PoSH is the generally accepted term for the Sexual Harassment of Women At Workplace (Prevention, Prohibition & Redressal) Act 2013 notified by the Government of India in April 2013 to ensure women’s right to workplace equality through compliance with the following three elements:

• Protection against sexual harassment of women at workplace.
• Prevention.
• Redressal of complaints of sexual harassment.

“Sexual Harassment” includes anyone or more of the following unwelcome acts or behaviour (whether directly or by implication), namely:

• Physical contact and advances, or
• A demand or request for sexual favours, or
• Making sexually coloured remarks, or
• Showing pornography, or
• Any other unwelcome physical, verbal, non-verbal conduct of sexual nature.

Generally, workplace sexual harassment also refers to two other forms of very common inappropriate behaviour:

Quid Pro Quo (literally ‘this for that’) which include:

• Implied or explicit promise of preferential treatment in employment.
• Implied or explicit threat of detrimental treatment in her employment.
• Implied or express threat about her present or future employment status.

Hostile Work Environment:

• Creating a hostile, intimidating or an offensive work environment.
• Humiliating treatment likely to affect her health or safety.

Workplace Sexual Harassment is behaviour that is:

• UNWELCOME.
• SEXUAL in nature.
• A SUBJECTIVE experience.
• IMPACT not intent is what matters.
• Often occurs in a matrix of POWER.

Following are some examples of the behaviour that constitute sexual harassment at the workplace:

• Making sexually suggestive remarks or innuendos.
• Serious or repeated offensive remarks, such as teasing related to a person’s body or appearance.
• Offensive comments or jokes.
• Inappropriate questions, suggestions or remarks about a person’s sex life.
• Displaying sexist or other offensive pictures, posters, mms, sms, whatsapp, or e-mails.
• Intimidation, threats, blackmail around sexual favours.
• Threats, intimidation or retaliation against an employee who speaks up about unwelcome behaviour with sexual overtones.
• Unwelcome social invitations, with sexual overtones commonly understood as flirting.
• Unwelcome sexual advances which may or may not be accompanied by promises or threats, explicit or implicit.
• Physical contact such as touching or pinching.
• Caressing, kissing or fondling someone against her will (could be considered assault).
• Invasion of personal space (getting too close for no reason, brushing against or cornering someone).
• Persistently asking someone out, despite being turned down.
• Stalking an individual.
• Abuse of authority or power to threaten a person’s job or undermine her performance against sexual favours.
• Falsely accusing and undermining a person behind closed doors for sexual favours.
• Controlling a person’s reputation by rumour-mongering about her private life.

Following examples of behaviours may indicate underlying workplace sexual harassment and merit inquiry but these needs to be seen and understood with the definitions of Sexual Harassment given in Q2 & Q3 above:

• Criticizing, insulting, blaming, reprimanding or condemning an employee in public.
• Exclusion from group activities or assignments without a valid reason.
• Statements damaging a person’s reputation or career.
• Removing areas of responsibility, unjustifiably.
• Inappropriately giving too little or too much work.
• Constantly overruling authority without just cause.
• Unjustifiably monitoring everything that is done.
• Blaming an individual constantly for errors without just cause.
• Repeatedly singling out an employee by assigning her with demeaning and belittling jobs that are not part of her regular duties.
• Insults or humiliations, repeated attempts to exclude or isolate a person.
• Systematically interfering with normal work conditions, sabotaging places or instruments of work.
• Humiliating a person in front of colleagues, engaging in smear campaigns.
• Arbitrarily taking disciplinary action against an employee.
• Controlling the person by withholding resources (time, budget, autonomy, and training) necessary to succeed.

Some examples of workplace behaviours that may not constitute sexual harassment:

• Following-up on work absences.
• Requiring performance to job standards.
• The normal exercise of management rights.
• Work-related stress e.g. meeting deadlines or quality standards.
• Conditions of works.
• Constructive feedback about the work mistake and not the person.

An aggrieved woman can be defined as:

• A woman working or visiting any workplace whether in the capacity of regular, temporary, ad-hoc, or daily wages basis.
• A woman whether engaged directly or through an agent including a contractor, with or without the knowledge of the principal employer.
• A woman, who is working in a dwelling place or house as a domestic worker which means that she is employed to do the household work for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part time or fulltime basis.
• A woman working for remuneration, on a voluntary basis or otherwise.
• A woman who is a co-worker, a contract worker, probationer, trainee, apprentice, or called by any other such name.

Complaint against an act of sexual harassment can be filed by:

i. The aggrieved woman herself.
ii. In case of physical incapacity of the aggrieved woman:

• Complainant's relative or Complainant's friend.
• Co worker.
• Officer of NCW or SCW.
• Any person who has knowledge of the incident with the written consent of the complainant.

iii. In case of mental incapacity of the aggrieved woman:

• Complainant's relative.
• Complainant's friend.
• Special educator.
• Qualified psychiatrist/psychologist.
• Guardian/authority under whose care the complainant is receiving treatment/care.
• Any person with knowledge of the incident, jointly with any person mentioned above.

iv. In case of Complainant's death any person with knowledge of the incident can file the complaint with the written consent of her legal heir
v. In case Complainant is unable to file the complaint for any other reason, the complaint can be filed by any person who has knowledge of the incident with written consent of the aggrieved woman.

A workplace is defined as “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.” As per this definition, a workplace covers all government organisations, private companies and ventures, un-organised sector, hospital, nursing homes, sports institutions etc. It also includes all workplaces whether owned by Indian or foreign company having a place of work in India.

Employee means a person employed at a workplace for any work on regular, temporary, adhoc or daily basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name.

An employer refers to:

i. The head of the department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the Appropriate Government or local authority or such officer specified in this behalf.
ii. Any person (whether contractual or not) responsible for the management, supervision and control of a designated workplace not covered under clause (i).
iii. A person or a household who employs or benefits from the employment of domestic worker or women employees.

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

• Provide a safe working environment at the workplace and treat sexual harassment as a misconduct under the service rules and initiate action for such misconduct;
• Create and communicate a detailed policy about Prevention, Prohibition & Redressal of Sexual Harassment;
• Constitute Internal Complaints Committee in the workplace;
• Display in the workplace, the penal consequences of sexual harassments and the order constituting the ICC;
• Organize workshops and awareness programmes at regular intervals for sensitising the employees with the PoSH Act;
• Organize orientation programmes for the members of the ICC to ensure that Complaints Committees are trained in both skill and capacity;
• Provide necessary facilities to the ICC or the LCC for dealing with the complaint and conducting an inquiry;
• Provide assistance to the woman if she chooses to file a complaint under IPC or any other law;
• Prepare an annual report and report to the respective state government.

An employer can be subjected to a penalty of up to INR 50,000 for:

• Failure to constitute Internal Complaints Committee.
• Failure to act upon recommendations of the Complaints Committee; or
• Failure to file an annual report to the District Officer where required; or
• Contravening or attempting to contravene or abetting contravention of the Act or Rules.

Where an employer repeats a breach under the Act, they shall be subject to:

• Twice the punishment or higher punishment if prescribed under any other law for the same offence.
• Cancellation/Withdrawal/Non-renewal of registration/license required for carrying on business or activities.

Complaints Committee are set up to enable women to work in an environment free of sexual harassment and to receive and inquire into the complaints of sexual harassment. There are two types of Complaints Committees.

Internal Complaints Committees (ICC) are set up by every employer with more than 10 employees through a written order. Where the office or administrative units of a workplace are located in different places, division or sub-division, an ICC has to be set up at every administrative unit and office.

Local Complaints Committees (LCC) are set up in every district by the concerned District Officer to receive complaints from women working in an organisation having less than 10 workers, when the complaint is against the employer himself and from domestic workers.

The ICC/LCC must have 50 per cent representation of women and will be composed of the following members:

i. Chairperson Women working at senior level as employee; if not available then nominated from another office/units/ department/ workplace of the same employer
ii. 2 Members (minimum) From amongst employees committed to the cause of women/ having legal knowledge/experience in social work
iii. Member From amongst NGO/associations committed to the cause of women or a person familiar with the issue of Sexual Harassment

The LCC must have 50 per cent representation of women and shall be composed of the following members:

i. Chairperson Nominated from amongst the eminent women in the field of social work and committed to the cause of women
ii. Member Nominated from amongst the women working in the block, taluka or tehsil or ward or municipality in the district
iii. 2 Members Nominated from amongst such NGO/associations/persons committed to the cause of women or familiar with the issues relating to sexual harassment, provided that at least one must be a woman and at least one must have a background of law or legal knowledge
iv. Ex Officio member: The concerned officer dealing with social welfare or women and child development in the district

The Presiding Officer and every member of the ICC and LCC shall hold office for a period not exceeding three years from the date of nomination as member.

Any aggrieved women may make in writing a complaint of sexual harassment at workplace to the Internal committee/ Local Committee within 3 months from the date of incident or the date of the last incident in case of a series of incidents. In case the women cannot write, the Presiding officer/ any member of Internal Committee/ Chairperson/ any member of Local Committee shall render all reasonable assistance.

The written complaint should contain a description of each incident(s). It should include relevant dates, timings and locations; name of the respondent(s); and the working relationship between the parties. A person designated to manage the workplace sexual harassment complaint is required to provide assistance in writing of the complaint if the complainant seeks it for any reason.

Option A:

Upon receipt of the complaint, the ICC or LCC must proceed to make an inquiry in accordance with the service rules applicable to the respondent or where no such service rules exist, in accordance with rules framed under the Act.

Option B:

The ICC or the LCC may forward the complaint to the Police.