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The PoSH Act: Bridging the Gap or Widening the Divide?

INTRODUCTION

In recent years, the global discourse on gender equality has reached unprecedented levels, with movements advocating for equal rights, opportunities, and safety for all genders. India, like many other like-minded states, has tried to address this problem by taking steps in furtherance. In 2013, India enacted new legislation known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, also known as the PoSH Act, which was aimed at preventing and addressing sexual harassment in the workplace so that women can feel safe and secure.

Sexual harassment is defined in Section 2 of the act, which also defines all terms related to the provision. It includes unwanted physical contact, sexual favor demands, sexually charged remarks, pornographic displays, and other physical, verbal, or nonverbal acts of a sexual nature.[1]

Additionally, it lists five situations that, if connected to the aforementioned acts, would constitute sexual harassment:

(i) Implied or explicit promises of preferential treatment in the workplace

(ii) Implied or explicit threats of unfavorable treatment in the workplace

(iii) Implied or explicit threats regarding current or future employment status

(iv) Interference with work or the creation of a hostile, offensive, or intimidating work environment

(v) Humiliating treatment likely to endanger health or safety.[2]

The PoSH Act outlines the formation of Internal Complaints Committees (ICCs), which are tasked with handling sexual harassment claims within organizations. It requires a methodical approach for filing, investigating, and resolving complaints in order to promote a harassment-free workplace. Concerns have been raised about the act's ability to offer equal protection and support to people of all genders given that it focuses primarily on cis-gendered women.

The PoSH Act outlines the formation of Internal Complaints Committees (ICCs), which are entrusted with handling sexual harassment complaints within organizations. It requires a methodical approach for filing, investigating, and resolving complaints in order to promote a harassment-free workplace. Concerns have been raised about the act's ability to offer equal protection and support to people of all genders given that it focuses primarily on cis-gendered women.

Gender identity covers a wide range, including transgender and gender non-conforming people who frequently encounter difficulties and experiences of harassment. Unfortunately, the PoSH Act does not specifically address their demands, depriving them of the legal protection and support they need to effectively combat workplace harassment. The act unintentionally reinforces societal stereotypes by excluding these people and undercuts efforts to foster an inclusive and equitable workplace.

Additionally, the PoSH Act's gender-specific approach may unintentionally reinforce conventional gender roles and binary distinctions. It perpetuates the idea that sexual harassment only affects cisgender women, ignoring the possibility that men and non-binary people may also be subjected to such violations.


Origin of the Act

Bhanwari Devi, a social worker with the Rajasthan government's Women's Development Project, was gang-raped in 1992 by five men when she attempted to stop the marriage of a one-year-old girl. The Indian judicial system failed to apprehend her. The suspects were accused of a lesser crime after being cleared of the rape charge. They were only had to spend 9 months in prison. She was attacked in her line of work, and both the state government and her company denied any wrongdoing.

Following this incident, there was a widespread public outcry, which opened the way for new rules protecting women from sexual harassment at work. Social activists petitioned the Supreme Court in a Public Interest Litigation (PIL) calling for employers to safeguard their female employees at all times and safer workplaces for women. In Vishakha v. State of Rajasthan[3] in 1997, the Supreme Court addressed this petition acknowledging the obvious inadequacies and came up with the Vishakha Guidelines.

With these rules, the Supreme Court mandated that every employer take the required precautions to safeguard the women who work for them from sexual harassment and to establish mechanisms for redress. India passed the POSH Act in 2013 to shield female employees from sexual harassment in both authorized and unauthorized workplaces.


Limitations of a Gender-Specific Approach

The PoSH Act has made strides against workplace harassment, but because of its gender-specific approach, there are questions about inclusivity and its ability to maintain inequality. The act ignores the experiences and vulnerabilities of people from all gender identities, including transgender and gender non-conforming people, by concentrating only on cisgender women. This exclusion not only undermines efforts to create an inclusive workplace but also reinforces prejudices and stereotypes within society.

It is important to first consider sexual harassment as a crime before discussing the gender neutrality of the POSH Act. The Indian Penal Code already has provisions for dealing with sexual harassment and insulting a woman's modesty under Sections 354, 354A, and 509.[4] However, none of these clauses addresses sexual harassment of a male person.

Similarly, there is no guidance under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act of 2013 on how an employer should handle sexual harassment of males. No woman shall be the target of sexual harassment at any place of employment, according to Section 3(1) of the Act.[5] Similar to Section 9, there is no mechanism for a male to bring a complaint over sexual harassment.

The law is biased towards women and this innate bias was in no way a bad thing, especially in light of the historical disadvantages faced by women. It is highly probable to claim that having legislation like this that are particular to gender has encouraged female labour participation and secured the protection of women's employment rights. Although it is true that today's views on gender and sexuality are less binary than they were when the Act was first conceived, it is recognizable. Additionally, a biased regulation like this undermines the concept of workplace equality by reinforcing the long-held stereotype of a male harasser and a female victim.

So, it is feasible to propose a gender-neutral regulation requiring employers to have appropriate procedures to deal with sexual harassment of both men and members of the LGBTQ+ community.

It is also noteworthy that the Act permits sexual harassment offenders to be either male or female, supporting the notion of a gender-neutral legal system. It would thus seem only reasonable to expand this impartial application to enable all workplace victims, male or female, to successfully speak out against harmful conditions and advance an inclusive environment.


Consequences of Neglecting Other Genders

Despite being one of the countries with one of the greatest rates of output development, the Indian labour market, unfortunately, paints a different picture with a number of seriously unfavourable aspects. It shows a declining rate of female involvement in the workforce across states. Given this situation, it is clear that the idea of gender equality in the workplace is in danger. We are all aware that gender equality is crucial for efficient economic growth. Gender equality and per capita GDP are positively correlated, according to the 2015 World Economic Forum Global Gender Gap Report[6].

Sexual harassment at work is one of the causes of gender imbalance in India's employment, as we shall discover if we try to get to the heart of the matter. While workplaces are meant to inspire confidence, some women experience abuse there. It jeopardizes every woman's opportunity to grow and violates her right to the opportunity to work and get equal compensation for equal labour. According to ILO research, sexual harassment is more likely to target young, financially independent, and single women. The days when women were expected to stay at home and take care of the household alone and be subservient to men are long gone. The number of educated women has increased with the times. There are increasingly more women working as physicians, attorneys, and other professionals.[7]

Additionally, women frequently don't disclose instances of workplace harassment out of concern that the harasser or the company would take action against them. Most people believe that speaking out against the harasser might result in social shame, embarrassment, and even more harassment. If the woman complains about a senior employee, these difficulties are exacerbated, raising the likelihood of animosity from co-workers or supervisors, a poor reference for potential employers, or even job termination. This archaic practice of "victim blaming and silencing" fosters an atmosphere in which the victim feels defeated, afraid, and suffers long after the terrible crime has taken place.

The Act says nothing about guarding against such reprisal. The list of activities that the employer may conduct while the investigation is ongoing is found in Section 12[5]. These include moving the offended woman, giving her leave for up to three months, or providing any other proposed remedy. However, it appears that there aren't any steps being taken to encourage a healthy workplace and protect the woman's career prospects in the event that she decides to stay at the same job after the occurrence. Although Section 19[6] of the Act outlines a lengthy number of obligations for employers, it does not include a duty to prevent stigmatization or harassment of complainants.

Employers must thus take considerable measures to establish an environment that encourages women to disclose any worrying incidents and promotes positive interactions once a complaint has been filed. Employers need to be made aware of these discussions and continue to educate the public about their zero-tolerance approach to harassment, shaming, and bullying. They can also help women go up the corporate ladder, which will foster an environment that seems approachable and relevant. The legislation has to be changed to incorporate anti-discrimination rules and assign employers the duty of seeing that these policies are upheld.


Conclusion: Recommendations for the PoSH Act

The fight against workplace harassment must put inclusivity and intersectionality first. All victims of harassment, regardless of their gender identity, would have access to legal protection, assistance, and avenues for recourse if the PoSH Act were amended to include transgender and gender non-conforming people. This inclusive strategy would encourage a workplace culture that honours and acknowledges the various experiences and vulnerabilities of people from all genders.

The legislation should also address the restrictions brought forth by its gender-specific wording and framing. The legislation can aid in the demolition of negative stereotypes and the challenging of gender norms by extending the term "sexual harassment" to include all genders and recognizing that anybody can be a victim. This shift in approach would encourage men and non-binary individuals to come forward and report instances of harassment, creating a more comprehensive and inclusive understanding of the issue.

Organizations must act proactively to foster an environment of respect and equality at work in addition to making legislative changes. To educate staff members about sexual harassment, encourage bystander intervention, and create an inclusive workplace, comprehensive training programs should be put into place. To safeguard the security and privacy of victims, organizations should emphasize a zero-tolerance approach to all types of harassment and discrimination, regardless of gender, and set up channels for anonymous reporting.

Additionally, cooperation and partnership between the government, institutions, civil society, and people are necessary to advance gender equality. To increase awareness, question established societal norms, and address the underlying causes of gender-based violence and discrimination, stakeholders must collaborate. This entails encouraging conversation, highlighting allyship, and including men as active participants in the fight against workplace harassment. We can only close the gender gap and establish workplaces that are truly egalitarian, secure, and inclusive by working together.

In conclusion, while the PoSH Act has been critical in combating workplace harassment, its gender-specific strategy has flaws that impede real gender equality. We can bridge the gender gap and move towards a society where all persons are valued, protected, and empowered by broadening the scope of the act, questioning gender conventions, and building inclusive working environments. We can create a future free of harassment and discrimination by working together to ensure equal opportunity and dignity for all people, regardless of gender identity.


REFERENCES [1] ‘Section Details’ (India Code) accessed 08 June 2023. [2] Munjal D, ‘Explained: What Is the POSH Act and Why Has the Supreme Court Flagged Lapses in Its Implementation?’ (The Hindu, 21 May 2023) accessed 08 June 2023. [3] Vishaka & Ors vs State Of Rajasthan & Ors (https://indiankanoon.org/doc/1031794/) [4] Indian Penal Code, 1860, ss. 354, 354A, 509. [5] The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Act 14 of 2013), s.3(1). [6] ‘Global Gender Gap Report 2015’ (World Economic Forum, 2015) accessed 09 June 2023. [7] ‘Ilo Declaration on Fundamental Principles and Rights at Work and Its ..’ (Declaration on Fundamental Principles and Rights at Work) accessed 09 June 2023.

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