Non-Compliance of Sexual Harassment of Women at Workplace

The objective of the POSH Act, 2013

Seeking undue favors is a misuse of a position of power, though its a common scenario in the corporate world. The situation turns ugly the nature of favor is sexual and the victim is a female. Often, the fear of termination or unnecessary work pressure act as a weapon in the hands of the man in power. The POSH Act, 2013 is enacted to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto. Whereas, sexual harassment results in violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under Article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business which includes a right to a safe environment free from sexual harassment.

Applicability and scope of the Act

This act is applicable to the whole of India. This act protects only women and is not gender-neutral legislation and protects only women. Therefore, the safeguards under this act are not applicable to ‘men victims’.

The act talks about ‘Aggrieved Woman’ in relation to a workplace, the woman of any age, whether employed or not, who alleges to have been subjected to any act of sexual harassment. Given that the definition does not necessitate the woman to be an employee, even a customer/ client who may be sexually harassed at a workplace can claim protection under the Act. The Act further stipulates that a woman shall not be subjected to sexual harassment at her workplace. Accordingly, it may be noted that in order for a woman to claim protection under the Act, the incident of sexual harassment should have taken place at the ‘workplace’.

The Act applies to both the organized and unorganized sectors in India. It inter alia, applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying out commercial, vocational, educational, entertainment, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals and also applies to a dwelling place or a house.

What is Sexual Harassment?

The Act in its Section 2(n), defines sexual harassment. Sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication), namely:

• Physical contact and advances, or

• A demand or request for sexual favors, or

• Making sexually colored remarks, or

• Showing pornography, or

Any other unwelcome physical, verbal, non-verbal conduct of sexual nature Section 3 (2) of the Act further elaborates that if any of the following circumstances occurs or is present in relation to or connected with any act or behavior of sexual harassment among other circumstances, it may amount to sexual harassment:

• Implied or explicit promise of preferential treatment in her employment, or

• The implied or explicit threat of detrimental treatment in her employment, or

• The implied or explicit threat about her present or future employment status, or

• Interference with her work or creating an intimidating or offensive or hostile work environment for her, or

• Humiliating treatment likely to affect her health or safety

Who is an aggrieved woman according to the Act?

According to the Act [Section 2(a)], aggrieved woman means, “ In relation to a workplace, a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent. In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling or house.”

What is the workplace according to the Act?

Workplace includes [Section 2(o)]:

• Any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate Government or the local authority or a Government company or a corporation or a cooperative society.

• Any private sector organization or a private venture, undertaking, enterprise, institution, establishment, society, trust, non-governmental organization, unit or service provider carrying on commercial, professional, vocational, educational, environmental, industrial, health services or financial activities including production, supply, sales, distribution or service.

• Hospital or nursing homes

• Any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating to it.

• Any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such a journey.

• A dwelling or a house

What are the duties of the employer?

As per Section 19 of the Act, every employer shall:

• Provide a safe working environment at the workplace which shall include safety from the persons coming into contact at the workplace.

• Display at any conspicuous place in the workplace, the penal consequences of sexual harassment and the order constituting the Internal Committee Constitution (ICC).

• Organize workshops and awareness programs at regular intervals for sensitizing the employees with the Act.

• Organize orientation programs for the members of the ICC.

• Provide necessary facilities to the ICC or the LCC (Lower Committee Constitution) for dealing with the complaint and conducting an inquiry.

• Assist in securing the attendance of respondents and witnesses before the ICC or the LCC.

• Make available such information to the ICC or the LCC with regard to the complaint.

• Provide assistance to the woman if she chooses to file a complaint under IPC or any other law.

• Cause to initiate action under the IPC or any other law against the perpetrator or if the aggrieved woman so desires, where the perpetrator is not an employee, in the workplace at which the incident of sexual harassment took place.

• Treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct.

• Monitor the timely submission of reports by the ICC.

Punishment and Compensation

The Act prescribes the following punishments that may be imposed by an employer on an employee for indulging in an act of sexual harassment:

1. The punishment prescribed under the service rules of the organization;

2. If the organization does not have service rules, disciplinary action including a written apology, warning, reprimand, censure, withholding of promotion, withholding of pay rise or increments, terminating the respondent from service, undergoing a counseling session, or carrying out community service; and

3. Deduction of compensation payable to the aggrieved woman from the wages of the respondent.

The Act also envisages the payment of compensation to the aggrieved woman. The compensation payable shall be determined based on:

1. The mental trauma, pain, suffering, and emotional distress caused to the aggrieved employee;

2. The loss in career opportunity due to the incident of sexual harassment;

3. Medical expenses incurred by the victim for physical/ psychiatric treatment;

4. The income and status of the alleged perpetrator; and

5. Feasibility of such payment in a lump sum or in installments.

In the event that the respondent fails to pay the aforesaid sum, IC may forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer.

What is the penalty for non-compliance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

According to Section 26 (1) of the Act, if an employer fails to constitute an Internal Committee as per subsection (1) of Section 4 as provided under the act, or if the employer has not taken action under Section 13, 14 and 22 or if the employer has contravened or attempts to contravene or abets contravention of other provision of this Act, or does not comply with the requirements prescribed under the Act, a monetary penalty of up to INR 50,000 may be imposed.

What is the penalty for committing the same offense again under the Act?

As provided under Section 26 (2) of the Act, if an employer, after having been previously convicted of an offense punishable, repeats the same offense that could result in:

• Twice the punishment, which might have been imposed on a first conviction, subject to the punishment being maximum provided for the same offense;

Provided that in case a higher punishment is prescribed under any other law for the time being in force, tor the offense for which the accused is being prosecuted, the court shall take due cognizance of the same while awarding the punishment;

• Cancellation, of his license or withdrawal, or non-renewal, or approval, or cancellation of the registration, as the case may be, by the Government or local authority required for carrying on his business or activity.

Which Court has jurisdiction to try an offense punishable under this Act?

As provided under Section 27(2) of the Act “No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offense punishable under this Act”.

When will the Court take cognizance of the offense?

As provided under Section 27(1) of the Act “No court shall take cognizance of any offense punishable under this Act or any rules made thereunder, save on a complaint made by the aggrieved woman or any person authorised by the Internal Committee or Local Committee in this behalf”.

Examples of Conduct Amounting to Sexual Harassment

Whether an act or conduct would amount to ‘sexual harassment’ is dependent on the specifics of the act and the circumstances. The following is an indicative list of conduct that could be considered as sexual harassment:

1. Unwanted sexual advances or propositions;

2. Pestering for dates or receiving unwelcome sexual suggestions or invitations;

3. Offering employment benefits in exchange for sexual favors;

4. Leering;

5. Making sexual gestures;

6. Displaying sexually suggestive objects or pictures, cartoons, calendars or posters;

7. Making or using derogatory comments, comments about a person’s body or dress, slurs, epithets or sexually suggestive jokes;

8. Written communications of a sexual nature distributed in hard copy or via a computer network, suggestive or obscene letters, notes or invitations;

9. Physical conduct such as unwanted touching, assault, impeding or blocking movements;

10. Being forcibly kissed or hugged;

11. Having someone expose their private parts to you or repeatedly staring at a woman’s body parts that makes her uncomfortable;

12. Making or threatening retaliation after a negative response to sexual advances or for reporting or threatening to report sexual harassment;

13. Eve-teasing;

14. Sexually tinted remarks, whistling, staring, sexually slanted and obscene jokes, jokes causing or likely to cause awkwardness or embarrassment;

15. Subtle innuendos or open taunting regarding perfection, imperfection or characteristics of the physical appearance of a person’s body or shape;

16. Gender-based insults and/or sexist remarks;

17. Displaying pornographic or other sexually offensive or derogatory material;

18. Forcible invitations for dates;

19. Forcible physical touch or physical assault or molestation;

20. Suggesting or implying that failure to accept a request for a date or sexual favors would adversely affect the individual in respect to performance evaluation or promotion;

21. Explicitly or implicitly suggesting sexual favors in return for hiring, compensation, promotion, retention decision, relocation, or allocation of job/responsibility/work;

22. Any act or conduct by a person in authority and belonging to one sex which denies or would deny equal opportunity in pursuit of career development or otherwise making the environment at the workplace hostile or intimidating to a person belonging to the other sex, only on the ground of such individual providing or refusing sexual favors;

23. Physical confinement against one’s will and any other act likely to violate one’s privacy.

FAQs –

What is the time limit for an aggrieved woman to give a complaint?

Any aggrieved women may make in writing a complaint of sexual harassment at the workplace to the Internal committee/ Local Committee within 3 months from the date of the incident or the date of the last incident in case of a series of the incident [Section 9(1)].

Can the time limit of 3 months be extended?

The Internal Committee and the Local Committee can extend the time limit not exceeding another 3 months if it is satisfied that the circumstances were such which prevented the woman from filing the complaint within the said period [Section 9(1)].

Can someone else file a complaint under the Act?

If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death, her legal heirs or such other person as may be prescribed may do so. [Section 9(2) of the Act]

What is the nature of offense under the Act?

Every offense under this Act is non-cognizable.