Adopting a Gender Neutral POSH Policy

What is Gender Neutrality under the POSH Act?

Historically, the brunt of discrimination, sexual harassment and gender bias has been faced by women. World over, and specifically in Indian society, patriarchy is a frontrunner, be it in a personal or a professional setting. At the workplace, men typically assume roles in senior management and comprise the majority - all valid reasons to ensure the protection of women.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), as the name suggests, was enforced to protect women at the workplace. However, in today’s day and age, the idea of gender is blurring. Therefore, what is construed as sexual harassment, sexual misconduct, who perpetrates sexual harassment or sexual misconduct towards whom, and, with gender inclusivity becoming the norm, these are widely discussed topics amongst most organisations. In light of this, HRs across the board are questioning whether their internal POSH policy is gender neutral.

Generally, critics of the POSH Act have often reiterated that the law discriminates on the basis of gender, owing to its applicability only to cis women. So what about the concerns of employees identifying with other genders?

While the need for a gender neutral POSH policy is not presently codified, it is argued that as a best practice, organisations should implement one so that members of all genders can file a sexual harassment complaint in case of an incident of sexual harassment.

What do we mean by a gender neutral approach to POSH?

Sexual harassment at the workplace can take place with anyone belonging to any gender.

Does the POSH Act focus only on Women?

While the POSH Act explicitly protects aggrieved women, it provides men with a redressal mechanism to plead their case in the event of a false or malicious accusation. It provides all persons an equal opportunity to be heard, in line with the principles of Natural Justice.

Case Study 1

A cisgender woman in a higher position of power tries to force herself upon a bisexual man in a junior position without gaining their consent, by telling them that she could ‘out’ them to the workplace if they do not give in.

In this case, who can the junior complain to?

Case Study 2

A gay male employee in an executive position sends inappropriate photographs of himself to a junior male employee even after the junior employee has confronted the senior and asked him to stop.

In this case, who should the junior approach to file a complaint?

Complaint Filing & IC Jurisdiction

●????Male Employees

●????Transgenders

A current drawback of the POSH Act is that a complaint can only be filed by an aggrieved woman under the POSH Act. In fact, in Anamika v. Union of India & Ors., the Delhi High Court ordered the police to investigate a matter concerning sexual harassment faced by a transgender, but only because she identified as a woman and had a legally authorised identity certificate to prove it. In this case, the transgender was accorded the same rights as a woman under the POSH law.

Presently, the POSH Act does not cover men or transgender men under its ambit, and therefore, an IC does not have jurisdiction to preside over a complaint filed by either. However, transgenders can seek protection under the Transgender Persons (Protection of Rights) Act, 2019 (TP Act) whereby organizations are required to appoint a Complaints Officer to deal with sexual harassment or discrmination faced by transgender persons.

Guide to Drafting a Gender Neutral POSH Policy

The POSH Act does not mandate that an organisation’s POSH policy needs to be gender neutral. However, there are other strategies that employers can adopt to make employees feel safe and comfortable in their working environment, in a gender neutral manner. One way to do that is by incorporating a gender neutral POSH policy. For example, many companies in India have adopted a POSH policy which clearly states that it is gender neutral and therefore, is based not just on the POSH Act, but on principles of Articles 14, 15, and 21 of the Indian Constitution. These Articles take into account a person’s right to equality, life, personal liberty, and discrimination.

Primarily, a gender neutral POSH policy should:

-?????Embrace equality as enshrined under Article 14 of the Indian Constitution.

-?????Nurture a healthy and safe working environment which invites members of all genders.

-?????Promote gender justice on all fronts.

-?????Address concerns of all persons including vulnerable minorities or those with other gender identities.

-?????Encourage employees of all genders to report incidents or occurences of sexual harassment and misconduct.

-?????Recognise each employees’ rights so as to foster an environment free of discrimination.

-?????Enunciate on the workplace culture in terms of diversity and sensitivity.

-?????Adopt a strong stance towards false and malicious complaints.

Recommendations & Way Forward ????

Amendments to the POSH Act are due, especially considering the need for organisations to create a safe working environment for persons belonging to all genders. The need of the hour is for the POSH law to provide justice not just to the ‘aggrieved woman’ but to any ‘aggrieved person’.

While most organisations adopt the principles of diversity & inclusion, they need to increase the applicability and scope of sexual harassment to all genders as well.

SHLC is experienced in advising organisations on how to implement the POSH Act internally, especially with respect to handling sensitive situations that arise on account of gender. SHLC is also equipped to train your IC on how to handle complaints filed by members identifying with/belonging to all genders.

Inclusivity is the need of the hour and, at SHLC, we promote drafting and implementing a legally abiding POSH policy that is also respectful and neutral towards all genders.

Book a consultation with SHLC today. Reach us at [email protected] or call us on +91-9625392040.

Note – This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace.