Workplaces Still Face 8 Challenges In Implementing POSH Act 2013. How Do We Change This?

Workplaces still face a number of challenges in implementing POSH Act, 2013 – these were discussed recently at the POSHaya Conclave in Hyderabad, by Parity Consulting and Cyril Amarchand Mangaldas.

A few weeks back, one of my cousins called me up in a distraught state. She had recently joined an organization but wanted to quit because she had been facing sexual harassment at the hands of her manager. When I urged her to raise this with the HR department, she revealed that she had already taken that route but to no avail. To make matters worse, her colleagues had begun to gossip about the matter and she couldn’t take the murmurs all around anymore. Sounds familiar, isn’t it?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is a legislative act in India that seeks to protect women from sexual harassment at the workplace.

Recently, I got a wonderful opportunity to attend the POSHaya conclave on preventing sexual harassment at workplaces in my city. This insightful and comprehensive conclave was presented by Parity Consulting and Cyril Amarchand Mangaldas. There were fiery and in-depth panel discussions and talks through the course of the event by eminent and expert speakers on the “Why”s, “What”s and “How”s of the POSH Act.

The keynote address by honourable DCP, Women and Children Safety Wing, C. Anasuya was the perfect kick-start to the event. She started from the basics – Why should we care about sexual harassment in workplaces? Why has the POSH act been laid out for every organization to implement?

Quoting DCP Anasuya, “POSH is compulsory to ensure safety at workplaces for every person and it is also in keeping with our Constitution which talks about right to equality at workplace”.

Below were the key takeaways from her enlightening and inspiring session:

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• POSH Act necessary to instil a sense of security in an organization
• Essential to give a voice to the exploited by removing the stigma around talking about sexual harassment.
• Crucial to encourage participation of women towards our economic growth and GDP
• Organizations need to learn to deal with such issues with compassion and nip them in the bud instead of brushing them under the carpet

As per recent statistics, it is alarming to note that almost 78% cases of sexual harassment at workplaces are going unreported. We have a robust POSH Act in place but evidently there are gaps that need to be filled.

Challenges in implementing POSH Act 2013 – questions we must ask ourselves

• What are the challenges in implementing POSH Act that organizations face?
• What can we as a society do to help the cause?
• Is there a need to revisit the POSH Act that might aid in combating some of these hurdles?

An informative speaker perspective on effective compliance of the POSH Act by Rashmi Pradeep, Partner, Cyril Amarchand Mangaldas and a brilliant panel discussion on recognizing and reporting sexual harassment with an experienced and diverse panel gave the attendees deep insights to unlock the answers to these pressing questions.

What are the key operational challenges in implementing POSH Act faced by organizations?

Lack of understanding and awareness about sexual harassment

The biggest challenge lies where it all begins. As a society, we are still not evolved enough to understand what constitutes sexual harassment. There are many grey areas and most organizations are not aware of the difference between harassment and sexual harassment. In a number of instances, the victim is also not aware of her right and when she can report misbehaviour. Perspectives differ and hence, in spite of having policies in place, the Act is not able to benefit organizations the way it should.

Suggested remedial actions:

• Continuous trainings in the organization for a nuanced understanding of sexual harassment and appropriate code of conduct
• Inculcating deeper level of sensitivity in the workforce
• Busting myths to establish that non-sexual behaviour and sexism may also indicate sexual harassment and physical contact may not automatically fall under it.
• Senior leadership to set the right example

As rightly pointed out by Nandini Mehta, Head, Business HR, Max Retail Division, Lifestyle International Pvt. Ltd., “The leadership has to treat this like a long term, ongoing learning process. It should be a way of life for all and not something being done by the organization as an obligation because of the law.”

Ill-equipped Investigation Committee

As per the POSH Act, the Investigation Committee (IC) appointed by every organization has been vested with immense power. While this is a unique concept that can be leveraged to bring about a massive change in the way sexual harassment cases are handled, getting the right people into the committee itself poses a major challenge.

Organizations are struggling on the below aspects when it comes to appointing a well-equipped IC:

• Biased mindsets of otherwise qualified and experienced personnel.
• Ensuring diversity in the IC can be an uphill task keeping in mind the availability of senior level employees out of their usual job schedule.
• Conflict of interests (in cases where position of IC member might be weaker than the position of the complainant or respondent).
• Identification of senior woman employee who is a good fit
• Logistical challenges in implementing POSH Act in case the IC members are present in multiple locations
• Deciding an appropriate meeting place to ensure confidentiality of the case. This should also be a place easily accessible for all members of the IC members.

Ensuring fairness and justice in such complicated situations is certainly a huge challenge and some concrete steps can be taken by the employer to equip and empower the ICs:

• Educating the IC members about consent and the power dynamics at play. Laxmi Char, Co-Founder, Parity Consulting stated it loud and clear during her session on looking at the Act with a social lens, “Active consent is important. I might have agreed to something yesterday, does not mean I am ok with it even today.”
• Constant up-skilling of IC members through trainings and availability of legal/experts help when needed.
• Encouraging IC members to talk about their unconscious biases as the first step to overcoming them.
• Providing the technical and logistical help so that meetings can be conducted via video conferences, etc.
• Rewarding the IC members for their contribution.

Ambiguity in the hearings & Standard of Proof

Owing to lack of circumstantial evidence in most cases, it is a daunting task for the Investigation Committee to come to a fair conclusion within a stipulated timeframe to be met as per the POSH Act guidelines.

What does one do when it becomes a case of “He said, She said” blame game?

Here are a few pointers for the employer and ICs to overcome this barrier:

• Mindful, objective and logical approach to investigation instead of acting on impulse.
• Keeping in mind that intent of act is not relevant.
• Thorough check and recording of facts and credibility of both the parties involved without bringing the history of complainant into the picture.
• Face to face discussion with both the complainant and respondent, if possible.
• Interim relief to be provided to complainant like temporary transfer of the alleged perpetrator/complainant to a different function/project.
• Making it clear that lack of proof does not imply that the case is false and reiterating the behavioural norms expected at the workplace.
• Follow up with complainant necessary to ensure comfort and safety at the organization irrespective of the outcome of a case.

POSH Act – not gender neutral?

The POSH Act deals with sexual harassment of those who identify themselves as women only, which has caused discomfort and feelings of being differentiated in employees in certain organizations. This also poses a major challenge for companies to come up with gender neutral policies.

Here is an informative article on the appeal process for men and how organizations can extend the law to make it all inclusive.

How to deal with anonymous complaints?

The POSH Act does not contain any provision to address anonymous complaints. This is a challenge for the organizations as quite a few cases are anonymously reported due to various factors like fear, hesitation and stress.

While the employer may not be under obligation to investigate such cases as per the written law, it is advised that the IC members probe the matter in the spirit of the law. It is definitely not prudent to ignore delinquent behaviour.

Employees are often unaware of the POSH Act, or of its applicability for them

Who is the POSH Act for?

No law can be of any help if you do not know your rights!

Key points to note in this regard are:

• The POSH Act applies not only to payroll employees but anyone doing any kind of work at/for the organization.
• If perpetrator is not a part of the organization, action must be initiated in the workplace of the non-employee perpetrator.
• Periodic trainings and all forms communication with the workforce is the best way to empower them and make them cognizant of their rights.

Lodging of FIR can deter the internal investigation?

More often than not it has been observed that a complainant lodges an FIR in parallel to raising a complaint with the IC, probably due to the lackadaisical attitude of the ICs in some organizations which does not take a stand at the first instance of reporting itself.

In such scenarios, the employer might face hurdles in investigation, but there should be no attempt to protect either the perpetrator or the complainant. The employer IC ought to provide report to police if summons are issued and can continue to vigilantly investigate the case in parallel.

Vague and Incorrect Annual Reporting leading to confidentiality issues?

The IC is required to prepare an annual mandatory report that must include details of number of cases received and resolved, number of cases pending for more than 90 days and reasons for this delay, actions taken by the employer and number awareness workshops conducted.

However, it has been observed that a number of organizations are not submitting this report to the right authority due to lack of clarity from state on where the reports must be submitted. This can lead to data leaking issues as well as monetary fine for the organizations.

To tackle this challenge, the employer can submit a letter to the applicable ministry stating that notification on the authority to submit the report is being awaited.

Each of us has a role to play to remove challenges in implementing POSH Act

Organizations are a part of the society and hence, each one of us has to become a part of the change at the grassroots level. Ddharaniikota Ssuyodhan, International Commercial and Corporate Lawyer Director and Head of Legal, stressed upon the fact that the only way forward is for all of us to look at POSH as an enabling act and not a policing act.

While the Act can be relooked at for adding more teeth to it and making it all-encompassing, we need to create the larger environment for the legislation to bear fruit first. Sensitization workshops to understand mindfulness and consent, political representation and systematic advancement of the thought leadership are the need of the hour. The conclave was concluded succinctly by Meena Jagtiani with a powerful thought – “Yes means yes, everything else is a No”.

Author’s Note: To know more about POSH Act and its legal implications, following resources might be helpful:

Parity Consulting

Handbook on Sexual Harassment of Women at Workplace

Image source: YouTube

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