Guide To Prevention Of Sexual Harassment (POSH) At Workplace In India

Published on 27 Jul 2018 by Shivi

Asking or forcing a woman for sexual favours, using foul language or any other physical and moral conduct that can make a woman feel uncomfortable and unsafe constitutes an act of sexual harassment. The number of cases relating to sexual harassment with women in India has proliferated in the past couple of years. The fact that almost 60% of these cases go unreported adds to the distress!

Workplace has been seen as a common place where women are subjected to sexual harassment. Women employees are seen as an easy target pertaining to the generic belief that a woman can be silenced when threatened with her job. As a deterrent to the nuisance of women’s sexual harassment at workplace, the Sexual Harassment Of Women At Workplace (Prohibition, Prevention And Redressal) Act, 2013 was enacted.

Definition of Sexual Harassment at Workplace

Sexual harassment at workplace can take the form of promises made for preferential positions and promotions in exchange for sexual favours, unwanted physical contact and advances, unwelcome physical, verbal or non-verbal conduct of sexual nature, showing pornographic material or passing any perverted remarks.

The fact that the victim of sexual harassment in workplace is an employee drawing any amount of salary, honorarium or voluntarily in a government, public, domestic or private enterprise does not affect the employer’s liability to provide safe and comfortable working environment for all the employees. Protection to a woman at her workplace must be provided irrespective of her age, employment status, etc.

Laws relating to Sexual Harassment Of Women At Workplace

Sexual harassment at workplace is unethical, unprofessional, dominating but also an unlawful act which is punishable under Sexual Harassment Of Women At Workplace Act, 2013. The Act aims at creating awareness against harassment and gives a platform to the women employee to file a complaint against sexual harassment at workplace. The Act explicates the kinds of harassment that may take place at a workplace and the legal action that can be taken against the employer or co-worker.

Sexual harassment also constitutes violation of the fundamental rights of a woman under Articles 14, 15 and 21 of the Indian Constitution. Articles 14 and 15 deal with the right to equality and Article 21 with the right to life and to live with dignity. It is also a fundamental right of the Indian citizen to be able to practise any profession and carry out any occupation without any discrimination.

Harassment that includes offensive comments or suggestions about someone’s sex is sexual harassment. Sexual harassment in the workplace is a criminal offence under Section 354A of the IPC, 1860 and is punishable with imprisonment that may extend up to a period of 3 years, with or without fine. Section 509 of the IPC also lays down the punishment to anyone who outrages the modesty of a woman as simple imprisonment for up to 1 year, with or without fine.

READ: Vishakha Case Guidelines On Sexual Harassment At Workplace

Duties of an Employer

The Sexual Harassment Act also enumerates the following duties of employers to protect their employees:

  • To provide a safe working environment.
  • To display the consequences of any kind of harassment, at a place which is easily visible and accessible to all the employees.
  • To organise workshops and awareness seminars highlighting the matters of sexual harassment at workplace.
  • To set up an Internal Complaints Committee mandatorily to deal with such situations when there are more than 10 employees working in the organisation.
  • To lay down the Prevention of Sexual Harassment (POSH) policy in the HR policies and procedures of the company.
  • To help the aggrieved woman in filing a formal complaint against the accused and help the government authorities in furtherance of any such complaint by making all the necessary information available.

How to deal with Sexual Harassment in Workplace?

A woman aggrieved of any act amounting to sexual harassment at workplace can take the following steps to take a legal action against the employer or co-worker involved in such act:

  1. File a complaint with the HR department or Internal Complaints Committee: A complaint can be filed within 3 months of the date on which the last incident of harassment took place. The first contact must be made to the HR department to inform them about the incidents. However, in case of no action from the HR department, the next step is to inform the Internal Complaints Committee (ICC) about the incidents. The ICC is required to complete the inquiry within 90 days from the date it received the complaint. A report must be sent to the employer and the District officer within 10 days of completing the inquiry. The ICC can take the necessary actions to subdue the issue including counselling, giving a written warning to the accused, transferring the accused or victim to another department or branch of the company, suspension or termination of the accused, withholding the promotion or increment of the accused, or even paying compensation to the victim out of the salary of accused.

  2. File an appeal with the Court: Once the employer or District Officer receives the inquiry report, an action must be taken within 60 days. However, if the victim is not satisfied with action recommended or the report submitted, an appeal can be filed with the appropriate court through a good employment and labour lawyer in India.

  3. File a Criminal Complaint against the accused: A criminal complaint can be filed against the accused for any word, act or gesture that amounts to sexual harassment. A criminal complaint can be filed with the help of a criminal lawyer in India.

From the #MeToo Movement to the cases of Uber, Tehelka or TVF, sexual harassment at workplace is that elephant in the room that no one wanted to address until a few years ago! The POSH Act, 2013 has empowered every woman employee in India to ascent against the stigma and made every employer accountable for the well-being and protection of his employees.

ALSO READ: Important Things To Know About Sexual Harassment At Workplace

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