Prevention of Sexual Harassment [PoSH] in 2018 – A new dawn

2017 has been a watershed year at least for sexual harassment in the corporate world; be it Hollywood, media, tech companies and businesses at large.   The #Metoo and #TimesUp campaign in late 2017 has brought much needed focus to the problem of rampant sexual harassment across the world

The #Metoo campaign also saw several women in India coming out and sharing their stories of sexual harassment forcing businesses to finally take notice of the same.  Though the Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 has been in force for last 4 years (apart from Vishakha guidelines being applicable for 16 prior years), the adoption of the law has been slow amongst businesses to say the least.

This law is amongst the first wherein the focus is upon behavioural change through periodic mandatory awareness programmes for sensitising employees so that they unknowingly do not indulge in unacceptable behaviour as well as at the same time making them aware about the adverse consequences of lodging false complaints.  It further also mandates skill building of Internal Complaints Committee (ICC) members since they carry the mantle of dispensing justice to both parties after following principles of natural justice.

A lot of people have a wrong belief that only if you touch a woman or talk to her inappropriately and deliberately, will it amount to sexual harassment.   Once during a hearing in the Supreme Court of India on being interrupted by a female Senior Counsel during arguments, a male Senior Counsel had joking commented that the interjections by the learned senior Counsel are always delightful; for which the female advocate has immediately objected to it being sexual coloured and the Hon’ble Court had observed that she may well be right.

What corporates fail to understand is that the entire focus of the law is towards prevention of sexual harassment of women at the workplace and despite all efforts to prevent it, in case any woman believes that she was sexual harassed, she can seek redressal from the businesses’ Internal Complaints Committee (ICC).   In case the business employs less than 10 workers, they don’t have to form an ICC and instead any complaint with respect to their employees would be hear by the Local Complaints Committee (LCC) to be formed in every district by government authorities.  The ICC/LCC shall make its recommendation only after giving both parties a fair opportunity to present their case.

BUSINESSES’ OBLIGATIONS UNDER LAW

Formulation of an Anti Sexual Harassment Policy

Display posters within premises highlighting the penal consequences

Create an Internal Complaints Committee (ICC) at each location and display their contact details

Sensitisation and training of employees and ICC members

Provide administrative support and monitor timely submission of annual report by ICC

Make Disclosure in Annual Report

In fact compliance by the business with all the obligations under the law is like having an insurance policy wherein the company and its management will not be held liable thereafter even in case any sexual harassment occurs.

Non compliance by organisations till now have resulted in CEOs being summoned personally by criminal courts and corporates being fined for non compliance with the law, FIRs being filed against senior officials under Indian Penal Code for abetting criminal offence of sexual harassment and businesses being liable to pay damages to the complainant in crores under law of torts.

Businesses also run the risk of cancellation of their registration and/or operating licences in case of repeated offences.

Experience has shown that general apprehension amongst employees of law being discriminatory (why only for women and not for men) as well as susceptible to misuse by women has been the major impediments for mass implementation though the same are unwarranted in the Indian context and due to adequate safeguards being provided in the law.

The misconception stems more from the perspective of criminal law wherein an accused may be arrested by the police during investigation on account of an FIR being filed by the women for alleged sexual harassment.  A woman can choose to simultaneously pursue her right to civil as well as criminal remedy.

The Ministry of Women & Child Development, Government of India has recently launched a comprehensive online complaint Management System [She-Box] for women working in both public and private organizations to oversee complaints of sexual harassment at workplace thereby pushing for better enforcement of the law.

Several challenges still remain; the most prominent being ignorance of law amongst employees and women in general due to which in case of sexual harassment, women see no other option but to complain to the police.   Several state governments too are yet to appoint all functionaries for effective implementation of the law.