. If such an act is connected with an implied or explicit threat of detrimental treatment in
employment(like a threat to fire);
8. If such an act is connected with an implied or explicit threat about a present or future employment status;
9. interference with work or creating an intimidating or offensive or hostile work
environment;
10.humiliating treatment likely to affect the lady employee’s health or safety.
11.Unwelcome touching
12.Staring or leering
13.Stalking
14.Showing or clicking sexually explicit pictures or posters
15.unwanted invitations to go out on dates
16.requests for sex
17.intrusive questions about a person’s private life or body
18.unnecessary familiarity, such as deliberately brushing up against a person
19.sexually explicit emails or SMS text messages
These are just examples as per the POSH Act. Many a time such acts are made to be less
obvious, perhaps delivered in a more subtle way. In such situations, perpetrators may
excuse their behaviour as flattering or flirtatious, which would make the victim ponder
upon. The fact is, if the behaviour of a sexual nature reasonably makes a person feel
offended, humiliated or intimidated, then it’s sexual harassment.
Whom to complain?
An important feature of the POSH Act is that it envisages the setting up of a grievance
redressal forum. It also mandates an internal committee when there are more than 10
employees. When a complaint is registered under this act the committee has to complete the inquiry in 90 days and send the report to district officials who has to take further action in 60 days. The inquiry process should be confidential if anyone breaches this confidentiality he/she will liable of the penalty of Rs. 5000/-.
When to complain?
The process of filing the complaint for any victim of sexual harassment at a workplace is
limited in and within 3 months of the incident. In case of any mental or physical incapacity,
the complaint can be filled by her relatives or friend or co-worker or the member of National Commission for women or state women commission or any other person who have knowledge of the incident with the written consent of the victim.
What is your right as a victim during the inquiry?
During the course of the inquiry, the victim has the right to ask for her transfer or transfer of the person against whom the complaint filed or she can take leave of 3 months. The victim at no cost can be fired from the workplace during the inquiry.
What are the repercussions of not complying with the PoSH Act?
Non-compliance with the provision of this act the person will be liable for a fine up to Rs.
50,000. And the repetition of the same offence will lead to higher penalty and cancellation of licence.
What about false and malicious complaints?
The PoSH Act takes into cognizance, false and malicious complaints and provides for strict
action against them. If the committee finds that an allegation of sexual harassment is false, it can recommend the employer or District Officer to take action against the woman or the
person who has made the complaint in accordance with the provisions of the service rules
applicable to them.
Sexual Harassment at workplace of men
Men are no less victim of Sexual harassment at workplace. According to the statistics every 5 out of 1 complaint are registered by men that they are sexual harassed at their workplace, no one wants to take the issue seriously and this is the reason why sexual harassment of men continuously increasing. This act also provides protection against sexual harassment of men; because this act aims to provide a sexual harassment-free environment and safe workplace, and in this regard, gender is immaterial this law provides protection to all who is sexually harassed. It can happen to anyone irrespective of their sex and gender.
Can a complaint be registered of sexual harassment against the same sex?
Yes, in a recent judgment passed by Honourable Calcutta High Court, same-sex complaints
are maintainable under this act. The court observed that with the changing dimensions of
sexual orientations, anything is possible, and therefore a complaint against the same sex is
also valid.
*Everything cannot be regulated by laws and punishments. Keeping the legal aspect aside,
not providing a safe and protected workplace can hamper the psychological growth of the
employees which further reduces productivity. If you are working, be aware and
remember your rights!