Status of Local Committee formation under POSH.

According to Section 6(1) of the Act, "Every District Officer shall constitute in the district concerned a committee to be known as the "Local Complaints Committee" to receive sexual harassment complaints from establishments where the Internal Committee has not been formed because it has fewer than ten employees or if the complaint is against the employer himself."

The Local Complaints Committee was changed to become the Local Committee in May 2016, broadening its mandate from merely handling complaints to one that requires it to act proactively to combat sexual harassment.

According to a report by the Martha Farrell Foundation, POSH policies are not generally being followed to its fullest extent (2018). In accordance with this research, 655 districts had 56 percent of requests for data sets from operating Local Committees ignored. Only 29% of districts claimed to have created LCs, and 15% of those districts still hadn't done so.

43% of respondents from the unorganized sector said they had at least once felt uneasy around a coworker. It is crucial to recognize the part stigma plays. The stigmatization of women increases with their level of marginalization, and many may not have the backing of their families to come forward and report workplace sexual harassment.

The Local Committee has the potential to sustain the spirit of the Vishakha principles through efficient execution. Since 95% of women in India's workforce are employed in the unorganized sector, strengthening the LC's operations would help the country's deeply ingrained patriarchal systems while ensuring institutional accountability.

Saurabh Kumar Mallick v. CAG: Reinforcing the Reach of the POSH Act in Government Institutions.

In a landmark judgment, the Delhi High Court delivered a resounding verdict that extended the applicability of the Prevention of Sexual Harassment (POSH) Act to government organizations, including constitutional bodies like the Comptroller and Auditor General of India (CAG). The case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2018) was a pivotal moment in ensuring that the principles of the POSH Act are upheld across all spheres of employment, irrespective of the nature or status of the organization.

The Crux of the Case

The case arose from a petition filed by Saurabh Kumar Mallick, an Assistant Audit Officer employed with the CAG, who alleged that he had been subjected to sexual harassment by a superior officer. Mallick claimed that despite filing a formal complaint, the CAG failed to take appropriate action or constitute an Internal Complaints Committee (ICC) as mandated by the POSH Act.

The CAG, in its defense, argued that as a constitutional body, it was not bound by the provisions of the POSH Act, which primarily applied to private-sector organizations and government departments.

The Decisive Ruling

The Delhi High Court, in its judgment, unequivocally rejected the CAG's contention and affirmed the applicability of the POSH Act to all organizations, including constitutional bodies like the CAG. The court's reasoning was based on a comprehensive analysis of the Act's provisions and its overarching objective of providing a safe and secure work environment for all employees, regardless of the organization's nature or status.

Key Observations and Implications:

Broad Applicability: The High Court emphasized that the POSH Act is a comprehensive legislation aimed at addressing sexual harassment in all workplaces, without any exceptions or limitations based on the type of organization.

Constitutional Mandate: The court highlighted that the POSH Act is a manifestation of India's constitutional commitment to ensuring gender equality and the right to life and dignity for all individuals, including those employed in constitutional bodies.

Equal Protection: The judgment reinforced the principle that all employees, irrespective of their place of employment, are entitled to equal protection under the law and the right to a safe and secure work environment.

Compliance Obligations: The court underscored that constitutional bodies like the CAG are not exempt from their obligations under the POSH Act, including the requirement to constitute an Internal Complaints Committee and implement mechanisms for addressing sexual harassment complaints.

The Broader Impact

The Saurabh Kumar Mallick v. CAG judgment has far-reaching implications for the effective implementation of the POSH Act across various sectors and organizations. It sends a clear message that no institution, regardless of its constitutional status or nature, can claim exemption from the provisions of this crucial legislation.

By extending the reach of the POSH Act to government organizations and constitutional bodies, the Delhi High Court has reinforced the principles of equality, non-discrimination, and the right to a safe and dignified work environment for all employees. This judgment serves as a powerful reminder that the fight against sexual harassment in the workplace transcends organizational boundaries and requires a concerted effort from all stakeholders, including those in positions of authority and responsibility.

As India continues to grapple with the pervasive issue of sexual harassment, this landmark ruling reinforces the commitment to creating inclusive and equitable workplaces, where every individual can thrive and contribute to the nation's progress without fear of harassment or discrimination

Essential Skills for Internal Committee (IC) Members: Navigating Workplace Harassment Cases

The role of Internal Committee (IC) members in addressing workplace harassment is pivotal in creating safe and inclusive environments. As custodians of the prevention, prohibition, and redressal framework laid out by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act), IC members need a diverse skill set to effectively handle cases. This article delves into the key skills required by IC members to navigate the complexities of workplace harassment cases.

1. Legal Acumen:

A fundamental skill for IC members is a sound understanding of the legal framework governing workplace harassment. Familiarity with the POSH Act and related regulations equips IC members to interpret and apply the law accurately during investigations, ensuring that the organization remains compliant.

2. Empathy and Sensitivity:

Dealing with workplace harassment cases requires a high degree of empathy and sensitivity. IC members must be attuned to the emotional well-being of those involved in the case, creating an environment where survivors feel heard, supported, and respected throughout the process.

3. Communication Skills:

Effective communication is crucial for IC members to facilitate open dialogue with all parties involved. Clear and transparent communication helps in conveying the procedures, rights, and responsibilities outlined by the POSH Act. Additionally, it fosters trust among stakeholders and ensures a fair and unbiased process.

4. Conflict Resolution:

Workplace harassment cases often involve complex interpersonal dynamics. IC members need strong conflict resolution skills to navigate these complexities, mediate discussions, and find amicable resolutions. This skill is essential for maintaining a harmonious work environment post-investigation.

5. Objectivity and Impartiality:

IC members must maintain objectivity and impartiality throughout the investigation process. This includes setting aside personal biases, treating all parties fairly, and basing decisions solely on the evidence and facts presented during the proceedings.

6. Investigative Skills:

Conducting thorough and impartial investigations is a core responsibility of IC members. They need to possess investigative skills to gather evidence, interview witnesses, and assess the credibility of statements. Training in investigative techniques is valuable for IC members to ensure a comprehensive and fair inquiry.

7. Cultural Competence:

A diverse and inclusive workplace requires IC members to be culturally competent. This involves an understanding of various cultural nuances, norms, and perspectives to ensure that investigations are conducted with cultural sensitivity and awareness.

8. Time Management:

Workplace harassment cases often have strict timelines outlined by the POSH Act. IC members need strong time management skills to ensure that investigations are conducted promptly and that the organization adheres to legal obligations related to timelines and reporting.

9. Documentation and Record Keeping:

Thorough documentation is essential for compliance and transparency. IC members should possess strong record-keeping skills to document each stage of the investigation, including witness statements, findings, and corrective actions taken. Well-maintained records are critical in case of legal challenges.

10. Continuous Learning:

Workplace dynamics, legal frameworks, and best practices evolve over time. IC members should have a commitment to continuous learning, staying abreast of updates in the field of workplace harassment prevention, and regularly participating in training programs and workshops.

Conclusion:

The role of IC members is demanding, requiring a multifaceted skill set to address workplace harassment effectively. By cultivating legal acumen, empathy, communication skills, and a commitment to continuous learning, IC members contribute significantly to fostering safe and respectful workplaces. These key skills collectively empower IC members to navigate the complexities of workplace harassment cases with diligence, integrity, and a steadfast commitment to justice.

Five common myths related to the Protection of Women from Sexual Harassment (POSH) Act of 2013

Five common myths related to the Protection of Women from Sexual Harassment (POSH) Act of 2013, along with their accurate answers:

Myth 1: The POSH Act applies only to women.

Answer: The POSH Act is named primarily to emphasize its focus on protecting women from sexual harassment, but it is not limited to women alone. The Act also covers individuals of any gender who may experience sexual harassment in the workplace. Both men and women are protected under the Act, and anyone can file a complaint if they are subjected to sexual harassment.

Myth 2: The POSH Act is only applicable to formal office settings.

Answer: The POSH Act is not limited to formal office environments. It applies to all workplaces, including offices, factories, shops, educational institutions, NGOs, and any other place where a person may be employed. It also covers employees, interns, and even visitors or third parties who may be subjected to sexual harassment in the workplace.

Myth 3: Only physical harassment constitutes sexual harassment under the POSH Act.

Answer: The POSH Act defines sexual harassment broadly and includes various forms of harassment, not just physical. It encompasses verbal, non-verbal, and physical acts that create a hostile or intimidating work environment. This includes unwelcome advances, comments, gestures, and any other behavior that can be reasonably considered sexual harassment.

Myth 4: The POSH Act only requires the establishment of Internal Complaints Committees (ICCs).

Answer: While the POSH Act mandates the establishment of ICCs within organizations, it also provides for Local Complaints Committees (LCCs) at the district level for workplaces with fewer than ten employees or where the complaint is against the employer itself. The Act ensures that workplaces of all sizes have mechanisms in place to address sexual harassment complaints.

Myth 5: Reporting sexual harassment will negatively impact the victim's career.

Answer: The POSH Act prohibits retaliation or adverse action against anyone who files a sexual harassment complaint. Reporting sexual harassment is a protected right, and the Act emphasizes the importance of maintaining confidentiality during investigations. Employers are legally obligated to ensure that the person who reports harassment does not face any adverse consequences, and their career should not be negatively impacted for coming forward.

It's essential for both employers and employees to be aware of the provisions of the POSH Act and dispel these myths to create a safer and more respectful work environment. Organizations should also ensure that they have proper mechanisms in place to address sexual harassment complaints and that employees are educated about their rights and the reporting procedures.

Tips to create trans-inclusive workplace - Posh Lawyer in Delhi

More than 27000 transgender people participated in a poll in 2015, and the results showed that at least 77% of them actively avoided workplace discrimination. This includes keeping their gender identities a secret, declining to request the use of their preferred pronouns by their employers and coworkers, and postponing gender transition.

Transgender individuals might not be fully present at work. Because they are more likely than cisgender employees to have an uneven working environment, they could feel uneasy or alienated.

Companies should begin implementing nondiscriminatory rules and procedures that are gender-specific. This entails: regardless of their gender identities, defending and advancing the rights of every employee Increasing employee awareness of and acceptance of their transgender coworkers.

To some extent, everyone needs to feel like they belong. It's common for us to evaluate our relationships subconsciously. We experience poor levels of self-esteem and unfavourable sentiment when our social value declines. A social affirmation or appraisal, on the other hand, has the opposite effect. We feel included and valued when we receive praise, gratitude, and approval.

Likewise, transgender employees are accepted and valued in the workplace because to inclusive policies including using proper names and pronouns, having access to toilets that are gender-neutral, and having gender-neutral dress rules.

By creating advantages that are trans-specific and trans-friendly, businesses need to behave as supporters. For instance, helping with mental health services is a fantastic approach to support your transgender staff.

This may also apply to company regulations governing personnel who identify as gender non-conforming. Transgender workers will experience more inclusion at work by doing away with gender-specific jargon and upholding antibias standards.

It's also crucial to increase public awareness about gender identification. Many people lack the fortitude and expertise to question preconceptions and societal standards. Encourage your staff members to step outside their comfort zones and have unpleasant talks with management, especially the leaders. Cisgender employees who speak out against gender-based discrimination and ineffective rules at work provide a positive message of inclusiveness to their transgender coworkers.

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PoSH in Higher Education Institutions in India - Posh Lawyer in Delhi

On July 25, 2022, an Odisha college student accused the school's physics instructor of rape and sexual harassment. The accused lecturer, who was the institution's reader, had also held the role of NCC officer in the Naval wing. Despite the female student coming to the institute with a formal complaint, the school's internal committee did not discover any proof of the claims she claimed. The probe didn't start until the Higher Education Department became aware of the situation.

A Presidency University student from Kolkata filed a formal complaint with the internal committee of the university accusing Mahitosh Mandal, the former head of the department, of sexual harassment on July 17, 2022.

It is believed that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, is essential for protecting female employees from sexual harassment at the workplace. It is significant to highlight that educational institutions play a significant role in this while also including formal and informal workspaces and that the law is not confined to the corporate environment in the formal sphere.

A federal law that forbids sexual harassment of female employees and students in higher education institutions is the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015.

In an effort to make changes, the UGC (Prevention, Prohibition, and Redress of Sexual Harassment of Women Workers and Students in Higher Education Institutions) Regulation, 2015 requires all universities, colleges, and deemed universities to adhere to a set of rules to ensure that the campuses are free from sexual harassment.

In order to prevent gender bias, the term "students" assures that the legislation covers every person registered in a specific higher education institution, regardless of their gender.

An internal complaints committee must be established at every higher education institution in order to address sexual harassment claims. It must be dubbed the ICC and adhere to UGC-mandated rules if a body already exists with this goal.

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NON EMPLOYEE COMPLAINT - POSHADVO - POSH LAWYER IN DELHI

DO YOU HAVE A SEXUAL HARASSMENT COMPLAINT FROM NON-EMPLOYEES  ?

What happens when a Non-employee (female) complains about our employee (male) on Sexual Harassment at workplace? 

To offer an example, on a visit to a non-profit organisation as part of the company's CSR programme, one of the senior executives sexually assaulted a woman from the organisation. He kept inviting her out for drinks and forcing her to visit him in case she needed a company to provide her with more connections and to send more money to her NGO. The Leader had been harassing the women physically.

She complained of Quid-pro-Quo sexual harassment against the leader with the IC of the Multinational Company.  

In the situation at hand, the claimant is not yet bound by any binding obligation and is a CSR partner NGO, while the accused harasser is a employee. The IC picked up the matter and conducted an investigation, concluding that the employee was guilty of the misconduct. He was fired from his role at the firm.

Why did the company IC take up the Inquiry even though the aggrieved woman was not an employee? The POSH Act. under section 2 (a) point 1, 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. 

The key word here is “whether employed or not”. Hence the definition covers not only women employees at the workplace but also for those who enter / interact with the organization as clients, customers, students, prospective candidates for interviews, daily wage workers or in any ad hoc capacity. Hence it is not always necessary for a woman to be under a contract of employment with the workplace to complain of sexual harassment at workplace.  

However, the alleged harasser has to be an employee of the company for the IC to take up the complaint and investigate the matter . 

The aggrieved woman (who is not an employee) would be expected to attend all investigation hearings. She is entitled to all records related to her complaint, including the other party's and witnesses' claims, documentation, and evidence.

She also has the right to cross-examine all of the people involved, including the accused harasser and his witnesses. She will also receive a copy of the IC's final inquiry report, which will include full details of the investigation, as well as conclusions and recommendations.

Employers and individuals in this situation must follow Section 16 of the Act and keep information private. 

However, since the woman who has been wronged is not an employee, she will not be entitled to temporary relief. Second, if the IC should show that the report was misleading or filed with malice, the IC is unable to suggest corrective action.

Please be aware that sexual assault by your employee against an aggrieved woman who is a non-employee that occurred during the course of work falls under the authority of the Internal Committee, and any reasonable efforts should be made to investigate the matter and bring restitution to the victim.

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POSH CHECKLIST - POSHADVO - POSH LAWYER IN DELHI

The Internal Complaints Committee - Checklist for Efficient Working

Section 4 of the Prevention and Prohibition of Sexual Harassment of Women at workplace Act provides for the constitution of an ICC or the Internal Complaints Committee. Any organisation that has 10 or more employees need to constitute a Committee to address the complaints related to Sexual harassment. Integrity and impartiality of the ICC is ensured by presence of an external person as a member of the ICC. The ICC shall have minimum 4 members out of which the head of the committee shall be a woman. 50% of the members nominated for ICC must be women. In an organization, only an ICC has the power to investigate complaints of sexual harassment. They have been vested with the power of a civil court. They need to complete certain activities that are mandatory as per compliance. 

We Bring to you a comprehensive checklist to assist to comply with the requirements. 

• Receive complaints in the form and manner prescribed.
• Render assistance to the complainant if he/she is unable to make the compliant in writing. 
• Any aggrieved person needs to file a complaint of sexual harassment within 3 months of the last incident. However, the period in which one can file the complaint can be extended by you for a further period of three months. Record in writing the reasons for granting such extensions.
• Upon receipt of the complaint, inform the complainant of his/her rights under the Act and Rules, without influencing her decision in any manner with respect to the complaint. 
• Before initiating an inquiry into a compliant you may offer conciliation between the parties. If the complainant decides and requests conciliation you can settle the matter through conciliation. Please remember, in case of conciliation, that there can be no monetary settlement.
• When a settlement is arrived through conciliation, record the terms of settlement and provide the copy of the same to the employer, the complainant and the respondent.
• In case the complainant has not requested for conciliation –or- when the requested conciliation fails, you should proceed with a proper investigation into the complaint.
• You must ensure to record in writing all proceedings of the investigation. 
• While conducting the investigation, you are vested with the powers equivalent to a civil court with respect to i) summoning and enforcing the attendance of any person and examining him/her on oath, ii) discovery and production of documents and iii) any other matter which may be prescribed. 
• You must complete the inquiry within the stipulated 90 days from the receipt of the complaint.
• During the pendency of the inquiry, upon the request made by the complainant, you may recommend to the employer certain interim measures aimed at ensuring that the complainant does not have to face any inconvenience, hostility and reprisals at workplace in connection with the complaint. Such interim measures may include transfer, leave etc. as set out in section 12 of the act. 
• You should provide a report of the findings within the stipulated time of 10 days from the completion of the investigation. The report needs to be sent to the employer and the relevant concerned parties. 
• On conclusion that the allegation against the respondent is not proved, recommend to the employer that no action be taken against the respondent. 
• On conclusion that the allegations against the respondent have been proved then recommend to the employer to act against the respondent pursuant to sections 13 and 15 of the Act.
• On conclusion that the complaint was a malicious complaint, then recommend to the employer to act against the complainant as per section 9 of the act. 
• On conclusion that any witness has given false evidence, then recommend to the employer to act against such witness. 
• Keep confidential all information and records including identity of complainant and respondent, details of the complaint, investigation by the ICC and actions taken by the employer during and after the conclusion of the investigation.
• At the end of the year (December) prepare and submit to the district commissioner and to the management an “Annual Report” which should include the details of the compliant and its findings along with all the other details as prescribed in rule 14 of the Act

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