Five Ways Indian Law Can Help Mitigate the Risk of Sexual Harassment at Workplace

Written By Suruchi Kumar, 🖊  edited  by Varna

Sexual harassment at workplace is real, it happens all the time in most places and needs to be acknowledged. It needs to be dealt with and  needs to be uprooted from our workplaces so all employees can  work with dignity and respect. Ignoring instances of sexual harassment or discouraging employees to come forward only serves to be counterproductive since it only compounds the problem.

Under the Indian legal regime, sexual harassment of women at workplace is an offence and an exhaustive procedure to deal with such offences has been set out under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, in the workplace context these are usually called PoSH Law. The law however sits squarely in the space of redressal, what does Indian law say about prevention and mitigation of sexual harassment at workplace?

From the legal point-of-view there are a few simple things that any firm can undertake to both prevent and mitigate the risk of sexual harassment for employees, in this article we will discuss five such measures;

Create and Encourage a Zero-Tolerance to Sexual Harassment Work Environment

Sexual harassment is fundamentally a social, economic and cultural issue influenced by the dynamics of power between genders. It is about deep rooted biases, power play and clear lack of understanding between what constitutes potentially  harmless behaviour versus harassment.

A healthy and respectful work environment where every employee has enough to do, is where  such issues do not arise. Thus in order to actually defeat sexual harassment at the workplace – Implementing and complying with law is important but far from a sufficient condition. If an organisation perpetuates a culture of sexual harassment no law can help in isolation.

To counter a perverse culture engage employees in discussions to be respectful towards one another.  Discussion on gender issues, openness about how to tackle stereotypes and the concept of consent are few areas where an employer can choose to focus discussions. A healthy work environment will automatically drastically reduce any instances of sexual harassment. Additionally, an employer in all its policies/ manuals must make its intent clear that harassment will not be tolerated at the workplace and will be met with strict action as per law.

Formulate a robust anti-sexual harassment policy

It is duty of an employer under the PoSH Law to draft and widely disseminate a policy stating measures put in place to prevent, prohibit and redress instances of sexual harassment at a workplace. Many robust policies by way of examples and illustrations aim to promote a safe space for all genders and endeavour to remove factors contributing to a hostile work environment.

A good workable policy is the first step to mitigate instances of sexual harassment. The intent of a policy is to guide  stakeholders on what constitutes sexual harassment, what is a workplace, who can file complaints, what the complaint procedure is, how an  investigation takes place and also, most  crucially, the assurance that all processes will handled with utmost confidentiality and fairness.

Sensitize your employees and train your Internal Committee members

India is a diverse country, candidates from all around the country with different sorts of upbringing and mind-sets come together in search of job opportunities. These varied cultural backgrounds also means that different people perceive boundaries, consent and touch in different ways. This is why it is essential to apprise employees on appropriate and inappropriate behaviour at workplace.

It is also equally essential to apprise employees on action, intention and perception. The PoSH Law obligates an employer to conduct sensitisation and awareness sessions at regular intervals for this  purpose.

Similarly, members of a company’s IC may not know the letter of the law, its nuances, the  complaint mechanism, correct investigation procedure, punishments for malicious complaints, punishment for instances of harassment and the wide ambit of the term ‘sexual harassment’. PoSH Law provides for the training and capacity building of IC members. A sensitised employee along with an educated IC  which does its job assists an employer in maintaining a respectful and productive workplace.

Non-retaliation/ Victimisation:

It does not make sense to have a policy or an Internal Committee or indeed any mechanism under law put in place, if an employee coming forward with a complaint is retaliated against. Employers need to understand the consequence of retaliating against a complainant, perceived victimisation does not merely affect the person seeking redressal it also affects the morale of employees as a whole. Most cases of sexual harassment are filed in distress which only increases if the complainant is victimised. Distress leads to reputational loss in the industry as victimised complainants often breach confidentiality and approach media or lawyers in desperation and frustration.

While it is not strictly mentioned under PoSH Law a principle of justice that applies to all law is that  no one should be made to feel guilty because they stood up for themselves, no matter however small or big it may be. Confidentiality is  key to the implementation of the PoSH Law and thus breaching confidentiality even within a workspace, defeats the entire objective of the PoSH Law.

If this happens at a workspace, taking swift action against those who breach confidentiality, can do wonders to restore trust in management

Confidentiality and Fair Procedure:

Given the sensitivity of cases, confidentiality is an important feature of the PoSH Law. In fact breach of confidentiality is a punishable offence under the law. It is interesting to note that most employees fear unfair procedures and being the talk of the workplace and therefore do not come forward with  complaints and quietly resign. While this is good on paper because such an organisation will show NIL cases, the truth is that good employees leave and employees who harass remain causing harassment to remain in perpetuity.

It is also incorrect to believe that instances of sexual harassment remain office secrets, instances of sexual harassment do make it outwards creating cascading damage to the reputation of a company affecting potential employees too. Every policy and document of the company and Internal Committee should demonstrate how strictly confidentiality is adhered to.

It is not enough to just “comply” with the law. To comply with PoSH law in more than just letter but also in spirit requires an employer to understand internal systems, learn from existing/ past examples and adopt rigorous methods to tackle sexual harassment in the future. A hands-on approach goes a much longer way than an ignorant one.

About the author: Suruchi Kumar is a Labour Law practitioner and works as a consultant with Ungender Legal Advisory

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.