The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. How to deal with diversity at workplace. Conducting enquiry in compliant cases. Equitable justice. Vishaka Judgement and development thereafter.

1. By Hitesh Kumar Singh
https://in.linkedin.com/in/lawyerhitesh
Prevention of Sexual Harassment
at Workplace

2. Unwelcome Behaviour towards
Gender Diversity

3. Evolution of Prevention of Sexual Harassment
Act
POSH = The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
Vishaka
Judgment
POSH Act
Indian Penal
Code
Constitutional
Rights

4. Various Constitutional Provisions for
Gender Equality
Article 14
Article 16
Article 21
Article 42
Article 15 (1) & (3)
Article 19 (g)
Article 39(d)

5. Indian Penal Code safeguards against
Gender Harassment
Obscenity
Criminal Force or
Assault Intended to
outrage modesty
Sexual
Harassment
Rape
Intent or
compelling a
woman to disrobe
Stalking
Word, Gesture or
Act Intended to
Outrage Modesty
of women

6. Vishakha Judgement - 1997
Supreme Court acknowledged that:
Sexual harassment is a human rights violation
Sexual harassment is a violation of the constitutionally guaranteed fundamental
rights:
 Articles 14 and 15: Right to equality
 Article 21: Right to life - to live with dignity
 Article 19(1)(g) - Right to practice any
profession/trade/occupation/business, i.e., a right to a safe environment free
from harassment
The Judgement prescribed the guidelines and pursuant to the same The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 was enacted.

7. The Sexual Harassment
of Women at Workplace
(Prevention, Prohibition
and Redressal) Act, 2013

8. Who is an ‘Employee’ under POSH?
Regular, temporary,
ad hoc employees
Express/implied terms
of employment
Directly/through an
agent/contractor
With or without
remuneration/voluntary
Probationer/
apprentice
Employee

9. Who is the ‘Employer’?
Management
SupervisionControl
Employer

10. Employers Obligations
Safe Work Environment
Aggrieved Employee
Assistance
Employee Sensitization
Harassment treated as
misconduct of service
rule
ICC Orientation
Timely submission of report to
DO
Assist Enquiry
ICC/ grievance redressal
mechanism

11. The ‘Workplace’
Government
owned/controlled
Establishments
Private sector
organisations
Sports
institutes,
stadiums, training
Institutions
Hospitals/
Nursing homes
Vocational/
Educational
Institutions
Dwelling place in
case of a domestic
worker
Workplace

12. The ‘Workplace’
Any place visited by
an employee
Any place visited by
an employee
Arising out of
Employment
During
course of
Employment

13. “Sexual Harassment”
Showing
Pornography
Unwelcome physical,
verbal or non-verbal
conduct of sexual
nature
A demand or
request for sexual
Favors
Physical contact
and advances
Making sexually
colored remarks
Sexual
Harassment

14. Examples:- Sexual Harassment
Physical
Verbal
Non-
Verbal
Touching
Standing close
Brushing up
Blocking Path
Unwarranted gifts
Sexually suggestive
visuals
Making Sexual
gestures
Whistling
Cat calls
Sexual jokes
Innuendos
Personal questions

15. Circumstantial:- Sexual Harassment
Quid Pro
Quo
Hostile Work
EnvironmentPreferential
Treatment,
Detrimental
Treatment,
Threat to present &
future employment
Humiliating
Interference
Intimidating
Job Threat

16. Internal Complaints Committee
Women
Presiding
Officer
Members
NGO Rep
½ of the members
of the ICC to be
women.
One member from
an NGO/other
women
organizations
A senior women
employee.
Not less than two
members experienced
in social work or have
legal knowledge.

17. Powers of ICC
FinalInterim ICC
Transfer,
3 Months Leave
Recommendation,
Determination of
Compensation,
Prohibition of Publication,
Annual Report

18. Complaint Lodging
Complaints IndirectlyDirectly
By Complainant
within 90 days of incident,
Complaint with 6
copies+supporting
documents,
Witness details
Phsical incapacity
Mental Incapacity
Dealth

19. Investigation
report to
management
Conduct
Investigation
Communicati
on by
management
to aggrieved
Action to be
undertaken
Facilitate
conciliation
at the
request
Interim Relief
Assess
Allegation
Receive a
complaint
Investigation Flow

20. Grievance Redressal Process
Incident of Sexual
Harassment
Complaint made to
ICC/LCC
Settlement
Not monetary;
ICC to record
settlement and
forward to LCC and
parties
No further
inquiry
INQUIRY
Reasons for delay to be
recorded in writing
Beyond 3 months
3 months
Employee
requests for a
settlement
No
settlement
Employee does
not request for
settlement
Beyond
3
months
Complaint to
the Employee
forwarded
within 7 days
Accused reply
(evidence & docs)
within 10 days of
notice receipt

21. Grievance Redressal Norms
Inquiry
Principles of
natural justice
to be followed
Inquiry report to
be submitted to
the Employer and
the parties
No action to be taken;
Assessment of
whether charges are
false/malicious
• ICC/LCC to inquire into
whether the allegations were
made with a malicious
intention.
• Inability to substantiate the
complaint or provide
adequate proof doesn’t not
amount to malice.
Punishment as
per service rules;
Monetary penalty
payable to the
aggrieved woman
Appeal to
court/tribunal
Allegation
not proved
Allegation proved
[within 60 days]
90
days

22. Principle of Natural Justice
To conduct the inquiry in fair and just manner
Justice
Nature
Common
Sense
Law
Human
Rights
Divine
Law

23. Justice should not be only be done but seen to be done
3 Principles of Natural Justice to be adhered
fairness
Reasonable
ness
Rule a/t
Bias
Opportunity of Hearing
Pecuniary Bias
Personal Bias
Policy Bias Speaking Order
PNJ

24. Challenges in Sexual Harassment
Investivation
Uncovering tangible
Evidence
Maintaining Confidentiality
Human Elements & Sensitiveness
Verification of facts
Presenting Unbiased
results
Maintaining chain of
custody
Challenges

25. Predators at work often target the ‘good girls’-
the ones most likely to remain silent
Speak Out

26. ZERO
TOLERANCE
ZONE