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While there is an anti-sexual harassment law in place in India, it has several inadequacies in it. The author talks about two of the major inadequacies.
The Sexual Harassment at Workplace Act, 2013 [vide section 19 (c) along with rule 13 of the Sexual Harassment at workplace rules 2013], mandates the duties of the employers with regards to preventing and dealing with sexual harassment at the workplace.
These including “organising sensitisation and awareness sessions for their employees at regular intervals”.
This brings out a glaring irregularity in the mandate of law, i.e.;-
The law systematically ignores a mandate, which should otherwise encompass even the senior most members of an organisation. This becomes even more important in the recent developments in which the Honourable CJI was allegedly involved in the sexual harassment of an employee of the Supreme Court of India.
The Act does cover the employees of myriad organisations (ranging from ministries, private limited companies, PSU’s, partnerships, LLP’s etc.). However, it fails to include within its ambit the men and women at the top.
Quid pro quo or “this for that” is a well recognised type of sexual harassment which rests on the basis of a power imbalance. The Act ignores the sensitisation and awareness of the senior and senior most staff when it comes to sexual harassment prevention in organisations. This is wholly contradictory to what the POSH Act strives to achieve, i.e. nipping Sexual harassment at its bud at the workplace.
The absence of such a mandate does not in any way immunise the managerial and senior most staff from inquiry proceedings of the Internal Complaints Committee of the Organisation. However, should a complaint be filed, without awareness and sensitisation, how well informed and equipped is the management to understand and tackle the situation? Are they truly mindful of the various nuances of sexual harassment?
This inadequacy in the law doesn’t necessarily mean that the organisations get to choose to ignore the management staff in terms of anti-sexual harassment training, sensitisation and awareness.
It is a proven fact that in organisations where managers and senior staff are trained under the law against sexual harassment, the occurrence of sexual harassment is typically reduced.
Organisations must also factor in the importance of conducting awareness training and sensitisation for management and senior staff for inclusivity in the workplace. This must be done, along with organising training, awareness and sensitisation sessions for its employees.
Additionally, a sensitised and aware management can further anticipate any systematic biases that might exist in the organisation. They can also recognise risk factors and behaviour that might lead to a hostile work environment or result in ubiquitous complaints.
When employees are aware of sensitised supervisors and management, they hesitate less to report incidents. This builds trust and transparency in the organisation. Thus, eradicating any signs of sexual harassment resulting directly or indirectly in maximum productivity of the workforce.
Secondly, the absence of a definition of “regular intervals” for conducting awareness and sensitisation sessions by employers often leads to certain situations. One of them being the failure of employers in conducting these training and awareness sessions for months or years on end. In such scenarios, it is extremely difficult to ascertain what “regular intervals” entails.
Smriti Irani, Women and Child Development Minister told the Rajya Sabha on 11.07.2019 that “All Ministries of Government of India and State/Union Territories governments have been requested to organise workshops and awareness programmes in their departments/offices for sensitising employees about matters pertaining to sexual harassment of women at workplace and related legal provisions and redressal mechanisms”.
However, how often and after what intervals should these sessions and trainings be conducted is nowhere mentioned in the law. Effective compliance and implementation becomes a challenge when the organisation fails to conduct awareness sessions and workshops regularly.
The Central Government has requested all State Governments and UT administrations to advise the secretary industries/commerce to organise workshops and awareness programmes for every industry, business house, private sector entity of the States and Union Territories.
Organisations must therefore adhere to the concept of “regular intervals” in a reasonable manner.
Till the time the POSH law stands unchanged and the words “not exceeding one year” or “not exceeding 6 months” are not added to “regular intervals”, organisations must stringently and regularly provide training and awareness against sexual harassment in order to effectively comply with the POSH law.
After all, the goal remains “effective” compliance.
Picture credits: Screenshot from the movie Inkaar that talks about workplace harassment
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Prevention of Sexual Harassment (POSH) Consultant I Legal Journalist I Curious Cat
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