Brief guide to the law against sexual harassment at workplace, clarifying some misconceptions
Divya Malcolm | March 18, 2020
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH”) was enacted in 2013. Seven years since then, fears of misuse are rife. Are the fears legitimate? It is perceived that women are dangerously armed with a one-sided law. Men feel oppressed as there is no specific forum for redressal of their grievances. This article, therefore, examines the framework of the statute, checks and balances against misuse, more so in the light of the Madras high court’s recent judgement.
POSH: Why only for women?
(a) Limited representation of women in position of power:
In the United States, only 24 women headed the 2018 Fortune 500 companies. Less than 4% of the companies listed on the National Stock Exchange have women as their chief executives & managing directors. With very few women in positions of power, possibility of abuse at their behest is not likely to be rampant.
(b) Inherent risks:
The educated urban population tends to view POSH through a very narrow prism. Many equate it with personal experiences and prejudices. In remoter areas, such prejudices are deep rooted. Certain sectors are inherently unsafe. It is for this reason that social activists and NGOs, enraged by the gang-rape of a social worker in Rajasthan, filed a class action before the Supreme Court of India. The social worker was gang-raped for preventing a child marriage! The incident exposed the risks faced by women at work. Justices Sujata Manohar and BN Kirpal delivered the landmark judgment, ‘Vishaka & Ors. V/s. State of Rajasthan’, on August 13, 1997. Till then, despite having ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), no law for prevention of sexual harassment had existed. POSH is based on the said judgment.
Scheme of POSH:
Any aggrieved woman who has suffered sexual harassment at workplace (including WhatsApp), can prefer a complaint, either per the Internal Complaints Committee (ICC) constituted by the employer, or the Local Complaints Committee (LCC) constituted through the efforts of the local government. If the allegations are proved, ICC can recommend action against the respondent in accordance with the service rules. In the absence of the service rules, ICC can make suitable recommendations including payment of compensation by the respondent to the aggrieved woman, written apology, warning, reprimand, censure, withholding or promotion/increments, termination of service, counselling session, community service.
Sexual harassment at workplace is usually more insidious than overt violent acts of sexual assault. It is either in the nature of (a) quid pro quo, or (b) hostile work environment. Gaurav Jain V/s. Hindustan Latex Family Planning Trust Ors. decided by the hon’ble High Court of Delhi on January 7, 2015 has all the elements of a typical case of sexual harassment. Hence, it should be noted. The respondent threatened juniors with detrimental consequences if they refused to yield to his requests such as spending the night in his hotel room during an official trip. By the same token he offered great promises for conceding to his requests. Within his organization, he was known to make denigrating remarks and jokes in poor taste. Ultimately, on the complaint of a woman subordinate to the ICC, his employment was terminated.
In correct perspective, POSH not only ensures a safe environment for women but a result-oriented work culture. It creates a level playing field as much for men as for women since favouritism of any kind demoralises the whole of the workforce: men or women. Besides, perverts are a threat to civil society. POSH is, therefore, not a battle of sexes but the coming together of men and women against sexual perverts.
Sadly, POSH has also been invoked in cases where a relationship has gone sour. In the United States, in November last year, McDonald introduced a code of conduct. Accordingly, at McDonald, US, employees who have a direct or indirect reporting relationship to each other are prohibited from dating or having a sexual relationship. Some regard this as moral policing as many have met their partners or spouses at workplace. It remains a price to pay.
Legislative enactments are guarded against misuse either by virtue of specific provisions or through judicial interpretation. Some of these checks and balances against abuse of POSH are discussed below.
Checks and Balances against Abuse:
(a) Section 14 of POSH read with Rule 9:
Punishment for false and malicious complaint is stipulated under Section 14, read with Rule 9 of POSH. Accordingly, if malicious intent on the part of the aggrieved woman is established, then the ICC can recommend the same action against her as it would have recommended against the respondent, had the allegations been true.
Also, ICC is bound to follow rules of natural justice. No decision can be taken without giving the respondent an opportunity to defend himself. A recent judgement passed by the Madras High Court is a good case in the point (Re: Union of India & Others V/s. Rema Srinivasan Iyengar). The aggrieved woman’s initial complaint was about the respondent’s high handedness and arrogant conduct without any mention of sexual harassment. Subsequently, she preferred another complaint repeatedly using the expression ‘sexual harassment’ without giving any specific details. The matter reached the high court. The following observations of the Madras high court may be noted:
“Every office has to maintain a certain decorum and women employees cannot be allowed to go scot free without completing their assignments. The Administrative Head or the Chief has every right to extract work and he or she has his or her own discretion and prerogatives. If a woman employee is discriminated against due to her inefficiency or for any other official reasons, the recourse for her is not the one taken by this complainant. Though the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is intended to have an equal standing for women in the work place and to have a cordial workplace in which their dignity and self respect are protected, it cannot be allowed to be misused by women to harass some one with an exaggerated or non- existent allegations.”
(b) Formation of a Disciplinary Committee:
A number of complaints that land up before the ICC are in relation to unwelcome comments, unpalatable jokes on WhatsApp, chauvinistic or sexist conduct rather than sexual overtures. Women invoke ICC as it appears to be the obvious forum for issues involving lack of decorum. However, a high-level Disciplinary Complaints Committee (DCC) may be better suited to hear such complaints. An alternative forum may deter women approaching ICC under POSH. The brief of POSH is exclusively sexual harassment; other disciplinary issues can be agitated at the proposed DCC.
POSH also fails to address harassment by women; the type that resulted in the death of Dr. Payal Tadvi. Strangely, there is a law against ragging in colleges but none at the workplace. Corporate bullying is not an alien concept. Men too feel short-changed as they have absolutely no forum for redressal of their grievances: sexual or otherwise. The DCC can play a crucial role in bringing about a sense of equality and a system of appraisal based on merit.
(c) Proactive approach of the human resources department:
Any harassment at the workplace tells on the HR department. Almost all instances of harassment amongst colleagues can be nipped in the bud by a proactive HR. POSH provides for gender awareness and sensitivity workshops; the ambit can be enlarged by including issues which retard organizational efficiency.
In a larger context, struggle for an ideal workplace, free of discrimination based on gender, religion, place of birth, groupism, corporate bullying is an ongoing one. An employer who establishes a high professional work ethic shall reap the benefit of greater efficiency. It is he, or she, who stands to gain the most.
Divya Malcolm is a Partner at Kochhar & Co., Advocates and Legal Consultants. The views expressed in this article are her own and not that of the firm.
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