The Prevention of Sexual Harassment (PoSH)

What is the Prevention of Sexual Harassment at the Workplace Act (POSH Act)?

The POSH Act is a legislation in India that aims to prevent and address sexual harassment at the workplace. It mandates organizations to establish Internal Complaints Committees (ICCs).

 

Who does the POSH Act cover?

The POSH Act covers all women, irrespective of their employment status, including regular, temporary, or contract employees. It applies to all workplaces, whether in the public or private sector.

 

What constitutes sexual harassment under the POSH Act?

Sexual harassment encompasses unwelcome physical contact, advances, requests for sexual favors, making sexually colored remarks, or engaging in any other unwelcome conduct of a sexual nature that creates a hostile work environment.

 

What are the responsibilities of employers under the POSH Act?

Employers must create a safe and conducive work environment, establish an Internal Complaints Committee (ICC), conduct awareness programs, and ensure the timely resolution of complaints.

 

What is an Internal Complaints Committee (ICC), and how is it constituted?

An ICC is a committee that the employer establishes to inquire into complaints of sexual harassment. It must include a presiding officer, two members from among employees, and one external member from a women’s rights organization.

 

Is there a time limit for completing the inquiry under the POSH Act?

The POSH Act specifies that the inquiry process should be completed within 90 days. However, it may be extended under exceptional circumstances with written reasons provided.

 

What qualifies an individual to be a member of the Internal Complaints Committee (ICC) with expertise in matters pertaining to sexual harassment?

An eligible individual for this role may have a background as a social worker with a minimum of 5 years’ experience in fostering societal conditions conducive to the empowerment of women, particularly in addressing workplace sexual harassment. Alternatively, the person could have expertise in labor, service, civil, or criminal law, as specified in Section 4 of the Rules.

 

Who bears the responsibility for disbursing the fees and allowances to the specified member?

The employer is responsible for disbursing allowances.

 

To whom are payments directed for the Local Complaints Committee?

The District Officer is responsible for disbursing allowances.

 

What is the process for filing a complaint?

Any woman who feels aggrieved may submit a written complaint of workplace sexual harassment to the Internal Committee or Local Committee within three months from the date of the incident or the last incident in the case of a series of events. If the woman is unable to write, the Presiding Officer or any member of the Internal Committee, Chairperson, or any member of the Local Committee will provide all necessary assistance, as per Section 9(1) of the Act.

 

What should be the course of action when both parties involved are employees?

In cases where both parties involved are employees, they will have an opportunity to be heard during the inquiry process. Furthermore, the Committee will provide both parties with a copy of the findings, allowing them to make representations against the findings.

If the ICC or LCC determines that a witness has provided false evidence, the committee can recommend appropriate action to the employer of the witness or the District Officer, in alignment with the provisions of the service rules or as prescribed (Section 14(2) of the Act).

 

What alternatives and remedies are available to me as a complainant, i.e., the individual filing the complaint?

As a complainant, you have the right to choose between the casual method (conciliation) or the formal manner (inquiry). If you opt for the informal method and the respondent fails to abide by the duties of the conciliation agreement, you have the option to initiate the formal process. The IC’s role in the informal process is more limited compared to their role in the formal process.

 

What are my rights as a respondent in a case, i.e., a person against whom a grievance of sexual harassment has been raised?

In addition to the rights inherent in the principles of natural justice, the respondent has the following rights:

A) The right to receive copies of the proceedings, orders, and judgments made by the IC;
B) The right to respond to any allegations made against you, the respondent, in a timely manner; and,
C) The right to appeal against the decision of the IC if required.

 

Will I get into problem for being in a consensual romantic / sexual relationship at work?

You will not face trouble for engaging in a consensual relationship with any colleagues. However, if the relationship has the potential to disrupt the work environment for other personnel, such as a direct reporting relationship that could lead to favoritism, it is advisable to inform the management. Additionally, if a colleague in a consensual relationship has harassed you within the confines of that relationship, the Internal Committee (IC) may investigate the matter if it falls within their jurisdiction, as it could impact the health of the working environment for the individuals involved.

 

What is Quid Pro Quo harassment?

Quid Pro Quo harassment arises when a person attempts to exchange job benefits for sexual favors. It typically involves an employee and an authoritative figure, such as a supervisor, who possesses the authority to grant or withhold job benefits.

 

What type of penalties may be imposed by means of the Act?

Under the provisions outlined in the carrier regulations, the Act may impose various consequences. While service rules are not explicitly in place, the employer can institute disciplinary actions such as issuing a written apology, reprimand, warning, or censure. Furthermore, consequences may include withholding promotions, pay raises, or increments, and, in extreme cases, termination of employment. Additionally, individuals may be directed to undergo counseling or community service. Financial consequences, considering the respondent’s income, financial situation, as well as costs related to mental trauma, pain, emotional suffering, medical expenses, and missed career opportunities, may also be applied. If the financial responsibilities are not fulfilled, they can be collected as arrears of land revenue.