POSH Act Explained: Legal Protection & Filing a Workplace Harassment Case in India

A workplace must safeguard dignity, safety, and recognition of one’s contribution. Regrettably, many, more often than not women, are still battling for dignity, respect and safety in respect of their career development and mental health when an organization’s workplace culture promotes sexual harassment. In order to address this issue, the government of India put in place the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or POSH Act, which makes every employee, namely all women, responsible to identify and use the workplace environment which is assessed as safe. This strongly worded and clear law has a method for sexual harassment prevention, a process of reporting sexual harassment, and a path for responding to sexual harassment.

Understanding Workplace Harassment

Workplace harassment is defined as any unwanted behavior, whether physical or verbal, that creates an uncomfortable, intolerably, or intimidating work environment. The POSH Act, 2013 focuses on sexual harassment aimed at women at their work stations. 

Sexual harassment may include any of the following: 

• Unsolicited physical contact or advances; 
• Requests or demands for sexual favors; 
• Remarks, comments, or jokes that are sexual in nature; 
• Displaying or engaging in pornographic or inappropriate material; 

It is of paramount importance to note that harassment does not necessarily have to occur as a result of physical action. Verbal, emotional or even non-verbal acts (such as hitting, looks, gestures or by means such as text messaging) may escalate to become harassment if not invited by the woman and creates a situation where the woman feels unsafe.

Harassment can take place in any space related to work, not just in the office. Examples include during meetings, office parties, work travel, email/ message correspondence etc.

In addition, harassment is not the same thing as a typical workplace disagreement. A typical disagreement, or even a professional disagreement that consists of feedback or critiques if done professionally and respectfully, is not harassment. Any action that crosses the boundary and is unwanted, whether verbal or physical, may be subject to legal action under the POSH Act.

Overview of the POSH Act, 2013

The POSH Act serves three roles.

1. Prevention– It requires that the employer develop a preventive framework to sufficiently deter sexual harassment in accessible workplaces. This could include some degree of sensitization of employees, developing policies and initiating workshops around sexual harassment. 
2. Prohibition– The Act provides a clear definition of sexual harassment and prohibits sexual harassment in the workplace.
3. Redressal– The Act supports complainants in lodging complaints and guarantees support for the complaint process to facilitate justice for the aggrieved while discouraging against retaliation.

This law applies to all workplaces, public, private, formal or informal, including any woman who is a contract employee or who is at a location related to her work. Examples of workplaces include private and government offices, NGOs, educational institutions, and home or domestic work.

One key aspect of the POSH Act is its emphasis on the creation of a harassment-free work environment for women, thus imposing significant responsibility on employers to create a workplace free from harassment and also to take prompt action upon receipt of an incident report.

Key Definitions under the POSH Act

The POSH Act outlined various definitions to facilitate a better understanding of the definitions when the Act is applied. It is important for both employer and employee to understand definitions because they tell both parties, and more specifically the employee, what constitutes harassment and who is entitled to coverage under the Act. The more significant definitions found in the POSH Act are as follows:

Sexual Harassment (Section 2(n))

Sexual harassment is defined as any unwelcome act or a behavior which is sexual in nature with the purpose or effect of: 

• Abuse a woman’s dignity
• Create an intimidating, hostile, or offensive work environment
• Interfering with her work performance 

The Act specifically identifies behaviors such as unwelcome physical contact, sexually suggestive remarks or advances- or any act that could be degrading, sexual in nature, or inappropriate.

Workplace (Section 2(o))

A workplace is broadly defined as any place at which a woman carries out her work-related tasks. A workplace includes physical office space as well as all other environments related to work, which can include, but not limited to: 

• Travel for work (business travel)
• Event for work (conferences, meetings, seminars, etc)
• Virtual workspace (emails, video calls, social media communication)

The workplace can also include contracted workers, interns, and volunteers, so these definitions extend to those individuals for protection under the POSH Act as well.

Aggrieved Woman (Section 2(a)) 

An aggrieved woman is defined as a woman who has been sexually harassed at the workplace. Women of all age and all work situations – permanent / temporary / contractual and whether she is in a managerial or supervisory position qualify as aggrieved women.

Employer (Section 2(g)):

An employer is defined as any person who owns or controls or is responsible for the settlement of an organization. An employer could be a person or an organization, who is responsible for the workplace safety of women employees in the organization, and can also address any complaints for harassment from the employees. The employer also has the responsibility to form an Internal Complaints Committee (ICC), to address complaints related to harassment. 

Internal Complaints Committee (ICC) (Section 4):

An Internal Complaints Committee (ICC) is a body of a company formed by the employer, for every organization with ten or more employees and has been established for complaints of sexual harassment and investigate them in the organization assuring that the inquiry process is fair, just, and providing the redressal from the complaint.

Constitution and Role of Internal Complaints Committee (ICC)

The Internal Complaints Committee (ICC) is one of the most significant aspects of the POSH Act and is required to be constituted in all organizations with 10 or more employees, playing an important role in complaints prevention and resolution of sexual harassment at workplace. 

Composition of ICC

To ensure the ICC meets its objective of a fair and unbiased process for resolution of the complaint, the POSH Act has specified composition requirements for its members which include:

• Chairperson:  The chairperson of the ICC must be a woman employee of the organization. This readily allows the objective of the POSH Act to have a woman in leadership of the ICC, thus creating a “safe space” for woman employees.
• At least Two Members from the Organization: The ICC should consist of at least two members from inside the organization, preferably women employees, who have the proper knowledge of the workplace policies and issues surrounding sexual harassment. They should also be well-trained in relation to the nuances of sexual harassment reporting.
• One External Member: At least one external member of the ICC must be designated, ideally someone with experience in matters related to sexual harassment, possibly someone who is a lawyer, social worker, or an employee of a non-government organization working on women’s rights. This external member brings a new layer of unbiased consideration, and it adds to an environment of impartiality and fairness in the investigation process.
• The Employer/HR Representative: A high-level employer representative or HR representative is included heavily invested in committing the organization to providing a safe workplace and being implicated in undertaking any necessary action based on the recommendations of the ICC.

Duties and Authority of the Internal Complaint Committee (ICC) 

The ICC operates as an effective committee within its professional capabilities in various aspects of task: 

• To receive complaints: The primary role of the ICC is to receive complaints made by women employees alleging that they have experienced sexual harassment at work. The complainant must submit the complaint in writing; if the complainant cannot write, the committee can assist in making the complaint in writing. 
• To investigate a complaint: Where the ICC receives a written complaint, the committee will hold an impartial investigation into the allegations of the complaint. The committee is able to call upon both the rights of the complainant and the respondent, and other witnesses or non-witnesses for corroboration. The committee may also take into account evidence and obtain relevant information to exhaust the investigation process. 
• To grant interim relief: The ICC has the power to provide interim relief to the complainant during the investigations. The legal relief may include: 

1. Issuing a leave of absence to the complainant without pay. 
2. Transferring the complainant or the respondent to another location or department.
3. Creating alternative work assignments for the complainant, avoiding further encounters with the respondent.

Filing a Complaint under the POSH Act

The process of filing a complaint under the POSH Act is simple, but it is important to follow the correct process to ensure that the complaint can be resolved effectively and efficiently. A simplified process of filing complaints has been established to allow women to report harassment with confidentiality, while facilitating the safety of the woman along with reducing concerns surrounding safety and retaliation.

Filing a complaint procedure

1. Time Limitation for Filing: Complaints must be filed within three months of the occurrence of the sexual harassment incidents. For continuous harassment incidents, the complaint must be filed within three months of the occurrence of the last incident of harassment. There may be exceptional cases where the Internal Complaints Committee (ICC) could accept complaints filed after the time limitation based on justifiable reasons.
2. Written Complaint: The complainant must file an incident report setting out the individual claims of harassment incidents, all pertinent incidents of harassment taking place, and names of any witnesses. The incident report, sometimes referred to as an internal complaint report, ft us filed with the Internal Complaints Committee (ICC). If the complainant cannot write the report, the ICC can assist the complainant in the writing process.
3. Filing a Complaint with the Local Complaints Committee (LCC): If your workplace has less than 10 workers, or if the workplace does not have an ICC, you may file a complaint with the Local Complaints Committee (LCC) at the District level. The LCC is similar to the ICC, and the LCC is for smaller or unorganized workplaces. 
4. Complaint Details:
   • Complainant’s name and contact information 
   • Description of harassment (date, time, location, type of harassment)
   • Name of the accused and any witnesses’ names 
   • Any evidence (email, text messages, recordings, etc.)
5. Notification of a Complaint: When the ICC or LCC receives the complaint, it must notify in writing the complainant that it received the complaint within 7 days and decide if an inquiry is to be conducted. When the complaint has been made, it must conduct the inquiry within 7 days. 
6. Help Potentially Available to File: If the complainant has difficulty with filing regarding the legal issue, thinks she will need a lawyer to assist her or knows of an NGO working on women’s rights she can seek help from a trusted co-worker, NGO or lawyer.

Outcomes, Penalties, and Appeal

Upon conclusion of its inquiry, the Internal Complaints Committee (ICC) or Local Complaints Committee (LCC) will render a decision – based on the evidence presented and the findings of the inquiry. The resulting decisions can range from a reprimand or warning against the accused and/or compensation for the complainant, depending on the nature of the case.

What Happens to the Harasser? 

If the complaint is found to be true, the harasser can have strict consequences, a reprimand, suspension (from duties or activity), a demotion, or even termination from office (for serious misconduct). The punishment of a harasser is applicable to a varying degree of harm experienced by the victim. 

What Compensation Can the Victim Obtain? 

The complainant may obtain damages for any number of reasons, including but not limited to emotional distress, medical attention, loss of wages, and possibly even counseling. The award of damages shall be dependent on the severity of the harm experienced by the complainant. 

Employment Consequences / Penalties for Employers 

If the employer has not set up an Internal Complaints Committee or follows an internal complaint, the penalty is ₹50,000. If the employer continues to disobey, it could lead to greater penalties, up to and including a business violation.

The Right to Appeal

If a complainant, or an alleged perpetrator, is unhappy with a decision made about a complaint, then the offending party can seek action by making an appeal to the Appellate Authority within 90 days of the original decision. The Appellate Authority will then assess the same circumstances and can decide whether to change the decision.

FAQs about POSH Act Explained