How to draft a Gender-neutral PoSH Policy?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) (PoSH) Act, 2013, came into force in December 2013 to prevent, prohibit, and redress acts of sexual harassment against women in workplaces. The mandate of the Act extends to all organizations with 10 or more employees.

All organizations must be committed to providing a nurturing and safe working environment to all their employees and associates. The organization must strive to establish a workplace that is sensitive to gender diversity and recognizes the role of employees of all genders as equal players, change agents, and leaders. An important step towards achieving this is drafting an inclusive gender-neutral PoSH policy for the organization.

Why does the PoSH Act protect only cis-women?

While the Act protects cis women explicitly, it also provides a redressal mechanism to men who have been accused falsely of sexual harassment in the workplace. The penalty for women who file a false or malicious complaint and the guilty is the same. The PoSH Act further provides an equal opportunity of being heard to the accused as well. 

Although the ground reality, as in most cases, differs from the codified law, the Internal Committee (IC) is legally bound to decide a complaint on the basis of the principles of natural justice.

However, under the Act, only women can be complainants. Judicial precedents have enabled transwomen to file a complaint under the PoSH Act, but no amendment to the Act has been made to that effect. In no circumstances will the Act extend its scope to employees of other genders to be complainants. Under the PoSH Act, it is explicitly stated that men can only be the perpetrators of sexual harassment in the workplace and not the victim. 

A probable reason for the PoSH Act to not cover men under its ambit might be that primarily women have endured sexual abuse, discrimination, and gender bias in the workplace. Regardless, it will be safe to say that the possibility of including people of other gender identities has never been considered so far.

It is also important to note that men form the majority in the workplace, particularly in the senior positions of the organization. Men have been occupying positions of power and decision-making way before women even started joining the workforce. Women and people of other gender identities are still fighting their way through hierarchical barriers and the glass ceiling.

One can agree that anyone can be subject to sexual harassment in the workplace, including cis men. It cannot be denied, however, that there are certain minorities who are more vulnerable to sexual harassment and discrimination in the workplace.

Also Read: Can a trans person file a workplace sexual harassment complaint?

What is the status of gender neutrality in the PoSH Act?

Many critics of the PoSH Law have debated its gender discriminatory nature. The Act is expressly applicable to cis women only. Moreover, it only provides them with a redressal mechanism and the safety concerns of the rest of the employees are left unaddressed. 

Presently, there is no codified system for the redressal of sexual harassment complaints filed by employees of other gender identities. It is often argued that the inherent nature of the PoSH Act encourages discrimination in the workplace. The Act’s amendment is far overdue. It needs to be explicitly inclusive and increase the scope of its applicability to other genders as well.

This will increase the trust of the employees and build their confidence in the organization. It will also help minimize any existing apprehension that employees of other genders have about the PoSH Act. Employees of the LGBTQ+ community will also welcome this decision as they will have a redressal mechanism for their complaints.

So far, there is no indication of an amendment in the PoSH Act to codify its applicability to all employees regardless of their gender and a  redressal mechanism for their complaints of sexual harassment.

Furthermore, the critics are also wary of the presumption of guilt in cases of sexual harassment in the workplace. Since the applicability of the Act extends to cis women only the bias against men exacerbates further. False and malicious complaints add fuel to this narrative. The Act, however, takes such complaints into consideration and also provides a redressal mechanism for the same.

A guide to drafting a gender-neutral PoSH policy

While the PoSH Act needs amendments to address the concerns of people of all gender identities, there are still ways in which an organization and employer can ensure a safe workplace for all its employees irrespective of their gender identity. 

Objectives of a gender-neutral PoSH policy

The objectives of a gender-neutral PoSH policy should be:

• To embrace the right to equality enshrined under Article 14 of the Constitution, and the right to decent living under Article 21.
• To nurture a working environment that is socially and psychologically open and inviting for people of all gender identities, and
• To endeavor for gender justice on all institutional levels.

The preamble to the PoSH policy

A PoSH policy of an organization can be gender-neutral. In the policy, the organization can include a statement expressing no tolerance for the sexual harassment of employees of all gender identities. For instance:

“The present policy is compliant with the PoSH Act, 2013 and its accompanying Rules. [Company Name] has moved a step forward in recognizing and addressing the concerns of all vulnerable minorities including employees of all gender identities. In that manner, the PoSH policy of [Company Name] is gender-neutral.”

The policy must encourage every employee to report any and all incidents of sexual harassment in the organization.

Recognize the rights of all employees

Discrimination against people of different gender identities manifests into sexual harassment in the workplace. It violates numerous fundamental rights of the employees. These include the fundamental right to equality, prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth, and the right to life. These rights are guaranteed under Articles 14, 15, and 21 of the Constitution of India.

Increase awareness about workplace culture

The organization’s policy must strive to make all its employees aware of nurturing workplace culture. The policy should include a firm statement on the prohibition of the sexual harassment of all employees and not just cis women. For instance: 

“The policy prohibits sexual harassment in the workplace. The policy requires that all employees, partners, and associates of [Company Name] be sensitive to cultural differences. They should be mindful of their behavior towards the people they interact with in the workplace and in a work situation. Everyone in the workplace should recognize the cultural diversity and varied sensitivities of people. The policy discourages all acts and behavior that appear unnecessary to a person of ordinary prudence. The employees, partners, and associates of [Company Name] shall not act or behave in a manner that transcends the boundaries of cordiality expected in the workplace.”

The policy must also recognize that a perpetrator of sexual harassment can be a person of any gender identity.

Strict action against false complaints

The policy should also state the organization’s firm stance against false and malicious sexual harassment complaints. For instance:

“[Company Name] strictly prohibits making a false sexual harassment complaint or providing false or misleading information in relation to a complaint. The same shall be treated as a misuse of the policy requiring strict action.”

Also Read: 4 Reasons why India needs LGBTQIA+ friendly Employment Laws

Recommendations

An imperative step that organizations can take is to be as inclusive as possible in drafting their PoSH policy. The definitions, particularly, must include all employees within their ambit. While defining a complainant in the policy, the organization must ensure that all employees, and not just cis-women, are covered in its ambit. Further, instead of adopting the term ‘aggrieved woman’ as stated in the Act, the policy must use the term ‘aggrieved person’ to increase the scope of policy and make it gender-neutral.

Ungender is a knowledge and technology advisory. We help companies achieve an inclusive and employee-first culture through data, law, and tech. For a safe and inclusive workplace, write to us at sidra@ungender.in.