Exploring Subtle Dimensions of Workplace Harassment: An In-depth Analysis of the POSH Act
ABSTRACT
This abstract presents an exhaustive analysis of the Prevention of Sexual Harassessment (POSH) Act. It encompasses critical examination and interpretation of various provisions under the Act, underscoring the approaches to prevention, prohibition and redressal mechanisms against sexual harassment at the workplace. The study demystifies complex legal jargon, ensuring that the legal provisions are comprehensible, thereby aiding organizations in understanding their obligations and responsibilities in compliance with the law. Notably, the study also discloses potential gaps associated with the Act's implementation procedures and offers recommendations for improvements. This detailed discourse aspires to stimulate informed discussions about workplace safety and gender equality, essential for productive and respectful work environments.
KEYWORDS: Unfair Harassment, Intimate Assault, Physical Harassment
INTRODUCTION In our rapidly evolving professional world, achieving inclusivity and safeguarding every individual's dignity at the workplace is a burgeoning challenge. Every organisation faces issues of harassment, though the severity and frequency vary. The solution lies in understanding the more subtle dimensions of workplace harassment and providing a robust policy structure to address it. This blog explores these nuances and delves into an in-depth analysis of India's Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly known as the POSH (Prevention of Sexual Harassment) Act. UNDERSTANDING WORKPLACE HARASSMENT Workplace harassment is a pervasive problem that can manifest in many ways – verbal, non-verbal, quid pro quo, physical, psychological, etc. Most harassment cases go unreported due to a lack of understanding of these subtle forms of harassment. [1]Encouraging open dialogue about inappropriate behaviour may help in recognizing and addressing these nuances. THE POSH ACT: AN OVERVIEW The POSH Act was legislated in response to the landmark 'Vishaka Guidelines' propounded by India's Supreme Court in 1997. It broadens our understanding of sexual harassment at the workplace beyond conventional notions. Sexual harassment, as defined by the POSH Act, includes unwelcome sexually determined behaviour, whether direct or implied. SUBTLE DIMENSIONS OF WORKPLACE HARASSMENT AS PER THE POSH ACT 1. Verbal and Non-Verbal Harassment: The Act recognises subtle instances of verbal and non-verbal harassment. Sporting sexually coloured remarks, making indecent sounds or gestures, and teasing can be considered sexual harassment under the POSH Act. 2. Electronic Harassment: In our digital age, the POSH Act recognises electronic harassment. The distribution of explicit content through digital mediums like emails, messages, social media etc., is considered harassment.
3. Work-related Harassment: Harassment may also manifest as decisions driven by sexual favours like promotions, demotions, transfer, etc. This form of harassment, known as quid pro quo, is recognised under the POSH Act. 4. Hostile Work Environment: Persistent harassment may lead to a hostile work environment, where an employee's performance is adversely affected. A hostile work environment is recognised as sexual harassment under POSH Act. REPORTING MECHANISM UNDER POSH ACT Any aggrieved woman, regardless of her position in the workplace, can complain about harassment under the POSH Act. The Act mandates every employer with ten or more employees to constitute an Internal Complaints Committee (ICC) for addressing such complaints. The Act also provides protections to prevent the retaliation against the complainant. CHALLENGES IN IMPLEMENTATION OF POSH ACT Despite the comprehensive provisions, the POSH Act's implementation presents hurdles. Confusion about what constitutes harassment, fear of retaliation and absence of an anonymous complaint system leads to underreporting. Often, even when the ICCs are in place, they lack the training required to address such complaints appropriately. THE WAY FORWARD: POSH ACT AND BEYOND Awareness about the law is the initial step towards promoting a harassment-free workplace. However, merely putting ICC in place is not sufficient. It requires proper training for the ICC members and sensitisation programs for employees regarding the intricacies of harassment. Additionally, employers should foster a culture of respect and equality, which transcends beyond legal compliance.
RECOGNITION OF SEXUAL HARASSMENT The POSH Act recognizes sexual harassment as any unwelcome sexual behavior that could range from physical contact, requests for sexual favors, making sexually coloured remarks to showing pornography against the will of a woman. [2]In addition, it also includes any other unwelcome behavior of sexual nature which may be verbal, textual, physical, graphic, electronic or by any other means. RESPONSIBILITIES UNDER THE POSH ACT The Act mandates every institution with 10 or more employees to assemble an Internal Complaints Committee (ICC) at all office branches. The ICC plays a crucial role in the complaints and redressal process under this Act. Employers also have the responsibility to raise awareness and sensitize their employees about sexual harassment. PROVISIONS FOR REDRESSAL The Act provides for a well-defined redressal mechanism. A woman subjected to harassment can lodge a complaint with the ICC within three months of the incident. The panel then undertakes an inquiry and submits a report with recommendations to the employer or the District Officer. PENALTIES AND PUNISHMENTS The POSH Act prescribes penalties for employers failing to comply with its provisions. Non-compliance could lead to a fine of up to INR 50,000 and repeated violations could result in higher penalties or cancellations of business license. The Act also deems false or malicious complaints and false evidence as punishable offenses. CHALLENGES IN IMPLEMENTATION Despite its well-intentioned provisions, the implementation of the POSH Act faces several challenges. These include insufficient awareness, lack of sensitivity, societal stigma, fear of backlash, and victim-shaming. Moreover, not all workplaces are compliant with the POSH guidelines in creating ICCs and disseminating information. SOLUTION
The POSH Act, aimed at protecting women from sexual harassment at the workplace, recognizes the nuances of such misdemeanors. It emphasizes the power dynamics and gender hegemony intrinsic to the corporate culture contributing to the creation of hostile work environments. The act's strength lies in its broad interpretation of 'workplace', encompassing every location related to work, including transportation provided by the employer. Vigilance and comprehension among employees about the Act and its nuances are imperative for its successful implementation. Importantly, it mandates organisations to form Internal Complaints Committees (ICCs) that are diverse and unbiased, ensuring a fair hearing and investigation. However, the POSH Act's effectiveness is often undermined by a lack of awareness and ingrained cultural stereotypes, frequently causing underreporting of such incidents. To overcome such shortcomings, an approach involving regular sensitization, workshops and the promotion of safe reporting mechanisms should be executed.
AUTHOR’S CONTENTION
The author contends that while the Prevention of Sexual Harassment (POSH) Act has made significant strides in safeguarding women's rights within workplaces in India, it has yet to fully address the subtler dimensions of workplace harassment. The author argues that the POSH Act's focus on overt sexual forms of harassment may inadvertently obscure subtler, but nonetheless harmful, instances of power-based harassment such as bullying, intimidation, and psychological abuse. The author points to the insufficient attention given to identify, define and address such behaviors within the Act, emphasizing on the dire need for an expansive interpretation and evolution of the act. The analysis implies that a broader understanding of harassment could help in the creation of more inclusive workplaces, by acknowledging diverse kinds of oppressive and inappropriate conduct.
REFERENCES [1] Sneha Mahawar et al. (2022) Posh act, 2013, iPleaders. Available at: https://blog.ipleaders.in/posh-act-2013/ (Accessed: 09 July 2023). [2] Nithya, R. (2023) POSH act 2013 protection of women from sexual harassment, Vakilsearch. Available at: https://vakilsearch.com/blog/posh-act-2013-protection-of-women-from-sexual-harassment/ (Accessed: 11 July 2023).
AUTHOR – Ankit Sagar