All about the Prevention of Sexual Harassment (POSH) Act 2023, India

Have you heard about the ‘MeToo movement‘? It is a social media movement where one can open up against sexual harassment online by attaching the hashtag: #Metoo. It was founded in 2006. From high-profile actresses and workplace workers to university students have used the #metoo hashtag to speak out against sexual harassment on social media and seek justice.

During the #metoo phase, workplace sexual harassment was highlighted on social media. Many male and female employees have been facing visual, verbal, and physical harassment in the workplace throughout the years.

The Prevention of Sexual Harassment Act (POSH), 2023 can be a one-stop solution for preventing and redressing sexual harassment complaints at the workplace.

What is the Prevention of Sexual Harassment (POSH) Act?

The POSH Act combines a set of laws, policies, and procedures effective against sexual harassment, unwelcome acts, or behaviour, that make employees uncomfortable in the workplace. The Ministry for Women and Child Development implemented the Act across India in 2013.

The main aim of the enactment of the Act is to create a safe and secure working environment for office employees and to address complaints of sexual harassment.

The POSH Act is a law for both the employers and employees in every organization as it creates a safe environment, so employees feel welcome and secure at the workplace.

In addition, through the POSH Act, employers can provide training programs to raise awareness about sexual harassment and processes to prevent it. According to the Act, employers should have the right strategy and stay vigilant against harassment in the workplace.

Why was the POSH Act established?

The Prevention of Sexual Harassment Act was first introduced by the Government of India in 2013 by addressing the Vishakha Guidelines.

This Act defines the rules, regulations, and actions against any type of sexual harassment like unwelcoming behaviour, sexual remarks, showing pornography, and physical, verbal, or non-verbal conduct of sexual nature.

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How did the POSH Act come into existence?

We will be discussing the details of how the POSH Act came into existence and the latest update on the Act, which happened in January 2023:

➔ Need for the Act

Before the POSH policy, in India, there was no such Act that dealt with the issues of sexual harassment in the workplace. As a result, continuous sexual harassment, non-comfortable communication, visual and mental torture were increasing gradually at the workplace. It not only violates fundamental rights but also breaches the dignity of women.

➔ Vishakha Guidelines (1997)

Following the case of Vishakha and Others vs. the State of Rajasthan in 1997, the Supreme Court of India laid down guidelines for the prevention of sexual harassment in the workplace. The guidelines served as an interim measure until the enactment of formal legislation.

➔ Enactment of POSH Act (2013)

Remembering the Vishakha guideline, the POSH Act was enacted on December 9, 2013, and came into force on April 23, 2013. The Act has the ultimate aim of addressing the issue of sexual harassment at workplaces and creating a safe and secure environment for employees.

Key Provisions of the Posh Act

The Act provides proper guidelines for preventing sexual harassment in the workplace. Additionally, it helps employers to conduct awareness programs and sensitization training. It is applicable to both private and public organizations with at least ten employees.

➔ Impact and Compliance

The POSH Act has led to increased awareness about sexual harassment in the workplace and has prompted many organizations to put in place policies, committees, and mechanisms for addressing and preventing such harassment. Since it is an Act enacted by the Government of India, compliance with the Act is mandatory for both public and private sector organizations.

➔ Amendments and Updates

After its introduction in 2013, the Act has been updated to strengthen its provisions. One notable amendment was undertaken in 2016, which covered men and transgender individuals under the POSH Act. These amendments have been made to ensure that the Act remains relevant and effective in addressing the changing dynamics and needs of the individuals.

POSH Update in January 2023

After the 2016 update, the POSH committee released the latest update in January 2023. As per the changes, a committee needs to investigate the sexual harassment case, and,

1. If the committee can’t complete the inquiry process in 90 days as per the updates under Section 11(4) of the PoSH Act, 2013, the inquiry will not be rejected as invalid.
2. The 90-day timeline cannot be made mandatory.

This change reduced the chances of dropping cases in scenarios where the investigation was taking more than 90 days.

POSH Compliance Steps

There are five specific steps to be followed to ensure that you remain compliant with the Law:

1. Draft an organizational policy on the prevention of sexual harassment.
2. Ensure that any violations are dealt with strict actions to reflect the organizational POSH policy.
3. Constitute an internal committee for handling cases of sexual harassment.
4. Create awareness among employees on their rights and responsibilities towards creating a safe environment.
5. Submit an annual report on POSH compliance.

Significance of the POSH Act

In the modern world, companies are progressive, where women and transgender individuals are equally welcome in the workplace. So, it is essential to impose a POSH policy in the workplace to avoid any kind of sexual or mental harassment against them and create a safe and secure working environment.

The significant aspects of the POSH policy include:

➔ Familiarity with the Law

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 was enacted in 2013 by the government of India, where any organization with a minimum of 10 or more employees can impose the policy in the workplace. So, acquittance with the POSH Act and making your employees familiar with it is one of the right ways to maintain a safer work environment.

➔ Prevention of Sexual Harassment

The Policy helps your organization in creating a safe and secure workplace by preventing sexual harassment at the workplace. It creates a friendly environment where employers and employees feel positive, respected, and empowered. It creates awareness and training to protect against any kind of unfriendly behaviour.

➔ Safe and Respectful Work Environment

POSH policy acknowledges equality. Due to the presence of the Act women and transgender individuals will get equal opportunities and fair treatment, irrespective of their gender, and can work freely in the workplace, thus increasing positivity and making a safe and respectful work environment for all genders.

➔ Improving Productivity

A workplace free from sexual harassment fosters a sense of safety and well-being among employees. When employees feel secure and respected, they are more likely to engage and stay motivated to perform well. The POSH Act ensures an engaging work environment where employees can concentrate better on their tasks when they are not distracted or stressed by concerns about harassment.

➔ Protection for Employees

The Act ensures the prevention of sexual harassment and protection of employees within the workplace.  It helps in the creation of an internal mechanism such as the POSH committee. This committee will be responsible for providing training to the employees about POSH guidelines and helping them report harassment and seek assistance without fear of reprisal.

➔ Remedies and Redressal

Sexual harassment in the office environment destroys the mental strength of employees. They start being afraid of coming to the office. It not only hampers employee wellness but also destroys the workplace’s reputation.

The POSH Act outlines the remedies available to victims of sexual harassment. These include the disciplinary action to be taken against the harasser, compensation for damages, and other forms of relief designed to control the situation.

Duties of Employer according to POSH Act

The POSH Act or the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, talks about the guidelines and strategies for taking action against workplace violence and sexual harassment.

It also defines a to-do list for employers to avoid harassment against women and transgender in the workplace.

Here are some of the key duties of employers according to the POSH Act:

➔ Develop a Sexual Harassment Policy

Employers should promote, develop, and implement a sexual harassment policy prohibiting sexual harassment in the workplace. They have to keep in mind that every employee should be aware of the policy and that immediate action is taken against the harassment.

➔ Constitute an Internal Complaints Committee (ICC)

If the organization has more than 10 employees along with the employer, the management has to constitute an ICC at each office or branch of the organization. The ICC is responsible for receiving, investigating, and addressing complaints of sexual harassment.

▸ Main Rules for the Internal Complaints Committee

• The committee members should be extremely methodical about the case.
• All documents must be in written format for future reference.
• In the documents, the perspective of each IC member should be mentioned.
• ICC members should be up-to-date and trained with proper knowledge.
• They should not have any personal involvement with any case.
• In the committee, there should be people from numerous departments.

➔ Provide a Safe Environment

During onboarding, employers must ensure employees’ safe and secure working environment, so that they feel safe, and secure and stay positive in the workplace. Organizations must remain gender unbiased at all times.

➔ Conduct Awareness Programs

Conducting an awareness program is one of the vital responsibilities every employer should have. Quarterly training or workshops about the POSH policy for the new joiner can prevent sexual harassment in the workplace. Proper workplace training is the best way to alert employees about the POSH Act and make a safe working environment.

➔ Assist the ICC

Along with conducting the awareness program, employers are also responsible for providing necessary support and facilities to the ICC for conducting inquiries into complaints. They must also assist the ICC in implementing its recommendations.

On the other hand, employers can retaliate against employees who have filed harassment cases.

➔ Preserve Confidentiality

One more essential task that the employers have to attend is ensuring the confidentiality of the complainant, the accused, and the proceedings of the sexual harassment case.

➔ Cooperate with Authorities

Employers must cooperate with any government authority conducting an inquiry into allegations of sexual harassment.

Additionally, if the ICC says that the harassment has occurred, the employer must take appropriate action to prevent its recurrence and provide remedies to the victim.

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How do you file a POSH Complaint?

The POSH policy results in a legal obligation of the organization to prevent sexual harassment in the office environment. This Act defines numerous aspects of sexual harassment as well as the action to be taken in case of an incident.

When an organization experiences any kind of faulty behaviour or receives complaints against anyone, the POSH policy ensures the creation of an Internal Complaint Committee (ICC) at each workplace, preventing further harassment.

Let’s discuss the provisions under the POSH ACT 2013 regarding the registration of complaints.

➔ Provisions under the POSH ACT, 2013 for registering complaints:

1. Physical contact or unfriendly touches
2. Sexual requests or demands
3. Showing Pornography
4. Unwarranted threats
5. Verbal, physical, and non-verbal behaviour of sexual nature.

➔ Procedure for Complaint under the Act

Every employee should know the process of filing against sexual harassment under the POSH Act. Here is the procedure for filing complaints:

1. The victim should complain within 3 months from the date of the incident.
2. ICC may initiate the investigation once the complaint is issued.
3. The investigation should end within 90 days of the initiation date.
4. Once the inquiry is done, the report has to be submitted to the employer within 10 days.
5. In case there is a serious incident that happens, the ICC can forward the case to the police.
6. After the report submission, the organization takes further action on the basis of the report.

➔ Escalation of the POSH Act

1. If the victim refuses to complain about the sexual harassment, the respondent can file the response within 10 days along with written evidence and related documents supporting their claim.
2. The POSH Act must be filed within 3 months of the incident, but the committee can extend the time duration if they provide valid written proof of the delay.
3. If the victim is incapable of filing the complaint due to mental illness, a third person can continue the reporting process on their behalf.
4. If the internal committee is unable to solve the case, the case can be filed further in the District Committee (DC).
5. If the case fails in DC too, it can be filed in BENCH in the respective District Court.
6. In some cases, if the victim is dissatisfied with the judgment from the district court, they can file in the High Court as well.

How does the POSH Act react when anyone files wrong complaints of sexual harassment?

Such complaints are called ‘Malicious POSH complaints’. Committees often witness and investigate wrong complaints of sexual harassment. Such malicious POSH complaints can happen for several reasons, such as:

• Revenge on fellow employees
• Destroying the reputation of the company
• Gaining financial benefits
• Gaining publicity
• Due to blackmail from higher authority.

In such scenarios, by following section 14 of the POSH policy, the committee informs the employers that the filing of complaints of sexual harassment is malicious or false. The employers can take the right action against the false complaints, by following the provisions of the service rules. In this case, the victim can be punished with a ₹50000 penalty and 3 years of imprisonment.

Can the Organization’s POSH Policy be gender-neutral?

The organization’s POSH policy can be gender-neutral and inclusive. A gender-neutral POSH policy ensures that all employees, regardless of their gender identity or expression, are protected from sexual harassment.

This policy emphasizes a commitment to maintaining a safe and respectful workplace for everyone. It prohibits any form of unwelcoming or inappropriate behaviour, including but not limited to unwanted advances, comments, or actions of a sexual nature. It encourages employees to report any incidents of sexual harassment without fear of retaliation and outlines the procedures for filing complaints and conducting impartial investigations.

The policy also underscores the organization’s commitment to providing support and remedies to victims while maintaining confidentiality throughout the process. In essence, a gender-neutral POSH policy aligns with principles of equality and inclusivity and ensures that all individuals within the organization are protected from sexual harassment.