The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Rules

The said Act (popularly referred to as POSH Act), became applicable from 23rd April 2013. The Supreme Court in its landmark judgment in Vishaka and others v State of Rajasthan (1997) laid down guidelines for providing a mechanism to redress grievances of sexual harassment in workplace. These guidelines served the basis for the framework of the said Act.

It is applicable to organized as well as unorganized sector, to government, public and private organizations, hospitals, educational institutions etc. and has a very wide scope.

Employee also includes temporary, contract labour, trainees and even if working on a voluntary basis.

As per the Act, any organization having more than 10 employees must have an Internal Complaints Committee (ICC). To cater to organizations where employees are less than 10 or if complaint is against employer then the government must set up, Local Complaints Committees (LCC).

The Act lays down the process for filing complaint and doing inquiry. It also safeguards against frivolous complaints.

Below is a model draft of a company policy on sexual harassment.

MODEL DRAFT OF POLICY FOR PREVENTION OF SEXUAL HARASSMENT AT THE WORK PLACE

1. Title and Commencement

This Policy will be called (X Y Z company) on zero tolerance to sexual harassment at the work place and shall come into force with immediate effect.

2. Scope

This Policy shall apply to all persons employed at the workplace for any work of regular, temporary, ad hoc or daily wage basis. directly or through an agent/contractor, including persons working on a voluntary basis and apprentices, trainees, probationers, agent, including consultants of the Company.

3. Objective

The Company firmly believes that every employee has a right to work in an environment free from harassment, intimidation or offensive behaviour and issues of harassment will be resolved without fear of reprisal. The Policy is designed to take effective measure to prevent, prohibit, sexual harassment and have the mechanism to redress cases of sexual harassment and impose punishment for those responsible for sexual harassment.

4. Policy

Harassment in any form will not be permitted or tolerated or condoned by the Company whether it is based on a person’s race, colour, ethnic or national origin, gender, real or suspected sexual orientation, religion or perceived religious affiliation, disability or other personal characteristics.

The use of Company property including e-mail, Bulletin Boards or any document as a vehicle for harassment is prohibited.

5. Prohibition of Sexual Harassment

No employee shall engage in Sexual Harassment.

6. Meaning of Sexual Harassment and Sexually Oriented Behaviour

‘Sexual Harassment’, includes any unwelcome sexually determined behaviour, direct or by implication, and includes physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Sexually Oriented behaviour shall mean and include but not limited to the following:

• Material that is sexual in nature, sexist, sexually explicit and so on and is displayed in the workplace, circulated, or put in someone’s workspace or belongings, or on a computer, i­-pad, mobile phone, i-phone, blackberry or on any other machine or on the internet or any other public display system or public place in the work premises.
• Verbal abuse or comments that put down people because of their sex.
• Comments about people’s (women/men) bodies.
• Tales of sexual exploits.
• Graphic descriptions pornography.
• Pressure for dates.
• Sexually explicit gestures.
• Unwelcome touching and hugging.
• Sexist and insulting remarks.
• Sexist jokes and cartoons.
• Displaying pornography in the workplace.
• Insisting that workers wear revealing clothing.
• Inappropriate gifts.
• Discussion of one’s partner’s sexual life.
• Lewd and threatening letter
• “Accidentally” brushing sexual parts of the body.
• Pressing or rubbing up against an aggrieved person.
• Indecent exposure.
• Subtle or overt pressure for sexual favour
• Soliciting sexual services.
• Demanding sexual services.
• Sexual or physical contact, such as kissing or touching.
• Intrusive questions about sexual activity.
• Sexual assault.
• Repeated sexual invitations when the person invited has refused/ignored similar invitations.
• Coerced sexual intercourse (e.g., as a condition of employment or academic status).

“Sexual Harassment” should not be confused with simple friendly behaviour, if these are mutually desired and accepted. The difference between friendly behaviour and sexual harassment is that sexual harassment is an unwelcome act.

7. Prevention of Sexual Harassment

No person shall be subjected to sexual harassment at any work place.

The following circumstances among other circumstances if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment.

1. implied or explicit promise of preferential treatment in the persons employment/promotion; or
2. implied or explicit threat of detrimental treatment in the persons employment/promotion; or
3. implied or explicit threat about the persons present or future employment/promotion status; or
4. interferes with work or creating an intimidating or offensive or hostile work environment for the persons; or
5. humiliating treatment likely to affect the persons health or safety.

8. Rights and Responsibilities of Employees

1. Every Employee shall be entitled to a work environment with dignity and free from sexual harassment.
2. Every Employee shall be entitled to complain against Sexually Oriented Behaviour to which he/she was subject to or which was targeted at him/her, to the Internal Complaints Committee or to the Chairperson or any other Member of the Internal Complaints Committee established under this policy.
3. Every Employee shall promptly report any incident of Sexual Harassment that comes to his/her knowledge to the Internal Complaints Committee or to the Chairperson of the Internal Complaints Committee or to the Official, if designated by the Chairperson of the Internal Complaints Committee as the case may be.

9. The Internal Complaints Committee

The names and contact details of the members of the Internal Complaints Committee (ICC) is given in Annexure One. The term of office of the Internal Complaints Committee is for a period of 3 years from today. On the expiry of the three-year period, the existing members of the Internal Complaints Committee (ICC) will continue to hold office, till the new Internal Complaints Committee is constituted. If a member of the Internal Complaints Committee who is an employee of the company and when she/he cease to be an employee of the company then she/he will also cease to be a member of the Internal Complaints Committee.

The Internal Complaints Committee will cover all the factories and offices of the company in India.

10. Powers and Duties of the Internal Complaints Committee

• The Internal Complaints Committee will receive the complaints on sexual harassment; enquire into the complaints, conduct the enquiry and submit the findings on the complaint.

11. Complaints Procedure

• Any employee will have a right to lodge a complaint concerning sexual harassment against an employee.
• Such a complaint needs to be in writing.
• If the complaint is oral, the same needs to be in writing. The complainant, if desires could be facilitated in writing the complaint by an Internal Complaints Committee member.
• The Complainant will be afforded confidentiality on the complaint by the Internal Complaints Committee members
• Immediately upon receipt of the Complaint, the Member of the Internal Complaints Committee to whom the Complaint is made shall communicate the same to the Chairperson of the Internal Complaints Committee.
• Within a period of 5 working days from the date of such communication, the Chairperson shall convene a meeting of the Internal Complaints Committee.
• The Internal Complaints Committee shall examine the complaint and shall undertake investigation of the complaint after giving opportunities to the complainant to present his/her case and the respondent to give his/her version. The Internal Complaints Committee may examine witness from both the sides and give opportunity of cross-examining of the witness. Documents if any produced by the parties may be taken on record. Neither the complainant nor the respondent can bring in any legal practitioner to represent them in their case at any stage before the Internal Complaints Committee. The Internal Complaints Committee on completion of the inquiry will submit its report to the complainant, respondent and the company management. The Internal Complaints Committee shall enquire into the complaint as prescribed under The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the Rules made thereunder as in force from 9-12-2013.

12. Protection against Victimization

In the event complainant being an employee and the respondent being his/her manager, during the pendency of investigation and even after such investigation if the manager is found to be guilty, the respondent shall not act as Manager of the Complainant.

13. Consequence of Complaint Being Proved

In the event allegations made in the complaint are proved against the respondent, it will be taken as proved misconduct and the competent authority may impose any of the punishment as envisaged in the policy on disciplinary process including dismissal.

14. Consequence of False Complaint

In the event allegations made by the complaint are proved to be false then the competent authority may impose any of the punishment as envisaged in the policy on disciplinary process including dismissal.

15. Obligations of the Management

The Management of the Company shall provide all necessary assistance for ensuring full effective and speedy implementation of this Internal Complaints Committee constituted as above and shall implement the decisions in an expeditious manner.

16. Third Party Harassment

In case of third party Sexual Harassment the Internal Complaints Committee will actively assist and provide all its resources to the complainant in pursuing the complaint.

17. Savings

The proceedings under this policy shall not be stalled or postponed merely because the complainant is proceeding against the respondent under any other provision of civil or criminal law.

Designation: Managing Director/CEO

Annexure One 
Name and Details of the Internal Complaints Committee Members

 Designation: Managing Director/CEO

Fresh guidelines on Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 issued by DoPT as per the Press Information Bureau – Government of India - Ministry of Women and Child Development – dated 28 December 2016

WCD Ministry will hold consultations on a regular basis on issues pertaining to the Act:

The Minister for Women and Child Development, Smt. Maneka Sanjay Gandhi, had held a review meeting on implementation of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on 26.10.2016. During the meeting, some cases of sexual harassment pending with certain ministries/ departments were also examined. On the basis of the discussions, it was decided that DoPT will issue fresh instructions so that some of the issues can be suitably addressed.

On the basis of the decisions taken, DoPT has issued fresh guidelines regarding Sexual Harassment of Women at Workplace vide their Office Memorandum dated 22.12.2016. According to the O.M., following have to be observed by the ministries/departments and Internal Complaints Committees:

1. Brief details of the implementation of the Sexual Harassment of Women at Workplace Act including the number of cases received and disposed shall form a part of the Annual Report of all ministries/ departments and authorities there under.
2. The enquiry of cases must be completed within 30 days and under any circumstances within 90 days from the date of the complaint.
3. The ministries/ departments etc. have to keep a watch on the complainant so as to ensure that she is not victimized in any manner because of her having filed the complaint. The aggrieved woman has been given further option to send representation to the Secretary or head of the organization in case she feels that she is being victimized because of her complaint. The concerned authority will be required to dispose of this complaint within 15 days.
4. All ministries/ departments etc. are now required to submit a monthly progress report to the Ministry of Women and Child Development so that the progress can be monitored.

Smt. Maneka Sanjay Gandhi, while appreciating DoPT for having quickly issued the guidelines, stated that the WCD Ministry shall continue to work on issues related to sexual harassment of women at workplace and she will be holding further consultations to see if there are any other areas which need to be looked into. The WCD Ministry will be coming out with a comprehensive plan to train the heads of Internal Complaint Committee under the Central Government Ministries/ Departments, the Minister added.