Prevention of Sexual Harassment Act is a legislation enacted by The Government of India in 2013 and implementation of PoSH Act has been a significant step towards safe and inclusive environment at workplace. But there are still some challenges that emerge during its implementation at workplace. This blog seeks to give an insight on the challenges faced by organizations, such as legal difficulties, different perception of employees, unfair reporting mechanisms and representation and the need for training programs.
KEYWORDS: sexual harassment, gender equality, women, workplace, virtual workplace
In recent years, harassment with women at the workplace, be it whether physically or verbally, is very common in India. Moreover COVID-19 pandemic has presented unique challenges in implementing the PoSH Act at virtual workplaces.
After legally implementing PoSH Act, there has been a growing recognition of the importance of creating safe and inclusive work environments for employees. There was and is a tremendous rise before and after COVID time period as we can see that there is a 27% rise in number of reported cases in FY 2021-22.
An active approach towards workplace safety ensures employees that you care about their well-being and take their security seriously and being accountable to the employees brings retention of employees in the company. Encouraging the employees to identify the issues and work collectively with them to address issues increases the chances of a safe and dynamic workplace which often leads to increase in productivity of the company. Also, there should be awareness about mandatory constituting Internal Complaints Committee (ICC).
Earlier all cases of sexual harassment at workplace were disposed by saying that this particular act Committed doesn’t come within the purview of sexual harassment and there was no clear understanding of what and what not constitutes sexual harassment at workplace. We often associate female being bothered by a male (usually the boss) who either says inappropriate comments or creates uncomfortable situation in office and this why Government of India passed a women centric Act-The Sexual Harassment of Women at Workplace (Prohibition, Prevention and Redressal) Act, 2013 to prevent sexual harassment and create a safe and secure work environment. On the other hand we should also neglect that there are cases in which both men and women find the loopholes exploit the Act.
CHALLENGES FACED IN IMPLEMENTING THE ACT
Every Act has its own challenges with implementation and The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has no exception to that. Companies often face difficulties when it comes to effectively implementing and enforcing the guidelines of the act. These challenges could be legal difficulties, cultural barriers, organizational resistance or financial issues, etc. It is essential to understand these challenges to come up with effective strategies for overcoming them and creating a safe and inclusive workplace for all. To ensure that the legislation provides the greatest possible advantages, a number of significant challenges must be dealt with:
1. Fear of Retaliation: One of the challenges in implementing the PoSH act at the workplace is fear of retaliation by the accused. Many individuals hesitate to report incidents of harassment A study conducted by the Indian Bar Association (IBA) found that only 69% of victims of sexual harassment file a formal complaint due to concerns about potential consequences, such as negative impact on career growth, social stigma or even job loss.
2. Gender Neutrality: While the PoSH Act is women centric and is subject to exploitation, it is important to make the act gender neutral aspect as well as men and individuals from the LGBTQIA+ community can also be victims of sexual harassment, but they often face additional challenges in reporting incidents due to societal biases and stereotypes. There needs to be a framework which keeps anonymity of the victims which leads to better implementation of the Act. We can see that 51% of 527 people in Bangalore (silicon valley of India) had been sexually harassed but many of the people didn’t report cases due to India’s social beliefs.
3. Industry Disparities: India is still a developing country which also leads to a fact that there are various informal industries with unorganised workforce such as agriculture, construction, domestic works etc., face greater challenges in implementing the PoSH Act. According to Indian Economic survey 2021-22, there were 43.19 crore people in informal and unorganised sector in 2019-20. Lack of awareness, limited resources and lack of infrastructure make it harder to implement PoSH compliance for preventing and addressing sexual harassment in these sectors.
4. Lack of Awareness: Another challenges to successful implementation of the PoSH Act is the lack of awareness among employees and employers. Many individuals are unaware of their rights, the procedures for reporting incidents, and the consequences of sexual harassment. A survey conducted revealed that only 8% of respondents were aware of the PoSH policy prior to 2021. The act also places a duty on the employer to organize workshops and awareness programs at regular intervals for sensitizing the employees with the provisions of the Act. This exercise is a legal mandate and failure to undertake it will result in a fine which may extend to Fifty Thousand rupees (₹50,000).
5. Unfair Representation: Another challenge is the unfair representation of members of Internal Complaints Committee (ICC) within the organisation. This can create obstacles in the implementation of the PoSH Act as it impacts the decision-making process and support structures for victims. A BCWI report highlighted that in India, women hold only 17% at the corporate executive level, thereby limiting their influence in creating a safe work environment. There are also issues like the accused may try to remove ICC member temporarily or the accused has representation in ICC and there would also be instances where employers above the designation of the ICC members.
6. Lack of Redressal Systems: An inadequate and ineffective redressal system is a major hurdle in the successful implementation of the PoSH Act. Many organizations lack internal complaint committees or fail to ensure their proper functioning because of lack of awareness. This discourages victims from reporting incidents as they think if the organisation is not supporting by setting up an ICC then the accused will not get appropriate action and can lead to ignorance. According to a survey only 97% of organizations were not aware about sexual harassment laws which could also mean that they do have an effective Internal Complaints Committee. Despite the fact that organisations with 10 or more employees need to establish an effective Internal Complaints Committee (ICC), still organisations do not comply with the rule.
7. Lack of Training: The members of ICC lack adequate training on sexual harassment prevention and the implementation of the PoSH Act is another challenge. Organizations often need to allocate a significant amount of money in comprehensive training programs to educate employees about their rights and responsibilities. Nowadays companies do not find it useful to invest any money in training of employees due to the shift of work for a higher salary. According to a report by Catalyst, only 31% of companies in India provide PoSH training to employees, highlighting the need for broader education initiatives. Training and awareness to employees by the organisation is a legal mandate and failure to undertake it will result in a fine which may extend to Fifty Thousand rupees (₹50,000).
8. Limited Recourse for the Informal Sector: According to a study released by Human Rights Watch, it explains in detail how the Act has not been effective in helping women working in the informal sector against sexual harrasment cases. The informal sector consist of a major portion of the workforce but it faces challenges in accessing justice under the PoSH Act. Workers in the informal sector often lack formal employment contracts, making it difficult for them to establish employer-employee relationships necessary for reporting incidents and they are most vulnerable to sexual harrasment. Additionally lack of awareness and limited legal support increase the difficulties faced by informal sector workers.
9. Role of Virtual Workplace: The COVID-19 pandemic presented the challenge of implementing the PoSH Act in the context of virtual work environments. Remote work arrangements can create limitations to reporting and addressing incidents of sexual harassment. The lack of physical presence and direct interaction may stop victim’s ability to seek support officially, making it essential to make changes in policies and redressal mechanisms according to the virtual workplace. We can also see that after the realisation of virtual workplace during Covid there has been a rise in remote or virtual Workplace and this will grow more with the digitalisation of the economy.
My opinion is that implementation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has been a great step as sexual harrasment has been legaly criminalized but every needs to be practically tested so that appropriate amendments could be made and I believe after COVID it's high time to make some changes with respect to the changing time. I would like to suggest some solutions or changes which could be adopted at company level like organizations can provide helplines or anonymous reporting channels to ensure confidentiality, creating a more safe, inclusive and supportive environment to encourage victims to report incidents, change is cyber laws so that sexual harassment at workplace could also be prevented, spreading awareness to informal sector workers that they can also approach Local Complaints Committee (LCC), which must be constituted in every district by the State Government or local police or the National Commission for Women (NCW), a more inclusive and fair representation of members in ICC, more strict laws on establishing ICC, etc. These changes need to be implemented because victims would leave the organisation rather than choose to report sexual harassment and this leads to decreased productivity of the company as there is no retention of employees.
FREQUENTLY ASKED QUESTIONS (FAQS)
1) What is PoSH Act?
Ø The PoSH Act means The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which is for preventing and addressing sexual harassment of women at the workplace.
2) Are there challenges in reporting for sexual harassment complaints?
Ø Yes, some common challenges include fear from the accused, lack of trust in ICC, lack of awareness and unable to keep complaints confidential.
3) Can we overcome the challenges of implementing the PoSH Act?
Ø Yes, organisation can overcome challenges by fair and transparent mechanism, awareness programs, establishing Internal Complaints Committee (ICC) and regularly reviewing rules and regulations.
4) Is it mandatory to establish an ICC?
Ø Yes, as written in Chapter III of the act, it mandated every employer must establish an Internal Complaints Committee (ICC) at each office or branch that had 10 or more employees.
5) Are there any other reporting mechanism available for victims?
Ø Yes, they can also approach Local Complaints Committee (LCC), which must be constituted in every district by the State Government or local police or the National Commission for Women (NCW).
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AUTHOR – Vedant Singla