INTRODUCTION:

The formulation and passing of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) marked the culmination of a prolonged and arduous struggle waged by various women's rights groups across India. This act, while offering hope for many, carries the weight of a painful reminder in the story of Bhanwari Devi. Devi, tragically denied justice for her own workplace harassment, serves as a poignant symbol of the struggles countless women have faced. The adoption of the Vishakha guidelines, subsequently formalized by the POSH Act, stands as a solitary achievement amid the grim narrative of her victimization, which extended beyond her assailants to the inadequacies of the legal system.

The enactment of the POSH Act was not merely a legal milestone. The Act emphasized the importance of fostering safe, respectful, and inclusive work environments where individuals could thrive without fear of harassment or discrimination. It sought to institutionalize mechanisms for prevention, prohibition, and redressal of sexual harassment, thereby ushering in a new era of accountability and empowerment in the workplace.

The POSH Act imposes a critical obligation on employers, regardless of their sector or organizational structure, to establish an Internal Complaints Committee (ICC) if they employ ten or more workers at their workplace, as stipulated in Section 6 of the POSH Act. This committee serves as a dedicated platform for addressing complaints related to sexual harassment in the workplace, ensuring a safe and respectful work environment for all employees.

In cases where a workplace operates from multiple locations, the POSH Act mandates the formation of separate ICCs at each of these locations to effectively address complaints at the grassroots level. This decentralized approach is intended to allow localized resolution of issues while upholding the principles of fairness and accountability.

However, recognizing the diversity of workplaces and the varying scales of operations, the POSH Act also extends provisions for situations where an employer engages fewer than ten workers and thus may not have constituted an ICC. In such instances, or if a complaint of sexual harassment is directed against the employer itself, the Act empowers aggrieved women to seek recourse through the Local Complaints Committee (LCC)typically headed by the District Magistrate, Additional District Magistrate, Collector, or Deputy Collector.

METHODOLOGY:

This research article draws on the collective experience of the authors and their team who have dedicated the past decade to implementing the POSH Act across various organizations. Their diverse roles include:

Employee awareness trainers: Delivering POSH training sessions to employees at various organizational levels.

External members of Internal Complaints Committees (ICCs): Serving on ICCs in different organizations, providing impartial guidance and oversight during complaint investigations.

Through these roles, the authors have gained firsthand insights into the practical application, challenges, and impact of the POSH Act in diverse workplace settings. The observations and analysis presented in this article are informed by this extensive experience, supplemented by a review of relevant academic literature and reports on workplace sexual harassment.

This qualitative approach allows for a nuanced understanding of the POSH Act's implementation and its effectiveness in addressing workplace sexual harassment.

DISCUSSION:

Impact of POSH:

The POSH Act catalyzed a seismic shift in societal consciousness, spurring conversations and advocacy around the pernicious issue of workplace sexual harassment. By endowing female employees with formal channels for redressal, the POSH Act emboldened them to assert their rights and demand justice, thereby fostering an environment conducive to their professional flourishing. The mandated formation of Internal Complaints Committees (ICCs) and submission of annual reports by organizations not only allows them methodically investigate and adjudicate complaints but also increases accountability and transparency. The Act's imposition of penalties and sanctions against perpetrators served as a potent deterrent, emphasizing the importance of ethical conduct and mutual respect in professional environments.

Through our collective experience, it is evident that organizations that prioritize raising awareness about the POSH Act and handle complaints with sensitivity significantly contribute to fostering a positive work culture. The leadership within these organizations plays a pivotal role in carefully selecting Internal Complaints Committee (ICC) members who are adequately trained to address complaints and ensure that employees grasp the intricacies of the Act. Consequently, there has been a notable increase in the number of women reporting incidents within these organizations.

The presence of a well-trained ICC, which handles cases with sensitivity while adhering to the Act's guidelines and maintaining confidentiality, has bolstered the confidence of other women to step forward. Moreover, organizational leaders have empowered the ICC as a quasi-judicial body, allowing it to operate independently and take prompt action on its recommendations.

Top of Form

In organizations where compliance is merely superficial, there is a notable absence of complaints, or if they arise, they are handled ineffectively, signaling a reluctance to address workplace culture. Larger, well-established organizations with structured systems tend to have active and functional ICCs perceived as institutions imparting justice. Conversely, medium and small owner-driven organizations often operate based on the owner's discretion rather than established systems. Very small owner-driven enterprises and many government offices often have dysfunctional ICCs, where biased and untrained members hinder effective complaint resolution, affecting women adversely. (Dhingra, 2022)

Overall, the POSH Act offers organizations a significant opportunity to leverage its legal framework for creating safer, gender-sensitive, and inclusive environments. However, inherent complexities and human biases pose challenges, as it is impossible to anticipate every circumstance, and individuals inevitably bring their own life experiences and perspectives into play.

Beyond the Mandate: Navigating Grey Areas and Complexities:

While the POSH Act represents a significant step forward, addressing its limitations requires acknowledging and navigating complex situations that fall within its grey areas.

Display of information: There is a considerable emphasis on the display of information about sexual harassment in prominent areas within organizations, including the names and contact details of the Internal Complaints (IC) Committee members. However, this requirement has sometimes been misinterpreted, with an educational institution fulfilling it merely by putting up an A4 size paper printout labeled "sexual harassment complaints box" as the sole reference to the POSH Act. In the legal case of Smt Biyot Projna Tripathy v. Government of Orissa (W.P. (C) No (PIL) 33000 of 2022), heard by the High Court of Orissa Bench at Cuttack on 15 September 2023, the petitioner sought the enforcement of Section 19(b) of the Sexual Harassment of Women at Workplace Act, 2013. Recent directives from the Ministry of Women and Child Development (MWCD) and the judgment of the Hon'ble High Court of Odisha advocates the installation of billboards highlighting the penal consequences of sexual harassment, alongside IC Committee details. Additionally, the court has mandated the inclusion of toll-free and dedicated phone numbers on these billboards, ensuring streamlined reporting avenues for harassment incidents. In the light of these developments, organizations are urged to move beyond superficial displays and embrace robust mechanisms for raising awareness and supporting victims of sexual harassment effectively.

Nuances of consent: ICC members often grapple with cases involving ambiguous consent, particularly in scenarios of "morning guilt" or "retrospective discomfort" where individuals may reassess their past actions or interactions in light of changing perceptions or societal norms. In one such instance, an office party involving a subordinate woman and her male boss resulted in a complaint of inappropriate touching a week later. Despite CCTV footage showing consensual dancing and hugging, the power dynamics and the woman's discomfort ultimately led to action against the boss, highlighting the challenges of defining and assessing consent in such situations.

Misuse and Malicious Complaints: While acknowledging the positive intent behind the Act, it is crucial to recognize the potential for misuse. Cases of "affairs gone bad" leading to complaints raise questions of intent and malice. In one such instance, the allegation centered on feelings of mental harassment, with the complainant citing instances where her senior called her outside of regular hours to inquire about work deadlines. The complaint was directed to the HR department. In another case, a complaint of sexual harassment was filed against a superior for touching the complainant's shoulder and hand during work-related interactions. Upon investigation, it was discovered that the complainant habitually wore earphones, likely listening to music, which made it difficult for her to hear when her name was called out, necessitating physical gestures like tapping her shoulder for attention. The superior, adhering to office policy, intervened when he observed the complainant using personal email during work hours. When she resisted expanding the screen that she had minimized, he inadvertently touching her hand when he attempted to assist. The complaint seemed to arise from resentment rather than genuine harassment. The complainant was required to submit a written apology to her superior, and as recommended by the IC committee, her two increments were withheld.

Under-Reporting and the Role of Support: The reluctance of some women to report necessitates a focus on comprehensive employee training. It was observed that a victim who was going through sexual harassment at workplace preferred quitting the job instead of reporting her ordeal to the IC. She was meeting a psychologist and no amount of counselling could get her to file a complaint. Lingering taboos and victim-blaming narratives have engendered a climate of fear and reticence, discouraging survivors from reporting incidents and accessing support services. Hershcovis et al. (2021) highlighted the phenomenon of network silence, wherein the lack of consequences for perpetrators and support for victims perpetuates the cycle of sexual harassment, contributing to a toxic culture. Numerous research articles, including studies by Dionisi et al. (2012), Merkin and Shah (2014), and Jyotimala (2019), consistently highlight the detrimental effects of sexual harassment on various aspects of workplace well-being. Specifically, these studies emphasize the negative impact of sexual harassment on job satisfaction, turnover intentions, absenteeism, and overall job performance (Kausar et al, 2013). Sensitizing employees to recognize and report harassment is vital. Building trust through robust confidentiality measures and ensuring the sensitivity and competence of ICC members are equally important. A sensitive ICC, bosses and colleagues can go a long way by playing active supporters and as witnesses. An active by-stander is a crucial link who can nip the situation from taking an ugly turn and may even be that right witness the ICC is looking for corroborating the allegations levelled. It is important to give faith to women that even if there is no evidence or witness, leave it to the ICC to establish the truth rather than being scared that you may not be able to support your complaint in the absence of both.

Breach of confidentiality: Despite the presence of confidentiality clauses, breaches are not uncommon, with details of complaints, complainants, and perpetrators often circulating through informal office channels. For instance, in one distressing case, a written apology from the respondent was shared by the complainant on Instagram post-resolution, trivializing the seriousness of the issue. The misuse of grapevines by individuals is a common phenomenon, leading to media trials even in well-known cases. Moreover, discussing ongoing cases during coffee breaks despite reminders is a prevalent practice. This breach often influences witnesses, negatively impacting their testimony and training. ICC members may themselves breach confidentiality to gain favor from seniors. As part of company policy, strict actions by the IC committee should be enforced to address such breaches and uphold the integrity of the confidentiality measures in place. As per Rule 13 of the POSH Rules 2013, the employer shall recover a sum of INR 5000 as penalty from the person breaching confidentiality. Ethical organizations may provide isolated rooms for ICC inquiries or even consider hiring external spaces, although cost concerns may arise in the long term.

Trivializing complaints: Many companies are reporting ‘zero posh complaints’ in their annual reports citing workplace environments free from sexual harassment. Recent research conducted by Vincent et al. (2020) revealed a that individuals often hesitate to categorize sexually inappropriate behavior as sexual harassment. This reluctance stems from the stigma and vulnerability associated with being identified as a victim of sexual harassment. Consequently, many individuals may downplay or overlook instances of sexual misconduct, contributing to a culture of ignorance surrounding such experiences. Therefore, low complaints may not mean that companies have commendable work cultures but it could be because they are not doing enough work to spread awareness about the law(Gandhi and Thakur, 2023) The legal ramifications of POSH annual reporting are significant, potentially resulting in penalties, reputational harm, and legal disputes. Furthermore, the practice of dismissing complaints as trivial or seeking quick solutions to maintain "zero complaint" reports undermines the Act's goals. In one such instance, the Internal Complaints committee repeatedly inquired about the complainant's desired outcome, despite the possibility that a comprehensive investigation could lead to exoneration of the accused party. In the same case, the accused individual was prepared to apologize without disputing the allegations, aiming to swiftly resolve the matter. These situations pose challenges in interpreting intentions and ensuring fair processes for all involved parties.

Gender exclusivity: The Act's narrow focus on women as victims of sexual harassment inadvertently marginalizes male and gender-nonconforming individuals, accentuating the imperative for an inclusive legal framework. A male employee experienced ongoing harassment from his female boss and felt certain that the members of the Internal Complaints Committee (ICC) would not support him, as they held director-level positions similar to his harasser. Additionally, the employee believed that even if he wanted to appeal the decision, the structure of the POSH Act would not allow for it, creating a significant barrier to filing a complaint. The potential repercussions on his mental health under such circumstances are profound and easily understandable. A common question faced by employee awareness trainers is regarding the gender exclusivity of the Act. The crime against different gender cannot be ignored even if the statistics show relatively lower incidents as compared to harassment of women (Karra, 2022; Gupta and Kurien, 2021). The growing demand to include all genders in the Act reflects the need for comprehensive protection against sexual harassment (Sharan, 2023, Mehta, 2021)). There is a need to draw insights from international best practices and legal frameworks and adopt gender-neutral language to ensure comprehensive protection against sexual harassment for all individuals.

Limited Scope: Predominantly tailored for formal sectors, the Act overlooks the vulnerabilities of informal workers, accentuating the urgency of extending its protective ambit to encompass marginalized segments. This includes the lowest-skilled workforce, often served by Local Complaints Committees (LCCs). If these workers, who may lack education, are unaware of whom to approach, the Act's purpose is defeated. Improved implementation, along with culturally sensitive campaigns tailored to specific industries, regions, and demographics, is essential for raising awareness about the Act's provisions and support systems. Collaboration with diverse media channels and community organizations can amplify the message and reach wider audiences. Government bodies, Non-Government Organizations (NGOs), and self-help groups can serve as catalysts for change by advocating for the extension of protective measures and supporting marginalized workers in accessing their rights under the Act. It is crucial to recognize that addressing workplace harassment is deeply intertwined with broader cultural dynamics, particularly those rooted in patriarchal structures. As such, effecting meaningful change requires a concerted effort towards cultural transformation. While the POSH Act serves as a powerful tool in this regard, it is important to acknowledge that progress may be gradual, emphasizing the need for persistence and sustained advocacy efforts.

Challenges in Training sessions: The importance of employee awareness training sessions cannot be overstated, yet in some organizations, they are treated merely as a checkbox to be ticked off. Post covid, some organizations have started opting for online training sessions. Conducting these sessions online presents its own set of challenges, particularly in ensuring that participants truly grasp the material. One notable observation is that participants frequently answer a crucial True/False question incorrectly: "The complaint regarding sexual harassment can be made to HR or the Internal Complaints (IC) Committee” This discrepancy raises concerns about the level of attention and comprehension during the training sessions. The relevance of this question cannot be understated, as it directly pertains to the proper channels for reporting and addressing instances of sexual harassment in the workplace. The fact that participants consistently answer it incorrectly suggests a gap in understanding or retention of vital information. To address this issue, organizations must reassess their training methodologies and explore innovative approaches to enhance participant engagement and comprehension. Incorporating activities such as role-plays and participative case handling can facilitate deeper understanding and retention of vital information.

Furthermore, organizations should prioritize the importance of the Prevention of Sexual Harassment (POSH) Act by allocating higher budgets for effective training. Conducting training in small batches and utilizing various interactive methods can significantly enhance the effectiveness of the sessions, ensuring that employees are equipped with the knowledge and skills necessary to create a respectful and harassment-free workplace.

CONCLUSION:

While the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act) stands as a significant milestone in addressing workplace sexual harassment, there remain notable challenges and areas for improvement. The Act's enactment symbolizes a victory for advocates of women's rights and represents a critical step towards fostering safe and inclusive work environments.

However, the Act's effectiveness is hindered by limitations and complexities, including gender exclusivity, limited scope, breaches of confidentiality, and challenges in training sessions. These issues emphasize the need for ongoing efforts to enhance awareness, strengthen implementation, and promote cultural transformation within workplaces.

Addressing these challenges requires a multifaceted approach, including comprehensive employee trainings, legislative amendments, improved accessibility for marginalized workers, and greater collaboration among government bodies, NGOs, and community organizations. By prioritizing the importance of the POSH Act and adopting innovative strategies, organizations can create environments where individuals feel empowered to report incidents of harassment and access support services without fear of retaliation or stigma.

To address workplace harassment effectively and hold individuals accountable, it is crucial to understand how legal rules, cultural influences, and company policies interact. By joining forces and staying committed, everyone involved can build workplaces where every employee is treated with dignity, respect, and equality.References

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Received on 18.02.2024 Modified on 08.04.2024

Int. J. Ad. Social Sciences. 2024; 12(2):47-52.

DOI: 10.52711/2454-2679.2024.00009