Why Safety Requires More Than Policies
Did you know that the MCA recently fined a company a whopping Rs. 4.5 lakhs for not including a statement on the constitution of an Internal Complaints Committee under the POSH Act in their board report??
I heard whispers on both sides of the fence here: Some voices around me felt that the rap in the knuckles was a bit much, but many concurred that it really drove home a powerful point in favour of building a culture of zero-tolerance toward workplace sexual harassment.?
We’re passing a decade since the law came into force, and we’re still staring at a blank wall in the compliance landscape.??
Picture this: The Centre for Economic and Data Analysis at Ashoka University recently released a report drawing data from 300 companies listed on the National Stock Exchange to understand trends in complaints of workplace sexual harassment.?
Spanning a 11-year window from 2013 to date, the report indicates an increase in the number of reports from 71 in year 1 to 1160 in 2023. These 1160 cases, however, came from 81 companies. 219 did not report any incident.?
While a 0-incident report could point at a safe workplace, it is also true that the results could be a product of factors that prevent reporting.??
If that sounds doubtful, take a look at the total number of sexual harassment cases and number of sexual harassment cases at the workplace reported by the National Crime Records Bureau over 2020-23.?
In over 17,000 cases of sexual harassment reported, a mere 400-500 cases of sexual harassment at the workplace are reported each year.?
To make matters worse, some of the states with the highest number of sexual harassment cases have reported the lowest number of cases at the workplace. For instance, the sexual harassment cases reported by Uttar Pradesh in 2023 was the highest among states, at 4533 cases. However, only 6 (0.13%) of these were cases at the workplace.
The Ashoka University report also reveals a growing number of pending cases, awaiting redress, suggesting that even as complaints rose, the commitment to resolve and address them did not keep up.?
Is this a result of low awareness of compliance with the POSH Act? Or is it a sense of apathy toward what feels like a tokenized, tick-a-check-box engagement? Is it enough to go for the low-hanging fruit of compliance, or can an organization do more to build trust?
As Meghana Srinivas , founder of TrustIn explains, one has to be an employee to be a respondent or perpetrator, but one does not have to be an employee to be a complainant.
“This means that anyone – a contractor, a client, a visitor to your workplace can complain against your employee for sexual harassment.”?
The actual act itself does not necessarily have to relate to patently sexual behaviour or actions – using language or gestures or sharing intimate images also amount to sexual harassment. It need not?be directed at a specific person, either – for instance, making objectifying comments or statements targeting a group based on gender or sex can also amount to sexual harassment.??
Sexual harassment can be hostile or quid pro quo. The former is where harassment takes place as harassment – without other ulterior motives. The latter is where a power dynamic kicks in, demanding a sexual favour as currency for a promotion, favourable appraisal, salary hike, or other perks that the individual targeted is already entitled to receive.?
Workplace Sexual Harassment is a Trust Issue
You spend anywhere between 8 and 10 hours at your workplace in person or logged in online (sometimes even more, we know you’re working hard). When you leave the premises or log out, you’re still cued into other ways of being connected - a WhatsApp group, an email thread, a communication hub on an internal server - and you’re likely engaging with your colleagues.
It is a no-brainer that these spaces must feel safe enough to let you engage and work, and part of this safety comes from your workplace in itself, and your colleagues. You arrive at work with a sense of trust that you have this safety to keep going.
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A workplace is responsible for prioritizing safety as a matter of culture by setting up appropriate mechanisms to prevent and address sexual harassment. Your colleagues are responsible for keeping that culture in place by regulating their own behaviour and supporting anyone targeted by inappropriate behaviour by another.??
Anything that disrupts this dynamic hits at the root of trust.
As Sky (name changed), an educator on queer rights at the workplace, says, sexual harassment should be treated as a trust issue before anything else.
“Anyone who goes to work does so with a modicum of trust in their colleagues and supervisors. No one is asking to be harassed, no one wants to be harassed, and no one is at fault for harassment that happens to them.? When this safety is not assured, it violates their trust. Would it help an organization to have employees that can’t trust them? I don’t think so!"
Treating sexual harassment as a trust issue means that there is a need to go beyond the bare minimum threshold of compliance. To Rasika Sundaram , founder of Imaara Survivor Foundation, this looks like an active commitment to a zero-tolerance culture.
“Building a zero tolerance culture requires going beyond mere compliance with POSH law. It needs a proactive approach where organizations reject all forms of harassment. A reactive approach is limited because it will only address the manifest act of harassment. But no harassment takes place without an enabling environment, so this means creating proactive spaces of safety and bravery, prioritizing regular training, having open and difficult conversations, and creating a culture of accountability.”
What does the law say?
India’s POSH laws go back to a major case in the late 90s, called Vishaka v. The State of Rajasthan. An umbrella initiative of several organizations across India called on the Supreme Court to fill in the white space within the law to address workplace sexual harassment. The Supreme Court laid down a set of guidelines that held fort until 2013, when the POSH Act was adopted.?
Under the POSH Act, all workplace relationships and dynamics are sites of protection against sexual harassment. While the law centres the protections against sexual harassment on women, practice shows that more and more workplaces implement the POSH Act with gender neutral overtones.?
Survivors of WPSH have several options. As Meghana notes,
“POSH is a very employee-centric law. However, we might not be able to access it if we're not aware of our rights. The law requires organizations to take workplace sexual harassment seriously enough to hold perpetrators to account. Under the POSH Law, any employer with 10+ employees, inclusive of interns, volunteers, and contractors, must constitute an internal complaints committee that must comprise about two to four employees and one external member who is either a lawyer or someone specialized in gender issues or an NGO worker. The external member is intended to bring in objectivity to all proceedings. Aside from this, there is also a district-level apparatus called the Local Complaints Committee, which is typically for employees of organizations that don’t have internal complaints committees or who work as freelancers and in the informal sector. Survivors can ask for interim relief, paid leave up to 3 months while the investigation is going on, and request a transfer for themselves or the perpetrator.”?
Drawing from Meghana’s insights, here is a flowchart that explains the full process of filing a complaint under the POSH mechanism.?
To support a complainant’s case, it is useful to have all the evidence and witnesses one can possibly call on. However, most instances of sexual harassment take place in private spaces and discreet ways that it may be impossible to find evidence and witnesses, and the law understands this. Accordingly, the burden of proof is on the individual who is accused to prove that they didn’t do it. A complainant cannot be terminated for raising the complaint.?
One of the misconceptions that came to light was how the POSH law is often considered a tool specific to the “elite” workplaces: The large firms, the heavily staffed organizations, physical workspaces, and corporate set-ups. However, no workspace is above the law, and POSH binds everyone – this means a small start-up, a remote-first initiative, a collective working out of a coworking space, and a non-profit organization are all equally bound by the POSH Act. Any employee, no matter the designation or role, can avail the protections afforded by the law.
Compliance Plus: Building Trust Actively
While most organizations are doing the bare minimum by setting up an internal complaints committee, we’re not seeing enough organizations stepping up to do more. Proactively engaging with the workforce to build and hold trust as a collective effort calls for a commitment to keep pushing the envelope further.?
Sky says,
“Organizations need to do much more than just POSH compliance and a month-wide celebration of pride. We are tired of organizations that restrict their focus to flashpoints, i.e., responding to issues when they occur, rather than bringing care into these spaces. People work for long hours each day and deserve to have safe spaces.”?
Meghana offers a set of simple, proactive actions an organization can take to build safe spaces: