Opening Doorz

By Lisha Gomes | Opening Doorz Editorial | October 17, 2020

PoSH stands for Prevention of Sexual Harassment at the workplace. As per the law in our country, every employer has a responsibility to prevent sexual harassment in their workplaces and more. The moniker PoSH stems from the Sexual Harassment of Women at the workplace (Prevention, Prohibition and Redressal) Act of 2013, or PoSH Act as it is commonly known.

Opening Doorz met up with Sairekha Sureshkumar, a lawyer with 14-plus years of legal experience. She heads the Mumbai Practice of Cohere Consultants, a pan India diversity and inclusion practice that specialises in workplace sexual harassment. She acts as an External Member in Internal Committees of Cohere’s clientele and specializes in mediation and alternate dispute resolution.

“With the coming of the PoSH Act, cases of sexual harassment have been getting visibility, recognition and adressed. Women are becoming more comfortable in coming forward and reporting harassment, since they know the cases will now be taken up,” says Sairekha Sureshkumar.

Here, in a conversation with Lisha Gomes, Sairekha makes it easy for us to understand the PoSH Act, its use and misuse and also how it has made the workplace (especially for women), a safer place. And if you thought working from home means devoid of sexual harassment, you are in for a spin.

Understanding PoSH

The PoSH Act basically aims at making employers in India responsible to prevent, prohibit and redress sexual harassment in their workplaces towards their female employees as well as any women who come into contact with their workplaces (like contractors, visitors, deputees, interns, suppliers, clients etc). The PoSH Act protects women and hence a complaint can be filed by an aggrieved woman (or by a bystander reporting a harassment of a woman) under the Act. Interestingly, the complaint can be filed against a man or a woman.

Before the PoSH Act and the amendments to the Indian Penal Code 1860 in 2013, sexual harassment was more commonly referred to by the term of ‘eve teasing’ or ‘outraging the modesty of a woman’ and the only redressal was a criminal complaint or proceeding.

An empowering Act

The PoSH Act now empowers organizations to deal with sexual harassment within their operations as a confidential inquiry or conciliation proceedings. Thus, the PoSH Act enables the de-stigmatization of being associated on either end of a sexual harassment complaint and encourages both women and bystanders in organizations to speak up against instances of inappropriate behaviour. It also ensures a quick and uncomplicated mechanism of complaint redressal. To understand the idea of its effectiveness (at Cohere Consultants alone) they have handled 2000-plus cases as external members acting on Internal Committees since the year 2013, when the PoSH Act came in force!

Defining a workplace

Workplace has a very wide definition under the Act. In simple words, any place you go to for your work, as well as an extension of, or related to your work including office transport or parties comes under the term ‘workplace’ under PoSH. Today, in the lockdown scenario, even your home becomes an extended workplace.

Sexual harassment online

With Work From Home being the new norm during this pandemic, the setting for sexual harassment has also moved virtual. Instances of sexual harassment continue to emerge, now in the virtual workplace. Comments from superiors like “Switch your camera on, I like to see your face,” though subtle, can make a woman uncomfortable and hence can fall in the realm of sexual harassment. Demands for ‘out of working hour’ calls and video calls can be thrown into the list too! More recently, the case of a gentleman who had an ‘objectionable poster’ on his backdrop during a video call sparked a controversy. In fact, the surge in the nature of video conference-related complaints even prompted the Ministry of Women and Child Welfare to issue guidelines for dressing during video conferences.

Actions and behaviour

The PoSH Act defines Sexual Harassment to include one or more of the following unwelcome acts or behaviours either directly or by implication:

• Physical contact and advancement
• A demand or request for sexual favours
• Making sexually coloured remarks
• Showing pornography
• Or any other unwelcomed physical, verbal or even non-verbal conduct of a sexual nature.

The Act also uniquely recognizes creation of a ‘hostile work environment’ [by behaviours like intimidation, humiliation, favouritism, detrimental treatment, threat to employment etc.] to be sexual harassment, if these behaviours exist in relation to any of the above-listed behaviours. Even instances of interactions between two people flirting or having physical contact like hugging or touching or the like, that affects team dynamics or makes co-workers uncomfortable have been reported as sexual harassment.

Internal Committee and what is required of a member

Every organization that employs more than 10 employees needs to have an IC (Internal Committee) at every location. The Act is clear as that the IC shall consist of following members to be nominated by the employer:

• Presiding Officer—a senior level woman.
• Not less than two members from among employees committed to the social cause or someone who has legal knowledge.
• One external member from associations committed to the causes of women or a person familiar with the issue of sexual harassment (a lawyer or social worker).

The external member is usually a legal expert or from an NGO or a social worker, whose job on the panel is to ensure neutrality. More than one half of the total members nominated should be women. No member can hold office for more than three years.

What about organizations with less than 10 employees

The Act provides something known as the ‘Local Committee’ or LC for these organizations. Each district has a Local Committee that is formed by the Government and also has members who are lawyers from an NGO or social workers. Mumbai has two such committees—in the Mumbai Metropolitan City and Greater Mumbai.

The process after a complaint is filed

When an aggrieved woman registers a complaint, the first step is for the IC to meet with the aggrieved woman and try to understand the events that led to the incident. The aggrieved woman is then offered interim relief (like transfer, paid leave, department change etc., to separate her from the person harassing her). The IC counsels her on her rights and the procedures under the company policy and the law and gives her options as to how she wants to proceed: whether she wants have conciliation proceedings or an inquiry.

As per the law, proceedings must be wrapped up within 90 days from the start of an inquiry. In case of an inquiry, rules of natural justice are followed and the Respondent (the person against whom a complaint has been made out) is given the complaint with opportunity for giving his or her response and also being heard. Once an IC arrives at findings, the same are shared with both parties for their objections if any. It is only after this that an IC may arrive at either of two conclusions—the allegations made out are substantiated or not. If substantiated, the IC usually makes recommendations ranging from apology or warning and in very serious cases, it could also cost a person their job.

Dealing with a false complaint

If an IC finds that an aggrieved woman has filed a false complaint with malicious intent or provided forged evidence, they may decide to conduct an inquiry against her and she may have to bear similar consequences as a Respondent. However, to be fair, false complaints are hardly the norm. Women find it difficult to speak up against sexual harassment and more so find it difficult to have evidence of such acts. Witnesses too are more often than not unwilling to come forward. Which is why, the law makes it very clear that lack of substantiation does not mean that a complaint is false!

Making it comfortable for women to speak up

• Training: The whole point of the PoSH trainings is to sensitize employees towards the PoSH process thus letting the women know that these cases are taken seriously by their employer.

• Awareness Creation: There are posters put out in the office and emails sent with contact information of the IC members who may be approached.

• Confidentiality: The discreet nature of the process and the kind of internal PoSH policies of companies are key here. At Cohere, they work closely to help clients frame robust PoSH policies that are confidential, non-retaliatory and employee-friendly.

(Lisha Gomes is a third year BMM (Bachelor of Mass Media) student at St. Andrews College, Bandra, Mumbai. She is passionate about reading, enjoys singing and has also participated in a few dance shows. A regular in the college soccer team, she was a star performer for her school, Mary Immaculate Girls High School, Borivali).

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