Despite Prevention of Sexual Harassment In The Workplace Act, much more needs to be done to make women and even men feel safe at the workplace. Sensitivity during inquiries and misuse of the Act need to be looked into

By Shaan Katari Libby

The Prevention of Sexual Harassment in the Workplace, 2013, (POSH) Act was a landmark one meant to ease matters for working women. But in reality is the Act working? Does it need revision? At a recent seminar in Chennai, various companies and lawyers discussed POSH. These included Hyundai, Vivek & Co, several hospitals, Hindustan University, advocates Edwin S Raj, Tamizh Kumaran, Wilcy William and some from J Sagar Associates.

POSH came as a reaction to a spate of heinous crimes against women, and specifically after the case of Vishaka and Others v State of Rajasthan (1997). The case involved Bhanwari Devi, a social worker in Rajasthan who tried to stop child marriages. She was brutally raped by higher class landlords. The trial court proceeded to acquit the accused. The sheer injustice of this inspired Vishaka, a women’s rights group, to appeal to file a PIL in the Supreme Court. The outcome was a set of guidelines to be strictly observed in all workplaces until suitable legislation was enacted. POSH was meant to be the latter.

Some of the observations of the seminar are as follows:

• Best practice: To begin with, the companies felt that the best practice to implement in smaller companies (those with under 10 employees) which did not fall under the purview of this Act would be to put in place a committee, failing which the recourse would be the Local Complaints Committee or the LCC.
• Apprehensions tend to exist within small companies. Even when an Internal Complaints Committee (ICC) is in place, employees are reluctant to report sexual harassment. Women do not complain for fear of their future. People choose to simply leave the organisation instead of going through the process/scandal. This is a loss to the company and allows the perpetrator to go scot-free and commit another crime. Regular discussions on the subject, educating office personnel and posters on the same would help to ensure that potential aggressors as well as the victims are left in no doubt about their positions.
• In larger companies, it is a slightly different picture as POSH is being used with some success. As for awkwardness after an inquiry is completed, a change of department often helps. A clear written internal policy on sexual harassment in companies should be made and displayed/posted prominently. Regular workshops to make people aware and informed are important.
• Interestingly, many felt that women were often using this Act to harass men. The general feeling was that it was essential for the ICC to work hard to maintain neutrality. In some hospitals, the workforce is largely men with only 5-10 percent women. Despite women being in the minority in such sectors, the ICC should not bias itself towards the perceived victim. The stipulated 90 days for case resolution is generally thought to be realistic. Sixty days to implement is case-dependent, but it is a fact that therapy and counselling take a long time.
• Awareness/visibility of LCCs: In the absence of an ICC, when the woman does not wish to approach one, she can seek support from the LCC. However, there is a distinct lack of access to the elusive LCC. In fact, one often hunts for the local LCC without any luck; several lawyers confirmed this. One suggestion was that an RTI application be filed to find out exactly who and where the LCCs are.
• Education: As with most things, education is the key. Employees need to be familiarised with what constitutes harassment. In fact, it is clearly set out in the Act (Section 19(c)) that regular workshops should be held. Harassment is based on perception. What is offensive to one individual need not necessarily be offensive to another. Hence, the role of these interactive workshops is crucial to find common ground and improve understanding across the company in question.
• As regards rural communities, NGOs are working to spread awareness among them. Panchayats serve the function. However, awareness is lacking among them about their rights regarding sexual harassment. In this regard, the Bar Council of India had recently asked all colleges to send students into communities and schools to educate people about their fundamental rights and duties. This is an excellent idea, and perhaps the same could be done specifically for sexual harassment.
• Counselling: When an accused party is found guilty, counselling is a good way to change deviant behaviour. But it may be necessary even for the victim to cope with the stress or even for the accused when found not guilty of any wrongdoing. People in companies face numerous strains, and this causes an additional mental burden that has to be dealt with. Counselling will help them cope.
• Shortcomings: What are the possible shortcomings of the current law? It was felt that the ease of manipulation by malicious individuals (women) to suit ulterior motives is a major shortcoming. One repercussion is that genuine victims face difficulties as they too are viewed with suspicion.

Another weakness is that situations do not stay confidential. A clear method is required to ensure that those concerned take steps to maintain confidentiality during the inquiry process and not have judgements made before the report. Office gossip can make for a very unpleasant atmosphere during the pendency of the inquiry.

It is also generally felt that as the Act is geared only towards women, the recourse available for men needs to be improved upon if they have been found not guilty. Men feel they need some formal recourse too if they are sexually harassed…this too happens, albeit less often. Also, more clear-cut penalties need to be included in the POSH Act for women who act maliciously.

Sexual harassment is not something unique to this country. A recent BBC survey suggests that half of British women and one-fifth of men have been sexually harassed at the workplace/place of study. Sixty-three percent of these women did not report it, and 79 percent of the men. The reason is often embarrassment or that the harassment is couched in “jokes” or innuendos which leaves the victims uncomfortable and insecure. After the Harvey Weinstein allegations, the scale of the problem has been revealed via the #metoo movement.

The POSH Act is certainly a step in the right direction, and the Vishaka guidelines have been implemented sufficiently via this legislation. In India, it is certainly helping to raise awareness of this issue. Many companies have their ICCs and procedures in place.

The conversation, however, is far from over, and needs to continue for a long time to come for any real change to come about.

—The writer is Barrister-at-Law, Honourable Society of Lincoln’s Inn, UK, and a leading advocate in Chennai. With inputs by RK Padmanaban and Tarun

Lead: Women employees are often reluctant to report sexual harassment at the workplace/Photo: thebetterindia.com