Giveaways for Employers while understanding inadequacies in the POSH laws

The Sexual Harassment at Workplace Act, 2013 vide section 19 (c) along with rule 13 of the Sexual Harassment at workplace rules 2013, mandates the duties of the employers which include “organizing sensitization and awareness sessions for their employees at regular intervals”. This brings out a glaring irregularity in the mandate of law, i.e.;-

i) Absence of a mandate in law for conducting anti-sexual harassment training and sensitization for the senior and managerial staff in the organization;

ii) Absence of a proper definition of “regular intervals” which often confuses employers vis-a-vis the frequency of conducting sessions, thereby causing a glitch in proper implementation which renders compliance ineffective.

 The law systematically ignores a mandate, which should otherwise encompass even the senior most members of an organization. This becomes even more important in the recent developments in which the Hon’ble CJI was allegedly involved in the Sexual Harassment of an employee of the Supreme Court of India. While the Act covers the employees of a myriad of organizations (ranging from ministries, private limited companies, PSU’s, partnerships, LLP’s etc.), it fails to include within its ambit, so as to speak, the men and women at the top.

While Quid pro quo or “this for that” is a well recognized type of sexual harassment which rests on the pretext of a power imbalance, ignoring the sensitization and awareness of the senior and senior most staff in terms of Sexual Harassment prevention in organisation’s is wholly contradictory to what the POSH Act strives to achieve, i.e. nipping Sexual harassment from its bud at the workplace. Even though, absence of such a mandate does not in any way immunize the managerial and senior most staff from the inquiry proceedings of the Internal Complaints Committee of the Organisation, should a complaint be filed, however, without awareness and sensitization, how well informed and equipped the management really is to understand, tackle and be mindful of the various nuances of Sexual Harassment? This inadequacy in the law does not have to necessarily mean that organizations should choose to ignore the management staff vis a vis anti - sexual harassment training, sensitization and awareness.

It is a proven fact that in organization’s where managers and senior staff is trained under the law against sexual harassment, the occurrences of sexual harassment is typically reduced. Organization’s apart from organizing training, awareness and sensitization sessions for its employees must also factor in the importance of conducting these sessions for the management and/or senior staff in order to breed inclusivity in the workplace. Moreover, a sensitized and aware management can further anticipate any systematic biases that may exist in the organization, recognize risk factors and behaviors that may lead to a hostile work environment or result in ubiquitous complaints.

When employees are aware of sensitized supervisors and management, their hesitation to report incidents can decrease manifold. This builds trust and transparency in the organization; thereby eradicating any signs of sexual harassment which directly or indirectly results in maximum productivity of the workforce.

Secondly, absence of a definition of “regular intervals” for conducting awareness and sensitization sessions by employers often leads to a situation wherein the employers fail to conduct sessions for training and awareness for months or years on end. In this scenario, it is extremely difficult to ascertain what “regular intervals” entails. Ms. Smriti Irani, Women and Child Development Minister told the Rajya Sabha on 11.07.2019 that “All Ministries of Government of India and State/Union Territories governments have been requested to organize workshops and awareness programmes in their departments/offices for sensitizing employees about matters pertaining to sexual harassment of women at workplace and related legal provisions and redressal mechanisms”. However, how often and after what intervals should these sessions and trainings be conducted is nowhere mentioned in the law. Effective compliance and implementation becomes a challenge when the awareness sessions and workshops are not organized regularly by employers. The Government has time and again requested all State Governments and UT Administrations to advise the Secretary Industries/Commerce to organize similar workshops and awareness programmes in each and every industry, business house, private sector entity of the States/UTs. Organisations must therefore adhere to the concept of “regular intervals” in a reasonable manner. Till the time, the POSH law stands unimpeded and the words “not exceeding one year” or “not exceeding 6 months” are not added to “regular intervals”, organisation’s must stringently and regularly provide training and awareness against sexual harassment in order to effectively comply with the POSH law. After all, the goal remains “effective” compliance.

Adv. Sanya Talwar

POSH AT WORK