FAQ
Sexual harassment has been defined under section 2(n) of the "The Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act)
in the following words.
“sexual harassment” includes any one or more of the following unwelcome acts or
behaviour (whether directly or by implication) namely:—
- physical contact and advances; or (ii) a demand or request for sexual favours; Or
- making sexually coloured remarks; Or
- showing pornography; Or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
Additionally section 3 of the Act further states that no woman shall be subjected
to sexual harassment at any workplace. Further section 3 identifies certain circumstances,
if it occurs, will amount to sexual harassment. These may be termed
- Promise of preferential treatment at work.
- Threat of detrimental treatment at work.
- Threat about her present or future employment.
- Interfering with her work or creating an intimidating or offensive or hostile work
environment for her.
- Humiliating treatment likely to affect her health or safety.
Section 2(o) defines workplace as:
- (o) “workplace” includes—
- any department, organisation, undertaking, establishment, enterprise, institution,
office, branch or unit which is established, owned, controlled or wholly or substantially
financed by funds provided directly or indirectly by the appropriate Government
or the local authority or a Government company or a corporation or a co-operative
society;
- any private sector organisation or a private venture, undertaking, enterprise, institution,
establishment, society, trust, non-governmental organisation, unit or service provider
carrying on commercial, professional, vocational, educational, entertainmental,
industrial, health services or financial activities including production, supply,
sale, distribution or service;
- hospitals or nursing homes;
- any sports institute, stadium, sports complex or competition or games venue, whether
residential or not used for training, sports or other activities relating thereto;
- any place visited by the employee arising out of or during the course of employment
including transportation by the employer for undertaking such journey;
- a dwelling place or a house;
Sexual harassment not only includes physical conduct but also verbal and non-verbal
conduct. The following actions can be said to amount to sexual harassment.
- Physical conduct:
Unwelcome physical contact including patting, pinching, stroking, kissing, hugging,
fondling, or inappropriate touching.
Physical violence, including sexual assault.
Physical contact, e.g. touching, pinching.
The use of job-related threats or rewards to solicit sexual favours.
- Verbal conduct:
Comments on a worker's appearance, age, private life, etc.
Sexual advances.
Repeated and unwanted social invitations for dates or physical intimacy.
Insults based on the gender of the worker.
Paternalistic remarks.
Sending sexually explicit messages (by phone or by email).
Indecent, vulgar discussion with or in front of a woman
- Non-verbal conduct:
Display of sexually explicit or suggestive material.
Sexually-suggestive gestures.
Whistling, staring.
Section 2 (a) of the Act defines aggrieved woman as:
- In relation to a workplace, a woman of any age whether employed or not, who alleges
to have been subjected to any act of sexual harassment by the respondent.
- In relation to a dwelling place or house, a woman of any age who is employed in
such a dwelling or house.
The Internal Complaints Committee is an in-house redress mechanism to inquire into
alleged complaints of sexual harassment in the institutions /organisations. Section
4 of the Act mandates that every employer of a workplace shall, by an order in writing,
constitute a Committee to be known as the “Internal Complaints Committee”: and where
the offices or administrative units of the workplace are located at different places
or divisional or sub-divisional level, the Internal Committee shall be constituted
at all administrative units or offices.
Composition
The Internal Committees shall consist of the following members to be nominated by
the employer, namely: —
- a Presiding Officer who shall be a woman employed at a senior level at workplace
from amongst the employees
- not less than two Members from amongst employees preferably committed to the cause
of women or who have had experience in social work or have legal knowledge;
- one member from amongst non-governmental organizations or associations committed
to the cause of women or a person familiar with the issues relating to sexual harassment:
At least one-half of the total Members shall be women.
According to section 9 (1) of the Act a complaint of sexual harassment may be filed
by
Composition
The Internal Committees shall consist of the following members to be nominated by
the employer, namely: —
- a Presiding Officer who shall be a woman employed at a senior level at workplace
from amongst the employees
- The aggrieved woman
- Section 9 (2) provides that where the where the aggrieved woman is unable to make
a complaint on account of her physical or mental incapacity or death or otherwise,
her legal heir or such other person as may be prescribed may make a complaint under
this section.
The POSH Rules 2013 by virtue of Rule 6 clarifies and elaborates the categories
of persons who can file a complaint on behalf of the aggrieved woman for the purposes
of section 9 (2). The Rule provides that where
- The aggrieved woman is suffering from physical incapacity and is unable to make
a complaint on account of the same, a complaint may be filed by —
- a)her relative or friend; or
- b)her co-worker; or
- c)an officer of the Notional Commission for Women or State Women’s Commission; or
- d)any person who has knowledge of the incident, with the written consent of the
aggrieved woman;
- Mental Incapacity: where the aggrieved woman is unable to make a complaint on account
of her mental incapacity, a complaint may be filed by-
- a)her relative of friend; or
- b)a special educator; or
- c)a qualified psychiatrist or psychologist; or
- d)the guardian or authority under whose care she is receiving treatment or care;
or (e) any person who has knowledge of the incident jointly with her relative or
friend or a special educator or qualified psychiatrist or psychologist, or guardian
or authority under whose care she is receiving treatment or care;
Any other reason
- where the aggrieved woman for any other reason is unable to make a complaint, a
complaint may be filed by any person who has knowledge of the incident, with her
written consent;
Where the aggrieved woman is dead
- where the aggrieved woman is dead, a complaint may be filed by any person who has
knowledge of the incident, with the written consent of her legal heir.
An aggrieved woman or any person on her behalf as mentioned in Rule 6 may file a
complaint before the Complaints Committee in the following manner.
- The complainant is required to file the complaint in writing and submit the same
before the ICC within three months of the date of the incident or in case of series
of incidents, three months from the date of last incident.
- The complainant can also send the complaint to any committee member via email.
- The complaint must be in six copies.
Rule 7 of the POSH Rules 2013 provides that
- once a complaint of sexual harassment has been filed before the Internal Complaints
Committee, the Committee shall, proceed to ascertain whether there was an occurrence
of sexual harassment as alleged by the complainant.
- The committee shall then issue notice to the respondent within 7 days of receipt
of complaint.
- The respondent is required to file the reply along with names and addresses of witnesses
within 10 days.
- According to section 10 of the said Act, the ICC may, upon request by the complainant,
proceed to settle the matter through conciliation. However there cannot be any monetary
settlement between the parties in conciliation proceedings.
- If the matter is not settled through conciliation, the internal committee shall
proceed with the inquiry under POSH as per the procedure prescribed under section
11 of the POSH Act 2013.
- The committee may also grant certain interim reliefs upon the request of the complainant
during pendency of enquiry.
- The parties shall not be allowed to bring in any legal practitioner to represent
them in their case at any stage of the proceedings before the Complaints Committee.
- The committee must conclude the enquiry within 90 days.
- If the allegations are found to be true, the internal committee can pass an order
to pay such sums as deemed fit by the aggrieved women as per the provisions of section
15 of the POSH Act,
- If the committee finds that the complaint is false it may recommend action to be
taken against the complainant.
Section 12 POSH Act, 2013 and Rule 8 of the POSH Rules, 2013 provides that during
the pendency of an inquiry on a written request made by the aggrieved woman, the
Internal Committee or the local Committee, as the case may be, may recommend to
the employer to—
- transfer the aggrieved woman or the respondent to any other workplace; or
- grant leave to the aggrieved woman up to a period of three months; where Such leave
shall be in addition to the leave she would be otherwise entitled; or
- grant such other relief to the aggrieved woman a may be prescribed.
- restrain the respondent from reporting on the work performance of the aggrieved
woman or writing her confidential report, and assign the same to another officer;
- restrain the respondent in case of an educational institution from supervising any
academic activity of the aggrieved woman.
The committee may recommend the following actions to be taken
- Award monetary compensation
- Consider the sexual harassment as misconduct on the part of the respondent as per
the provision of the prescribed service rules of the organisation.
- Seek written apology,
- Issue warning,
- reprimand or censure,
- withholding of promotion,
- withholding of pay rise or increments,
- terminating the respondent from service or
- undergoing a counseling session or carrying out community service.
The Internal Complaints Committee have been vested with both powers and responsibilities
to facilitate the functions of prohibition, prevention, and redressal of sexual
harassment of women at the workplace. According to the POSH Act, the ICC is –
- Empowered receive the complaints of sexual harassment at workplace.
- Initiate the inquiry and submit the findings after conclusion of inquiry done.
- It has the power to collect the evidence and summon the witnesses.
- It can also recommend the measures and actions to be taken to try another such case
in the future.
- Direct the employer to undertake required actions.
- Submit an annual report in the prescribed format.
Rule 10 of the POSH Rules 2013 provides that where the Complaints Committee arrives
at the conclusion that the allegation against the respondent is malicious or the
aggrieved woman or any other person making the complaint has made the complaint
knowing It to be false or the aggrieved woman or any other person making the complaint
has produced any forged or misleading document, it may recommend to the employer
or District Officer, as the case may be, to take action in the manner prescribed
under Rule 9 i.e.
- written apology,
- warning,
- reprimand or censure,
- withholding of promotion, withholding of pay rise or increments,
- terminating the respondent from service or
- undergoing a counselling session or carrying out community service.
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