10 POSH Policy Pitfalls: Spotting Mistakes and Fixing the Flaws

As a POSH consultant, I have encountered policies that are thoughtfully crafted as well as those that fall short—sometimes in ways unexpected given the organization’s size or resources. However, a common theme among them has been the presence of errors or misleading information, which can undermine compliance and effectiveness. 

In my experience, this often happens because organizations hesitate to invest in a professionally crafted or vetted POSH policy. Instead, they often rely on an internal process where a non-expert employee drafts the policy, which may then undergo cursory reviews by various senior staff over time. This informal approach often leads to a patchwork document that reflects differing viewpoints rather than a cohesive, legally sound policy. 

This blog captures a detailed, structured overview of common POSH policy errors and explanations to help address them. It can offer significant value to both HR Teams and Internal Committee Members.

Intent Matters: ‘Zero Tolerance Towards Sexual Harassment’ 

• Explanation: While this phrase is frequently used in POSH policies, it is rarely defined, often leading to misinterpretations. Many employees assume that "zero tolerance" means any proven incident, even something relatively minor like a casual pat on the back, will lead to immediate termination. This creates confusion and fear, that cannot be good for the culture.  

The intent of zero tolerance is actually to convey that all complaints will be taken seriously and redressed thoroughly by the IC, not necessarily that every offense will result in the most severe penalty.

No Comebacks: Putting a Stop to ‘Retaliation and Victimization

• Explanation: This crucial element is often missing from POSH policies, as the term "retaliation" itself does not explicitly appear in the POSH Act. When it is included, policies typically state that disciplinary action will be taken against retaliators without elaborating further.  

A comprehensive POSH policy should clarify that retaliation against someone for filing a sexual harassment complaint is, in itself, a continuation of harassment in the eyes of the POSH Act. Such retaliation will also be inquired into by the IC and treated as part of the original complaint, ensuring protection for those who come forward.  

Retaliation refers to any punitive action taken against someone because she reported sexual harassment as a complainant or did not give in to a demand or request for sexual favors. 

Examples: Termination, reducing the salary, assigning menial tasks, limiting work opportunities, or creating a hostile work environment. 

Victimization is a broader term that refers to unfair treatment, often because of a person’s involvement in a complaint process (either as a complainant, witness, or supporter). Victimization can occur even in the absence of a formal complaint, based merely on association or suspicion. 

Examples: Social exclusion, harassment, spreading false rumors. 

Policies should ensure strict protection from retaliation or victimization.

Who's in the Room? Understanding ‘Third-Party Associates’ 

• Explanation: Many POSH policies either omit or inadequately address sexual harassment by or against third-party associates, despite the POSH Act explicitly including them within its scope. The law recognizes that sexual harassment can occur through interactions with clients, visitors, contractors, vendors, or any persons coming into contact at the workplace.  

An effective POSH policy should clarify that these individuals are also covered in the scope of the POSH Act and that the IC can inquire into complaints involving third-party associates, ensuring protection for employees against sexual harassment from any source.

The Case of the ‘Missing’ Employer: Unmasking Responsibility 

• Explanation: I have yet to come across a POSH policy that defines who qualifies as the "employer” and that the complaints against the employer are to be filed with the Local Committee (LC). This lack of information creates confusion for employees regarding where to file a sexual harassment complaint against the ‘employer’—whether it should go to the IC or the LC. Without a clear designation of who the employer is, there is a risk that the employer may evade accountability.  

A comprehensive POSH policy should specify which positions or designations are considered as the employer based on their roles and responsibilities. This clarity ensures employees know the appropriate channels for reporting and reinforces the employer's accountability in creating a safe workplace.

Say It Out Loud: Why ‘Oral Complaints’ Need Clear Guidelines 

• Explanation: Employees need to understand that while an oral complaint of sexual harassment is valid and must be taken seriously, the POSH Act requires that all complaints be submitted in writing to initiate formal proceedings.  

The POSH policy should clarify that if an aggrieved woman makes an oral complaint and needs assistance in making the complaint in writing, the Presiding Officer (PO) or an IC member must assist her in documenting it as a written complaint. Without this guidance, employees may assume that oral complaints alone are sufficient, potentially leading to procedural delays and misunderstandings in the complaint-handling process. Or, they may assume that an oral complaint will not be taken seriously, which can undermine the trust in the IC and the organization.

Lost in Translation: The Need for a ‘Complaint Template’ 

• Explanation: A Complaint Template is often missing from the POSH policy. In some sexual harassment cases, written complaints are so wordy and unclear that significant time is spent by the IC deciphering and extracting coherent information.  

Including a clear, structured complaint template in the POSH policy can prevent these scenarios by guiding the complainant to provide all relevant details in an organized manner. This approach ensures that necessary information is captured from the outset, making the process smoother and more efficient for both the complainant and the Internal Committee. 

If a complainant does not have complete information about the respondent, they should provide whatever details they can. The IC will then make efforts to gather any additional information needed to proceed further, as per the POSH Law.

Judge and Jury: Only IC decides what constitutes sexual harassment 

• Explanation: A common and problematic approach in some POSH policies is stating that a POSH Helpline Executive will determine if the incident constitutes sexual harassment. Such a person, even if they are from HR, should not have the authority to determine whether an incident qualifies as sexual harassment. Their role should ideally be limited to gently directing them to the IC and informing the IC of the same. 

Under the POSH Act, the IC is empowered to investigate and determine whether a behavior constitutes sexual harassment within the workplace. Here is why this role rests with the IC: 

1. Expertise and Training: The IC members, especially the external member with expertise in sexual harassment issues, are trained to evaluate situations objectively. They are better equipped to understand nuanced behavior and workplace dynamics that may constitute sexual harassment. 

2. Confidential and Fair Process: The IC is required to maintain confidentiality and follow due process, ensuring that both the complainant’s and respondent’s rights are respected. 

3. Legal Compliance: The POSH Act specifies that the IC’s recommendations are binding on the Employer to take action on. This is to ensure a standardized approach across organizations, following principles of natural justice. 

While the IC holds this primary responsibility, its determination can be appealed if either party is unsatisfied, allowing for external scrutiny by an appellate authority.

Time's Ticking! Why the 3-Month Extension Stays in Place 

• Explanation: Some POSH policies do away with the 3-month extension.  The 3-month extension provision is a mandatory component of the POSH policy, as removing it would conflict with the requirements of the POSH Act. This extension allows the IC to grant additional time for filing a complaint if they are convinced—based on reasons documented in writing—that circumstances beyond the aggrieved woman's control prevented her from filing within the initial 3-month period from the date of the last incident. This clause ensures fair access to the complaint process, especially in cases where delays are due to personal, professional, or psychological barriers.

  The Waiting Game: Why 3-5 Working Days is Too Long for IC’s First Meeting with the Complainant 

• Explanation: Some POSH policies provide 3-5 working days for the initial meeting in the process overview. Although the POSH Act does not specify an exact timeline, a delay of 3-5 working days for the IC to meet the complainant is often excessive. Here is why: 

1. Acknowledgment: Acknowledging receipt of the complaint should take no more than a day. This immediate response assures the complainant that her concerns have been received and are being acted upon. 

2. Timely Meeting: Organizing the first meeting within 1-2 working days is typically sufficient to form a quorum (Presiding Officer and two other members) and meet with the complainant. This initial meeting allows the IC to introduce themselves, explain the process, and emphasize confidentiality, providing her with the immediate support and information she needs.

   Tick-Tock! Don’t Let POSH Timelines Fall Through the Cracks 

Explanation: The POSH Rules mandate specific timelines for handling complaints of sexual harassment to uphold due process and the principles of natural justice. According to these, once a complaint is received, the IC must send a copy of the complaint to the respondent within 7 working days. The respondent then has 10 working days from receipt to submit a written response. 

These timelines are non-negotiable, as altering or removing them would compromise adherence to POSH law and fair investigation standards. Clear timelines like these not only streamline the process but also help reassure both parties that the inquiry will proceed with fairness and transparency. 

Each of these points underscores the importance of a well-defined, expertly reviewed POSH policy that fosters a supportive, harassment-free environment. Through consistent updates and clarity, organizations can align their policies with legal requirements and build trustworthiness with current employees and future hires.