POSH Guide for HR : Part II

1) If asking a co-worker for a coffee date will be considered as sexual harassment

Answer: No! Asking a co-worker for a date is not sexual harassment.?However, if you repeat the behavior after being told that your attention is unwanted, it could be considered or become sexual harassment

2) Can both men and women be victims of workplace sexual harassment?

Answer: Yes, both men and women can be victims of sexual harassment. However, POSH Act offers the safeguards only for the women.

3) Can organizations have provisions to protect men or third gender from sexual harassment ?

Answer: Although POSH Act, offers protection to woman only but it does not prohibit organizations from constituting a Gender Neutral Anti Sexual Harassment policy as a part of their service rule. This will allow them to handle the complaint of sexual harassment from all the genders.

4) If POSH is applicable only when a man harasses a woman?

Answer: As per the POSH Act complainant is an “Aggrieved Woman”, it gives an impression that “respondent” (against whom the complaint has been filed/accused) must be a man. But the Act, does not put any restriction here. A respondent can be of any gender, man, woman, or a person of third gender. So a woman can file a complaint of sexual harassment against a man or woman or a person of third gender.

5) Can an inquiry be conducted by HR manager of the company?

Answer: As per the POSH Act, the inquiry need to be done by the ICC members only. If the HR manager is a part of ICC then he/she can conduct the inquiry.?

6) If the intention is not bad, will the act be considered as Sexual harassment?

Answer: The impact of the act what matters, not the intent.

POSH Act Says, any act which is perceived “Unwelcome” or “Sexual in nature” can be considered as sexual harassment by woman. So, it intention is irrelevant.

7) If POSH Law is applicable, only when you have 10 or more than 10 employees?

Answer: No! POSH Act is applicable to all the organization, irrespective of number of employees. Number of employees defines the constitution of ICC in an organization, it has nothing to do with the applicability of POSH Act. POSH Act says, if you have ten(10) or more than ten (10) employees you must constitute an ICC to handle the compliant of sexual harassment. In case of less than 10 employees, complaints of sexual harassment will be registered to Internal disciplinary committee or Local Complaint committee or victim may approach to police.

8) Is the employer responsible if an employee is sexually harassed at a company’s event (a) during working hours and (b) outside of working hours?

Answer: Yes! Concept of ‘Extended Workplace’ under POSH Act, covers the places visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey. Hence, any form of sexual harassment that take place at a company event, within regular working hours or outside of the normal working hours would also fall under the scope of the POSH Act and employer will be responsible for that.

9) A company has headquarter in Jaipur, and branches in Noida and Chandigarh. Is an ICC required to be constituted at every branch?

Answer: Yes! in accordance with the POSH Act an ICC is required to be set up at every branch of the company wherein at least 10 employees are employed.

In case, if there are less than 10 employees at any other branch/office, compliant will be handled by the ICC of Headquarter or of any other branch.

10) Is there any monetary settlement under conciliation?

Answer: No!?Conciliation is done only on a request of aggrieved woman and no monetary settlement shall be made as a basis of conciliation.

11) If a woman who files a complaint of sexual harassment is eligible for paid leave under the interim relief?

Answer: According to POSH Act, on the request of aggrieved woman, ICC can grant her a leave for upto three (3) months in addition to her entitled leave. Authority to decide on duration of leave will stay will ICC.

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12) Does POSH Act has a provision of payment of compensation to the aggrieved woman?

Answer: Yes! The compensation payable shall be determined based on:

i) the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;

ii) the loss in career opportunity due to the incident of sexual harassment;

iii) medical expenses incurred by the victim for physical/ psychiatric treatment;

iv) the income and status of the alleged perpetrator; and

v) feasibility of such payment in lump sum or in installments