Sexual Harassment
at Workplace

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Yes, there is a law for sexual harassment at workplace in India. The law is called the Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013, in short, the POSH Act.

In 1997, the Supreme Court of India passed a landmark judgment in the case of Vishaka v. State of Rajasthan. In this case, the Supreme Court urged the Parliament to pass a law on sexual harassment at the workplace. Till the law was passed, the Supreme Court issued guidelines against sexual harassment of women at the workplace (popularly called, Vishakha Guidelines ). Finally, in 2013, the Parliament passed the POSH Act, which is based largely on the Vishakha Guidelines.

MEANING

The definition of sexual harassment under the POSH Act is almost the same as sexual harassment in general (see Sexual Harassment ). It means any kind of:

  1. Unwelcome physical contact and advances
  2. A demand or request for sexual favours
  3. Making sexually coloured remarks
  4. Showing pornography
  5. Verbal or non-verbal conduct of a sexual nature (all the above, in Section 2(n), POSH Act)
    Apart from the above generic sexual harassment, the POSH Act also includes specific workplace-related scenarios of sexual harassment, like:
  6. Promise of special treatment at work (like a promotion) in exchange for sexual favours
  7. Threat of harmful treatment at work (like threatening to stop your promotion) if you refuse sexual demands
  8. Threatening the woman about her job (that she will lose her job if she refuses sexual demands)
  9. Creating a hostile or uncomfortable work environment for the woman if she refuses sexual favours
  10. Insulting or humiliating the woman out of spite, if she refuses sexual favours

    The definition of sexual harassment under the POSH Act is very broad and open and includes all kinds of sexual harassments. For further examples of sexual harassment at the workplace, see "What You Should Know About Sexual Harassment".

    Practical tip: If you ever feel confused as to whether a specific action is sexual harassment or not, it most probably is. You must trust your instinct. Ask yourself, "Did this particular act make me feel uncomfortable?" If the answer is yes, then you know that it is sexual harassment. Remember, you don’t feel uncomfortable 24x7 and you don’t feel uncomfortable with all men.

A workplace has a very wide definition under the POSH Act (Section 2(o), POSH Act).
For the organized sector, workplace will mean:

  1. Office : This means your entire office building and not just the office space or floor on which your office is.
  2. Your entire office campus: (For example if you work in a company which has many buildings, a lawn, etc. in its office space, this entire space, and not just your office building is considered a workplace).
  3. Office transport : If your office provides transport like a bus or cab, this also becomes a workplace. If you take private/public transport, that will not count.
  4. Office accommodation : If your office provides you quarters or accommodation (like a guest house). If you are on an office trip, then the hotel where your office puts you up becomes a workplace.
  5. Eating and recreation space :Office canteen, mess, or any recreation area in the office is also workplace.
  6. Every place you visit for your work: For example;
    • Your office sends you to a client’s office: The client’s office + transport to and from the client’s office becomes a workplace.
    • You go out on fieldwork: Every place you visit + transport to and from becomes a workplace.
    • You are sent on a work trip: The hotel where your office puts you up + places you visit for meetings/work.

    For the unorganized sector, since there is no clear-cut office space, a workplace will mean any place where they carry out work. For example:

    1. For domestic help, every house she works in is her workplace.
    2. For women who run/work in cottage industries or small businesses at home, the house becomes the workplace.

    7. Practical tip: How to identify your workplace. Ask yourself if you go to this place for work. For example:

    • For a doctor – it can be the hospital, clinic, or patient’s house
    • For a lawyer – it can be the court and the office
    • For a corporate employee – it can be the office space + office transport, office accommodation, etc. (since corporates usually provide these facilities)
    • For a sportswoman – it can be the training institute, any place she visits to play matches, etc.
    • For a teacher – it can be the school where she teaches, any place she visits on school duty (like taking students for picnics), etc.
    • For a social worker/volunteer – it can be the NGO in which they work
    • For a student – it can be the college where she studies, any place she goes for lectures, competitions, college fests, etc.

Every “aggrieved woman” is protected under this Act (Section 2(a), POSH Act). An “aggrieved woman” is any woman who is:

  1. Employed by the employer (whether on a permanent or contract basis, or a temporary or daily wage basis does not matter)
  2. Is a consultant (for example, for professional services like doctors and lawyers, companies don’t employ them as employees on their rolls. They hire them as consultants)
  3. Is visiting a workplace for work though not employed there (for example, you go to an office for an interview or meeting)
  4. A volunteer/intern/trainee
  5. A female student

No, the harasser can be any male in the workplace. The POSH Act does not say anything about whether the harasser should be an employee. The place where the harassment takes place is important (i.e. it has to be the workplace). The harasser could also be someone who is just visiting the workplace.

COMPLAINT
  1. The “aggrieved woman” (for the meaning of aggrieved woman please see above).
  2. If the aggrieved woman cannot file (due to physical or mental incapacity) then her legal heir.
    This means that unless you are in a position where you cannot file the complaint, you have to file it yourself. Your family/friends cannot file on your behalf.

Under the POSH Act, the procedure given is (Section 9, POSH Act):

  1. How: The complaint should be in writing.
  2. Time: Should be filed within 3 months from the incident, or if it’s a series of incidences, then within 3 months from the latest incident. You can also file after 3 months but there should be a good justification for the delay.
  3. Where: File with Internal Complaints Committee or Local Complaints Committee (explained below)

Apart from the above, your workplace may have its own procedure (usually corporate and IT companies have their own Sexual Harassment Policy). Please check with the admin or HR department if there is a procedure.

Remember: Apart from filing under the POSH Act, you can also file a regular police complaint about sexual harassment under criminal law

Organised Sector: If your workplace has an Internal Complaints Committee (explained below), then with the committee. If it does not have one, then with the Local Complaints Committee(explained below).

Unorganised Sector: With the Local Complaints Committee, as unorganized sectors do not usually have an Internal Complaints Committee.

The POSH Act requires that every workplace with more than 10 employees (of any gender) must compulsorily constitute a committee to resolve cases of sexual harassment in the workplace. This is known as the internal Complaints Committee. If there are several branches or sub-divisional branches, the committee must be constituted at all the branches, if the branch has more than 10 employees. (Section 4, POSH Act)

The Internal Complaints Committee shall be nominated by the employer and consists of the following members (Section 4, POSH Act):

  • A senior woman employee of that office
  • Two other employees (male or female)
  • One member from NGO relating to sexual harassment issues.
  • Half of the Internal Complaints Committee Members should be women.
  • The term of the Internal Complaints Committee Members shall not exceed 3 years.

Under the POSH Act, the Government has to set up a Local Complaints Committee in every district, for sexual harassment at workplace complaints where:

  1. An establishment does not have an Internal Complaints Committee (because it has less than 10 employees)
  2. A complaint has to be filed against the owner of the establishment itself (this is because the members of Internal Complaints Committee are employees of the owner, and will not be able to act neutrally if the complaint is against the owner)

As per the Act, the employer is obligated to display the order constituting ICC at any conspicuous place in the workplace. However, if this is not done, then one can contact the employer/head of the department/human resource department to obtain information about the ICC.

For locating LCC or one of its members, you can do any of the following:

  • Contact the District Officer’s office
  • Contact the Women’s Helpline (toll-free thorugh181, 100 etc.) functioning in your district/State
  • Contact the State Commission for Women
  • Contact the State Department of Women and Child Development/department looking after women issues

Yes, a woman if she chooses to do so may both file the FIR with the police and complaint with the Complaints Committee simultaneously.

AFTER FILING COMPLAINT

On filing the complaint, the woman is given a choice of dealing with the issue through either conciliation or inquiry. Conciliation is the mode of solving the matter through an informal method. An inquiry is a formal method of solving the matter. Both methods are guided by the complaints committee.


Resolving Through Conciliation (Section 10, POSH ACT):

  1. On woman’s choice: At the request of the woman, the complaints committee can resolve the matter through conciliation. This is an informal method of resolution where the parties can come to an understanding to ensure the sexual harassment never happens again.
  2. Settlement Agreement: On resolving the matter through conciliation, the parties have to make a Settlement Agreement. This will contain the terms and conditions of their settlement – what the issue was, how it was resolved, what the offender will do/not do in the future.
  3. The complaints committee has to record the Settlement Agreement reached between both the parties. Both the parties will be provided with a copy of the Settlement Agreement.
  4. If the harasser breaks any of the terms of the Settlement Agreement, you can again file a complaint with the complaints committee. They will then conduct an inquiry on the violation of the Settlement Agreement.

    5. Remember: The offender cannot give any monetary compensation to the aggrieved woman for settlement. This provision is to discourage the belief that it is okay to harass as long as you can pay her and get done with it.

    Formal Inquiry (Section 11, POSH Act):

    If the parties are not willing to resolve the issue through conciliation, then the complaints committee will conduct a formal inquiry.

    1. Procedure: The complaints committee will examine both the parties. Both the parties are given an opportunity of being heard and presenting their case. They can also submit any documents or evidence to support their case.
    2. The inquiry should be completed within 90 days.
    3. Conclusion After completing the inquiry, the complaints committee will decide whether the harasser is guilty or not guilty. Based on the finding, the complaints committee will decide the course of action.
    4. Report The complaints committee will then make a report of their findings and the course of action that the employer should take.
    5. Forwarding Complaint to the Police However, if at the beginning of the inquiry itself the complaints committee thinks that the woman has a valid case, they have to directly forward the complaint to the police, instead of conducting an internal inquiry. This has to be done within 7 days. The police will then register a case against the accused under the relevant section of the Indian Penal Code(Sexual Harassment).

    Confidentiality- The entire proceedings of sexual harassment (whether through conciliation or formal inquiry), all details about the complainant, accused, settlement agreement/inquiry reports, etc. have to be kept confidential (by the complaint, accused, and the complaints committee).

PUNISHMENTS/RELIEFS

Unlike criminallaw , the POSH Act does not prescribe any fixed punishments for the harasser. If the complaints committee concludes that your harasser is guilty, then the committee itself will decide what action is to be taken. If your workplace has an anti-sexual harassment policy, your Internal Complaints Committee will follow it.

The complaints committee can prescribe any of the following punishments/reliefs (Section 13, POSH Act):

  1. Disciplinary action against the harasser- like, warning, withholding a promotion, prohibiting the harasser from going near the complainant, or even firing the harasser from service, etc.
  2. Monetary compensation to the victim- Compensation can be in a lump sum (one-time settlement) or in instalments (like monthly payment).

The amount of compensation is decided based on the following factors (Section 15, POSH Act):

  1. the mental trauma and emotional distress caused
  2. the career-opportunity loss caused due to the incident
  3. the income and financial status of the harasser
  4. whether the harasser can pay a lump sum or in instalments

If, after the inquiry, the complaints committee finds the harasser not guilty, it should give its reasons for the decision in the inquiry report. If found not guilty, no action will be taken against the accused.

What you can do: You can appeal against the committee’s findings. You have to file the appeal within 90 days of the findings, in the Metropolitan Magistrate or Judicial Magistrate (First Class) which has jurisdiction over the workplace. (Sections 18(2) and 27, POSH Act)

If any complaint under POSH Act is made dishonestly, or if the complainant submits any forged documents, it is considered a false complaint. In such a case, the complaints committee will recommend to the employer what action should be taken against the woman.

Remember: Your harasser will always try to use this argument as a defence or counter-attack. Until and unless you have filed a false complaint, you don’t need to worry. Mere failure to prove your case or provide sufficient evidence does not mean that your complaint is false or malicious.

FURTHER INFORMATION

If your workplace has more than 10 employees (of any gender), it has to establish an Internal Complaints Committee. If it has not done so, you can file a complaint with the Metropolitan Magistrate or Magistrate(First Class) against the employer. The court can fine the employer up to Rs.50,000, for a first-time offence. If the employer still does not establish the committee, the court can fine up to Rs.1 lakh and also cancel/suspend its registration.

You can file a complaint against the employer with the Metropolitan Magistrate or Magistrate(First Class). The court can fine the employer up to Rs.50,000. If the employer still fails to take action, the court can fine up to Rs.1 lakh and also cancel/suspend its registration.

The POSH Act puts certain duties on the employer. Some of these are:

  1. Provide a safe working environment
  2. Constitute an Internal Complaints Committee (if more than 10 employees of any gender)
  3. Have an anti-sexual harassment policy
  4. Display the punishment for violation of anti-sexual harassment policy at notable places (like the bulletin board)
  5. Organize workshops and awareness programs to create awareness among the employees about the POSH Act
  6. Help the woman if she chooses to file a police complaint under criminal law.
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Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)

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