Employment Law Newsletter: POSH: Gender Neutrality-May 2022
IS YOUR POSH POLICY GENDER NEUTRAL?
The guidelines in the landmark judgment of Vishakha and Others vs State of Rajasthan and Others1 (“Vishakha Guidelines”) laid down the foundation of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) with view of protection of sexual harassment of female employees at workplace. In the Vishakha Guidelines it was stated that sexual harassment with women at workplace is kind of a gender discrimination and the contents of the fundamental rights guaranteed in our Constitution are of sufficient amplitude to encompass all facets of gender equality, including prevention of sexual harassment and abuse and the Courts are under a constitutional obligation to protect and preserve those fundamental rights.
In India, there have been many infamous events and brutal instances and the ultimate trigger point was the shameful instance in December 2012 (Nirbhaya Case), which shook the conscience of the entire nation. The only positive fallout of the incidence was enforcement of the POSH Act.
As the title of the POSH Act explains, it only addresses the issue of protection of women and is not gender neutral. Male or the third gender, if subjected to sexual harassment, cannot claim protection or relief under the POSH Act. By giving high regards to gender equality, the parliament should also consider amending the legislation in order to enable any gender to file a complaint.
Most of the employers today, while drafting their policies on prevention of sexual harassment (“POSH Policy”) tend to not extend the benefits of the POSH Policy to the male and third gender individuals. It is needless to mention that sexual harassment at workplace is more of a gender-neutral social evil than a patriarchal concept, hence, having a gender-neutral procedure for alleviation of such grievances is need of the hour and in this Newsletter we address the nuances of the same.
1. Can your POSH Policy be gender neutral? If yes, how?
Yes, your POSH Policy can be gender neutral. Although the POSH Act protects the rights of the female gender alone, however, to promote gender equality at workplace, an employer can provide a gender-neutral policy where the Internal Committee formed as per the provision of the POSH Act can also be empowered and authorized by the organisation to take cognizance of the cases for any aggrieved person irrespective of their gender in the same manner as per the procedure laid down in the POSH Act. To make the POSH Policy gender neutral following factors shall be borne in mind:
a. The definition of “aggrieved” (i.e., the victim) and “respondent” (i.e., the perpetrator) should be gender-neutral;
b. Internal Committee shall be given the power by the organisation to try the cases for any aggrieved person irrespective of their gender;
c. The organisation/employer must clarify that in case if any person is aggrieved from the decision of the Internal Committee, the appeals for female aggrieved person will be as per the POSH Act, and in any other case it shall be as per the provisions of the Code of Criminal Procedure, 1973 read with Indian Penal Code, 1860.
2. Can your Internal Committee be gender neutral as per the applicable law?
As per the erstwhile practice of employers across sectors, it has been observed that the cases of male/third gender sexual harassment at workplace are addressed as a per the disciplinary or misconduct procedure of that particular organisation. Whereas, for female aggrieved such complaints are tried by the Internal Committee constituted under POSH Act. As per Section 11(3) of the POSH Act the Internal Committee has the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the matters, namely:
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents: and
(c) any other matter which may be prescribed.
Since POSH Act does not bar an employer from following a similar procedure for a gender other than female, hence, it can be inferred that an employer has the liberty to formulate an internal procedure for addressing sexual harassment grievances by individuals of gender other than female and conferring similar powers to the Internal Committee for trying all sexual harassment cases irrespective of the gender of the aggrieved person will not violate the provisions of the POSH Act. The only limitation of an Internal Committee dealing with a sexual harassment case of an aggrieved male/third gender is that while taking cognizance of such cases the Internal Committee will not have the powers of Civil Court, however, such powers or similar powers can be conferred on such committee by the organisation itself.
Following are some advantages of conferring similar powers on Internal Committee:
a. Eliminating possibility of any kind of gender discrimination;
b. Operational parity; and
c. Eliminating the need for formulating a separate procedure or body for aggrieved other than female and thereby reducing duplication of efforts.
3. Can an individual complaint against a same sex individual under the POSH Act?
As per the judgement in the case of Malabika Bhattacharjee vs. Internal Complaints Committe, Vivekananda College and Ors. [MANU/WB/0752/2020], the Hon’ble High Court of Calcutta has stated that on bare reading of Section 2(m) of the POSH Act, it is clear that ‘respondent’ can be any person against whom the aggrieved woman has made a complaint as per the provisions of the POSH Act. Hence, an individual can complaint against the same sex individual.
Even though male gender and third gender are not per se protected under the POSH Act, every employer must strive to create an inclusive environment without discriminating on the basis of gender or any other bias prohibited under the Constitution of India. To ensure an inclusive environment, wherever, possible an employer shall strive to create policies, rules, regulations, byelaws etc. bearing in mind the principles of equality and non-discrimination i.e., the fundamental rights enshrined in the Constitution of India. Further, owing to the nature of the POSH Act, most of the employees may not know if they have a right to file a complaint against sexual harassment especially genders other than female gender, hence, it is recommended that regular training sessions be conducted to apprise them of their rights.