Sexual Harassment

Sexual harassment in the workplace is an unwelcome or unwanted attention of a sexual nature from someone at a work place that causes discomfort, humiliation, offence or distress, and / or interferes with the job. This includes all such actions and practices of a sexual nature by a person or a group of people directed at one or more workers.

According to The Supreme Court definition, sexual harassment is any unwelcome sexually determined behaviour, such as:-

• Physical contact
• A demand or request for sexual favours
• Sexually coloured remarks
• Showing pornography
• Any other physical, verbal or non-verbal conduct of a sexual nature

Sexual Harassment takes place if a person:

• Subjects another person to an unwelcome act of physical intimacy, like grabbing, brushing, touching, pinching etc.
• Makes an unwelcome demand or request (whether directly or by implication) for sexual favours from another person, and further makes it a condition for employment/payment of wages/increment/promotion etc.
• Makes an unwelcome remark with sexual connotations, like sexually explicit compliments/cracking inappropriate jokes with sexual connotations/ making sexist remarks etc.
• Shows a person any sexually explicit visual material, in the form of pictures/cartoons/pinups/ calendars/screen savers on computers/any offensive written material/pornographic e-mails, etc.
• Engages in any other unwelcome conduct of a sexual nature, which could be verbal, or even non-verbal, like staring to make the other person uncomfortable, making offensive gesture kissing sounds, etc.

PoSH Act

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“POSH Act”) was enacted in December 2013.

A direct outcome of this new law was increased awareness amongst the employee community. The media played a critical role in spreading that awareness and highlighting lack of compliances by employers. All of this led to creating a robust platform for the female workers to report harassment incidents. After enacting the law, the government on its part made it easier by launching SHe-Box initiative.

Sexual harassment

• The Delhi High Court held that there must be physical contact having an undertone of sexual nature to constitute ‘sexual harassment’ under the POSH Act. It opined that an altercation in the context of unwelcoming environment prevailing at the workplace is not a case of sexual harassment.1
• In another instance, the Kerala High Court held that the act or behavior must be connected with sexual harassment including allegations of promise, threat or an offensive or hostile work environment towards female employees. A solitary allegation of intemperate language against a female employee in a report does not constitute an offence under the POSH Act.

Workplace

• The Delhi High Court upheld the decision of the employer to terminate the employment of the accused in line with the recommendations of the Internal Committee (“IC”), where the accused was alleged to have sexually harassed a female colleague during an outstation visit for work.
• The Bombay High Court pointed out that the definition of ‘workplace’ is inclusive and deliberately kept wide by the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovoked for.

Aggrieved Woman

The Act defines an “aggrieved woman” as a woman of any age, whether employed or not, who has been subjected to sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer or a visitor who feels sexually harassed at any workplace can claim protection under POSH Law. To ensure the above definition applies without restriction at the workplace, the definition of an “employee” under the Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract workers, coworkers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

Duties of employers

POSH Law mandates every employer to:

• Provide a safe working environment, which shall include safety from persons coming to the workplace;
• Display the penal consequences of workplace sexual harassment, and the order constituting the IC, at any conspicuous place at the workplace;
• Conduct training programs to create awareness and sensitization among employees at all levels (i.e., managers and non-managers). Given that the spirit of the above provision in awareness, a practical reading of the POSH Law would require that attendance be made mandatory, and human resources (HR) teams should see to it that any unjustifiable absence is rectified and the absentee employee is made to attend such awareness programs immediately. The preferred mode of training is through online webinars, at least once a quarter, though it is recommended that employers, wherever feasible, conduct at east one workshop in person in a calendar year, over and above the quarterly webinar, in order to demonstrate the practical aspects of POSH Law at the workplace;
• Conduct orientation programs for the members of the IC;
• Provide necessary facilities for the members of the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC; and,
• Monitor the timely submission of the reports by the IC and assist in any manner required to enable the aggrieved woman to secure justice under the IPC.

It also requires the employer to arrange for the following under the Rules:

• Publish the POSH Law related policies over the company intranet and/or services rules, which shall include the contact details and names of the IC members;
• Carry out capacity building and skills development programs for IC members; and,
• Use modules published by the state governments to generate awareness amongst employees and may involve collaborations with urban local bodies to promote dialogue on sexual harassment, including its prevention, prohibition, and redressal.

As a best practice, it is also beneficial that companies put up POSH Law related posters in conspicuous places in the workplace about what constitutes sexual harassment, and the composition and coordinates IC members against the overlying intent of ensuring a safe workplace. Since the scope of POSH Law extends beyond employees, putting up the POSH Law related posters at the company entrance, reception, and meeting or conference rooms would be a great way to deliver the message to customers, consultants, and general visitors to the company premises.

Filing of a complaint with the IC

• The Rajasthan High Court held that the aggrieved woman can file a complaint with the IC without having to submit the complaint in person. The complaint could be sent to the IC through another person or by any other media, the main point being that it should be received by the IC.
• The Delhi High Court held that merely because the petitioner has an alternate remedy to file the given case before another forum, it would not act as a constitutional bar for the Court to adjudicate upon the matter. It also held that the findings of IC should not be ignored on vague and general grounds.

Forming the IC

• The Delhi High Court has opined that the appointment of external member of the IC should be in strict compliance with the POSH Act and the rules thereunder. Accordingly, enquiry proceedings conducted by an IC that is not properly constituted as per the law, may be treated as invalid.
• In another matter before the Rajasthan High Court, it was held that the external member need not necessarily have legal background or knowledge in the aspects of sexual harassment against women. Having experience in the social work is sufficient for being a valid member of the IC.
• The Bombay High Court held that an IC which does not have at least two members (who are either dedicated to the cause of women or have experience in social work or have legal knowledge), would be illegal and contrary to the provisions of the POSH Act. In that judgement, the court also re-emphasized that it is employer’s responsibility to constitute proper IC.

IC Powers

• The Delhi High Court held that the IC could extend the time limit for filing a complaint by another 3 months, i.e. up to six months from the date the incident has taken place, by recording reasons in writing, if it is satisfied that circumstances prevented the complainant filing of complaint earlier.
• In another case, it was clarified that the petitioner has the right to approach IC for immediate protection that may be required and that the IC is empowered to grant interim relief, if it deems fit.
• The Delhi High Court has clarified that the IC is empowered to enforce the attendance of any person as per the provisions of the POSH Act.
• The Bombay High Court held that where the inquiry has been conducted by the IC after giving adequate opportunity to all the parties and it has reached a conclusion, then merely because two views are possible, the court is not expected to re-appreciate the evidence and come to a different conclusion than the one which has been arrived at by the ICC.

Conducting the inquiry proceedings

• It was ruled that the inquiry proceedings should be fair and impartial. If there is any allegation of bias against any member of the IC, the inquiry proceedings should be stayed or put on hold until the disciplinary authority takes a decision. If the disciplinary authority believes that the allegation of bias is true, then it would invalidate the proceedings, a new committee would be formed and proceedings would need to start afresh.
• The Madras High Court set territorial jurisdiction for conducting the inquiry proceedings – it ruled that the inquiry proceedings should be conducted within 500 kms of the place of the incident. In that case, the Hon’ble Judge opined that requiring the victim to travel more than 500 kms to attend the inquiry proceedings would itself constitute harassment!
• It was held that the inquiry as per the POSH Act is not a preliminary inquiry but instead a full-fledged enquiry, which needs to be done in the same manner as is done to prove misconduct in disciplinary proceedings. The court mandated the IC to follow principles of natural justice and give fair opportunity to the respondent to defend himself.
• The Delhi High Court pointed out that strict rules of evidence are not required to be followed in inquiry proceedings and that the IC can adopt its own procedure in conformity with the principles of natural justice and especially in a case of sexual harassment.
• In another matter before Rajasthan High Court, it was observed that the POSH Act and the rules enable a three-member team to conduct the inquiry so long as the Presiding Officer is present. Therefore, the inquiry report does not stand vitiated unless it is shown that there were less than 3 members who conducted the inquiry.

Employers’ rights and territorial jurisdiction of the courts

• The Patna High Court held that the disciplinary authority can dismiss an employee from the services once the sexual harassment charges are proven.
• The Gauhati High Court held that the court which shall have the territorial jurisdiction to hear the matter of sexual harassment shall be the place where the act has occurred. Accordingly, if the harassment occurred in Kolkata while the parties were travelling for office work, the court in Kolkata shall have the jurisdiction even if the workplace of the offender is in Guwahati.

Procedure for resolving claims in a timely manner

The Act has laid down specific timelines for all claims arising under the POSH Law, ranging from the receipt of the claim, due inquiry, testimony and evidence collection, the adjudication of the claim and its final resolution and implementation, and the possibility of appeals on specific issues. The IC has also been empowered to refer claims to the local police authorities should a claim attract the provisions of the IPC.

Specifically, on the timelines, the below procedure is outlined under the POSH Law:

• Filing of the complaint — the aggrieved woman is required to file the complaint with the IC, in writing, within three months from the date of the alleged incident of sexual harassment, or three months from the date of the last alleged incident of sexual harassment, if there’s a series of incidents. The IC, at its sole discretion, is empowered to grant extensions up to three additional months if the circumstances are deemed justified. Further, should the aggrieved woman have any physical or mental incapacity, including death, owing to which she is unable to file the complaint, her legal heir, coworker, relative, friend, or a person with knowledge of the incident or such other person prescribed by the Rules is permitted to make the complaint on behalf of the aggrieved woman. While anonymous complaints are not given recognition under POSH law, many organizations allow filing of anonymous complaints, thereby acknowledging that it could be embarrassing for an aggrieved woman to disclose her identity while lodging the complaint. However, at all times, the IC must ensure that any claim is adjudicated in accordance with the principles of natural justice.
• Completion of the inquiry — All complaints submitted to the IC must be adjudicated and the recommendations finalized by the IC within 90 days of the receipt of the complaint.
• Submission of report — The IC must submit the report within 10 days of completion of the inquiry to the employer. Further, if the parties to the incident so desire, the report can be made available to such parties.
• Implementation of recommendations — The employer must implement the recommendations shared as part of the report prepared by the IC within 60 days of receipt of such recommendations by the employer.
• Appeals — All appeals under the Act must take place within 90 days of the recommendations being formulated on specific issues only, such as (a) no sanctions/sanctions of misconduct or deductions of wages; (b) false/malicious complaints or false witnesses or forged documents; (c) penalty for contravening the non-disclosure guidelines of the Act; or (d) non-implementation of recommendations.

False or malicious complaints

During the inquiry process laid out above, should the IC conclude that (1) the allegation against the respondent is malicious; (2) the aggrieved woman or any other person making the complaint has made the complaint knowing it to be false; or (3) the aggrieved woman or any other person making the complaint has produced any forged or misleading document, then the IC may recommend to the employer to take action against the woman or the person who has made the complaint. However, a mere in- ability to substantiate a complaint or provide adequate proof need not attract action against the complainant as being malicious or false.

Further, should the IC conclude that any witness has given false evidence or produced any forged or misleading document, it may recommend to the employer of the witness to take action against the witness.

Conciliation process

The POSH Law also provides for conciliation between the interested parties in its provisions. This option is commonly seen as an attempt by the legislature to ensure the aggrieved woman and the respondent are able to settle the incident(s) of alleged sexual harassment in an amicable manner. On a practical level, such conciliatory efforts are ordinarily adopted when the complaint of sexual harassment is centered around a misunderstanding, rather than an egregiousness error of the respondent.

On the conciliation process itself, the IC, may, before initiating an inquiry and at the request of the aggrieved woman, take steps to settle the matter between her and the respondent through conciliation. However, no monetary settlement shall be made as a basis of the conciliation.

Interim relief

The POSH Law has also delved into empowering the IC to grant interim reliefs during the pendency of an inquiry. The purpose behind this approach, and if one were to carefully see the timelines for an inquiry mentioned above, it usually takes between three to six months for the entire matter to resolve itself. However, the aggrieved woman may have to be in contact or work with the respondent during this time and this can be very disturbing for the aggrieved woman. To prevent a hostile work environment, the IC is empowered, at the written request of the complainant, to recommend any of the following interim reliefs during the inquiry: (1) transfer the complainant or respondent to any other workplace; (2) grant leave to the aggrieved woman for up to three months in addition to her entitled leave; (3) restrain the respondent from reporting on the work performance or writing any confidential report in relation to the aggrieved woman; or (4) restrain the respondent from supervising academic activities of the aggrieved woman, should the aggrieved woman be a part of an educational institution.

Sanctions under POSH Law

Contravention of the provisions of the POSH Law, including failure to constitute the IC, will expose the employer to a fine that may extend to INR 50,000 (approx. US$750). For subsequent offenses, there are higher fines and sanctions. However, what is pertinent to note under the POSH Law is that any offense committed thereunder shall be non-cognizable.

Though the penalty per se may appear trivial, organizations run the risk of having their business licenses and registrations cancelled for continuing non-compliance. Additionally, if a court takes cognizance of an offense under the POSH Law, and there is a higher punishment under another legislation (in force at the time) for such offense, the court can take due cognizance of such higher punishment while awarding the punishment.

Reporting requirements under POSH Law

It’s mandatory for the IC to prepare, in each calendar year, an annual report and submit it to the employer. The report should incorporate the following:

• Number of complaints of sexual harassment received in the year;
• Number of complaints disposed of during the year;
• Number of cases pending for more than 90 days;
• Nature of action(s) taken by the employer; and,
• Number of workshops or awareness programs conducted against sexual harassment.

The annual report should be pre- pared by the IC who shall forward it to the employer and the local labor district officer. There is also an obligation under the Act for the employer to include the above POSH Law related annual report as part of its overall annual company report. Where such overall annual company report is not required, the employer will notify the number of cases to the local labor district officer. Failure to submit the annual report will invite the same penalties as the failure to constitute the IC does.