A Guide to Setting Up a POSH Compliance and Culture Practice

Index of Content

1. Overview 

2. Why Prioritizing POSH Compliance and Culture Practice is Crucial?

3. Important Definitions 

4. Essentials of a POSH Policy

5. Manager’s Role in POSH Compliance and Culture/Employer’s Duties 

6. Forms of Sexual Harassment

7. Consequences of Sexual Harassment/Non-Compliance 

8. Involved Parties’ Rights and Duties

Resources:

1. Infographic for Timeline 

2. Know Your Internal Committee [IC]

3. Quiz: Is This Sexual Harassment? 

4. Quiz: POSH Law applicability for Employees Working from Home

5. Self-Survey for Managers: How well do you practice POSH Compliance and Culture?   

6. POSH Posters and Flyers Ideas for Workplaces

7. Template for Filing POSH Annual Report under Sec 21 

Overview

Sexual harassment is a serious menace and is a global issue. It can lead to significant repercussions for those involved, encompassing both employees, and even the broader workforce and the organization. The impact is hard to be contained in mere words. This toolkit will provide you with tools and resources to set up and follow a healthy practice of complying with the POSH Law and creating a positive culture to prevent sexual harassment from occurring, and to do the needful when it occurs.  

Why Prioritizing POSH Compliance and Culture Practice is Crucial?

Sexual harassment often occurs in the matrix of power, where a person in a position of authority or having power over another, misuses their power to attain sexual favours. No one, however senior in hierarchy, is above the law. In fact, if proven guilty, higher the seniority, higher the degree of punishment , as with great power comes great responsibility. 

As managers, you are the guardians of your organization. It becomes your responsibility to ensure POSH Law is complied with in letter and spirit, and a healthy, respectful, and inclusive culture is built and maintained. How do you plan to accomplish this? Keep reading to discover more.

Mishandling of a Complaint 

When sexual harassment happens, due course must be followed, otherwise there may be serious repercussions. If a case is mishandled, it usually finds its way in the public domain, and/or gets appealed in an appellate court. Social media, which organizations use extensively to promote their products and services, is a double-edged sword. Within minutes, a negative social media post can go viral, damaging the reputationOn the other hand, a case appealed in the court may take months to see resolution, but in that duration, it continues to take a toll on the affected individuals, in the form of anxiety, mental trauma and potential career disruptions. Finally, the court judgements often bring the spotlight on how well, and frequently, how poorly, the case was handled by the organization and its Internal Committee (IC).

Periodic training and sensitization sessions at all levels (Employee, Manager, Internal Committee) and consistently upholding POSH compliance and culture can prevent sexual harassment and related damage to parties, organization, and brand. 

Employee Awareness Training and Internal Committee Orientation and Skill Building Training, when conducted regularly, is compliance with the POSH Act. A complete list of Employer’s Duties/Compliances under POSH Act, 2013, is given in the template below.

See. Self-Survey for Managers- How Well Do You Practice POSH Compliance and Culture 

By utilizing this toolkit to attain compliance and foster a positive culture, you can confidently affirm that you are heading in the right direction. The key is to maintain this momentum by consistently prioritizing POSH.

The laws applicable to the organization 

• The POSH Act, 2013 – The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 

• The POSH Rules, 2013 – The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013

• Organization’s POSH Policy  

• The Criminal Amendment Act, 2013, IPC Section 354 A (Section 75 in Bhartiya Nyaya Sanhita)

Important Definitions

Sexual Harassment

Sexual harassment includes any one or more of the following unwelcome acts or behavior (whether directly or by implication), namely:

• Physical contact and advances; or

• A demand or request for sexual favours; or 

• Making sexually coloured remarks; or

• Showing pornography; or 

• Any other unwelcome physical, verbal, or non-verbal conduct of sexual nature;

Aggrieved Woman

A woman, of any age, whether employed or not, who alleges to have been sexually harassed (by the Respondent), at the workplace (or in relation to the workplace). She could also be someone who comes into the workplace (physically or virtually), ex. a trainer, a visitor, or a candidate for interview. 

Workplace

Workplace under POSH Law is not only the brick-and-mortar office building or premises, it can also be any place visited during employment, ex. a client office, a mall, a train station or airport, a restaurant, or off-site. The expanded definition of the workplace encompasses virtual environments, including emails, virtual meeting platforms, phone calls, as well as social media platforms like Facebook and Instagram. 

Respondent

Respondent is a person (of any gender) against whom an aggrieved woman/complainant has filed a sexual harassment complaint. This person need not be an employee. Ex. a person coming into the workplace. 

Employee

Employee means a person employed at a workplace for any work, be it regular, temporary, ad hoc, or daily wage. This person can be directly employed or through an agent, with or without the knowledge of the employer. They may be working for remuneration or not, may be voluntary, and the terms of employment may be express or implied. Ex. a contract worker, probationer, trainee, or apprentice, or called by any other name. 

Employer

Any person responsible for the management, supervision, and control of the workplace. This includes the person or board or committee responsible for formulation and administration of policies for the organization. It could be a person responsible for discharging contractual obligations for the employees.  

Note: Since there can be multiple ‘employers’, the same should be identified in the POSH Policy so that it is clear who is the employer to discharge the employer’s duties under the POSH Act.

Essentials of a POSH Policy 

It is a legal requirement for the employer to formulate and widely disseminate a POSH Policy (Service Rules) for prevention, prohibition, and redressal of sexual harassment at the workplace. It is intended to promote gender sensitive and safe workspaces, and remove the underlying factors that contribute towards a hostile work environment against women. A POSH Policy must abide by the POSH Law and Rules, but it can go beyond it and include some additional provisions, so long as there is no conflict between the Law and the Policy. It should also go the extra mile and provide lots of examples and scenarios for employees to better understand the definitions and concepts. You will find several examples in this toolkit.

1. Purpose: It must include a statement of purpose and scope and must align with the provisions of the POSH Act. To prevent sexual harassment at the workplace and to provide a safe, respectful, gender inclusive workplace to all women who work or come into the workplace, physically or virtually, and to provide for impartial and speedy redressal of complaints of sexual harassment, in alignment with the POSH Act, is the prime purpose of the POSH Policy.

2. Definitions: It must include the definitions of sexual harassment, aggrieved woman, employer (including identifying the employer of the organization), employee, workplace, etc., as given in the POSH legislation. It should also provide examples of behaviors that are considered as sexual harassment. Some examples of sexual harassment are given in the template below.

See. Quiz: Is This Sexual Harassment?

1. Reporting Mechanism: It must clearly explain, if a woman experiences sexual harassment, to whom and how (in writing, to IC) and when (timeline) she can file a complaint. To foster impartial hearings, it should mandate that in the Quorum of 3 IC Members, besides Presiding Officer (already mandated in POSH Law), External Member must also be included (addressing a gap in the POSH Law). It should state that if a written complaint is received by any other person (other than IC), they must forward it to the IC.  

2. Conflict of Interest: The Presiding Officer (PO) must assess if an IC member has close ties with the Respondent, potentially leading to a conflict of interest, the PO should ensure that IC Member recuses themselves.

3. Confidentiality: It must also include a statement on the importance of confidentiality (confidentiality is sacrosanct under Section 16 of POSH Law) and the steps the organization has taken to ensure it. One of the steps is a penalty for breaching confidentiality. This is a space where the policy can go over and above the Law. The Law provides for a sum of INR 5000 that the employer must recover from the person breaching confidentiality, but the organization’s policy (service rules) can provide for a higher sum.

4. Retaliation: The policy should mandate a penalty for anyone who is found to pressurize, exert influence, or victimize, either directly or indirectly, a complainant or witness involved in a given inquiry. It must assure the complainants that retaliation will not be tolerated and to whom should they report retaliation (IC), if any. Here, a substantial sum for penalty must be mentioned and a zero tolerance towards retaliation must be emphasized in the Policy.

5. Redressal Mechanism: It must document in detail the redressal mechanism as prescribed in the POSH Law, including the timeline, conciliation, process of inquiry, principles of natural justice, IC’s powers akin to a civil court, and inquiry report. There should be a section on false/malicious complaints; that they will be determined only through inquiry, and if found guilty of malicious complaints, a complainant would be subjected to the same punishments as those prescribed for the Respondent. 

6. Findings: It must include that if both parties are employees, a findings report must be shared with both parties and they should be given sufficient time for making a representation against the findings, before the recommendations are given in the final inquiry report/IC Order.

7. Punishments: It must include the punishments that can be given if sexual harassment allegation/s are found to be true through inquiry. These are given in this toolkit under the heading Consequences of Sexual Harassment / Non-Compliance. 

8. Employee Training: All the pertinent information must be delivered to the employees in detail, in regular training sessions, commonly called Employee Awareness and Sensitization Sessions. One of the focuses of these sessions should be sensitization of employees towards the menace of sexual harassment and the foundational need for the POSH Act to be for women at workplace.

9. IC Training: The POSH Law mandates the employer to carry out orientation programs and seminars, capacity building and skill building programs for the IC members. In the spirit of the Law, the policy could specify the frequency and duration of IC training so that it becomes an imperative to conduct it regularly.  

Note: IC Training is expensive (trainer’s fees) and requires all IC members to be present for the entire duration of training, which may be for 6-12 hours (1-2 days). This resource intensive requirement often discourages the management from allowing IC training to be conducted, even once a year. But not conducting IC training is against the law. Limited resources cannot be an excuse. The organization’s response to a complaint of sexual harassment hinges on how dedicated the employer is towards POSH compliance. And a crucial element of POSH compliance is having a valid and well-trained IC.

Dos and Don’ts: Employees’ Dos and Don’ts must be clearly articulated in the POSH Policy as well as in the Employee Awareness Sessions. Some of these are:

1. To understand people’s boundaries, and not to cross them. A special training session on Respecting Boundaries should be conducted so that employees understand boundaries and respectful behavior at the workplace. 

2. To not laugh at or forward gender-insensitive jokes, comments and to not indulge in sexist, inappropriate behavior.

3. To inform the IC if they see, hear, or come to know about an incident of sexual harassment. 

4. To listen, empathize and offer support to an aggrieved woman who confides in them, and to gently direct her to the IC. Do not try to investigate the complaint, or inform people other than IC, as it could lead to gossip through grape-wine/retaliation from would-be Respondent or potential breach of confidentiality.

5. To not stop a woman from complaining or insist that she file a complaint. It is completely her prerogative. 

6. To fully co-operate with the IC for any inquiry, and failure to do so should lead to suitable consequences.

In addition, the policy should be regularly reviewed and updated to ensure it remains effective. Employee feedback, internal audits and external expert’s advice can be used to periodically review the policy.

Manager’s Role in POSH Compliance and Culture/Employer’s Duties

In workplace compliance obligations under POSH law, the duties assigned to employers seamlessly extend to managers. Acting as the eyes and hands of the employer, managers play a pivotal role in the implementation of these multifaceted duties. Recognizing that an employer may not feasibly be omnipresent to oversee the myriad responsibilities, a manager's proactive ownership in executing and upholding the employer's duties becomes paramount. This managerial commitment ultimately guarantees positive outcomes for the organization.  

1. Provide safe, harassment free workplace, including safety from persons coming into contact at workplace. 

Note: This provision shows the Law envisaged non-employees also to be Respondents of sexual harassment complaints. Also Note: Aggrieved Woman under POSH Law is a woman whereas Respondent under POSH Law is a person (of any gender).

        2. Create and disseminate a well-crafted, easy to follow POSH policy (employees must know where to access it). 

Note: Often it is seen the newly joined employees do not know where the Policy is and have not read it.

        3. Constitute Internal Committee (IC) with Section 4 - Order in Writing and display it in a conspicuous place in the workplace. (Display IC names and contact details at conspicuous places and the intranet). A template has been provided below.

See. Know Your Internal Committee [IC]

Display penal consequences of sexual harassment in conspicuous place. They are provided in this document under the heading Consequences of Sexual Harassment / Non-Compliance. The Policy can add consequences, such as, the punishment for Quid Pro Quo, if proven through inquiry, will be termination. 

1. Conduct orientation (for new IC members), capacity and skill-building programs and seminars (for all IC members) regularly.

2. Provide support and necessary facilities to IC to conduct inquiry, assist in securing the attendance of parties, witnesses (summons), and make available information, documents which IC requires regarding a complaint. 

3. Implement IC’s recommendations on Interim Relief and send such report to IC.

4. If allegations are proved, treat sexual harassment as misconduct and initiate action on it by implementing recommendations of IC and send report to IC. 

5. Monitor timely submission of IC Reports/Inquiry Reports/IC Orders.

6. Regularly conduct POSH awareness and sensitization sessions for all employees and make other endeavours to promote gender sensitive workplaces. 

See. Posters and Flyers Ideas for Workplaces

        7. Provide assistance to aggrieved woman if she chooses to file police complaint.

        8. Submit annual report under Section 21 to District Officer  

See. Template for Filing POSH Annual Report under Sec 21

        9. Include statement on constitution of IC in the Board of Director’s Report.

Note: Ministry of Corporate Affairs had notified an amendment to the Companies (Accounts) Rules, 2014, requiring all eligible companies to include in the board of Director’s Report-

A statement that the company has complied with provisions relating to the constitution of the Internal Complaints Committee under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal), Act, 2013. 

Note: The Internal Committee was formerly called Internal Complaints Committee. 

Penalty for not complying with the above is given in under the heading Consequences of Sexual Harassment / Non-Compliance.

Forms of Sexual Harassment

Sexual harassment is human behavior; hence it can have shades of grey and sometimes, it may be hard to determine if it is sexual harassment under the POSH Act. However, a well-trained and experienced IC, with the help of the definition given in the POSH statute, and by discussing the alleged incident and the context, among its 4-5 members, can ascertain correctly in majority of the cases. 

Quid Pro Quo

Sexual harassment can take many forms. A less common but more severe form is quid pro quo, meaning ‘this for that.’ It is sexual harassment when a senior, who has power or influence over work, salary, grades, opportunities, attempts to seek sexual favours in exchange for providing employment benefits, promotion, job security, or other work-related opportunities. It involves a coercive and conditional relationship where the acceptance or rejection of unwelcome sexual advances becomes linked to employment-related offers, decisions, or conditions. This offer could be beneficial or detrimental to the recipient. This practice is strictly prohibited. 

It is sexual harassment whether:

• One gives sexual favours but does not get opportunities; 

• One gives sexual favours, and one gets opportunities;

• One does not give sexual favours and there is no retaliation; 

• One does not give sexual favours and there is retaliation.

The more senior the person, the more severe the consequences of quid pro quo. 

Hostile Work Environment

This form of sexual harassment is often characterized by pervasive or persistent behaviours that interfere with a person’s ability to work comfortably and peacefully. It may create an intimidating, offensive or humiliating environment, making it difficult for the person to perform her duties. Any behaviour which is derogatory, intimidating, or disrespectful, and creates an unfavourable working environment, even if the behaviour is not directed at the person (Indirect sexual harassment), leads to a hostile work environment, if there is any sexual (visual/verbal or non-verbal) connotation to it. 

Since this form of sexual harassment may be subjective (one woman may be ok with it while another may not), the measure is to see if a reasonable woman would be impacted by it.

See: Quiz: POSH Law Applicability

Retaliation

Any form of retaliation for not granting sexual favours, or for filing a sexual harassment complaint, is also seen as continued sexual harassment, even if the retaliation is non-sexual in nature. So, if a sexual harassment complaint is filed after alleged retaliation (ex. termination), the retaliatory incident will be seen as the last date of sexual harassment. 0

Intent vs Impact

Impact matters, not the intent. Sexual harassment can have a very serious impact on the aggrieved woman. This can range from emotional to psychological harm including stress, anxiety, depression. Her self-confidence can go down and productivity can suffer, for no fault of hers. The impact of one incident can also be severe. Hence, it does not matter whether one incident caused the impact or repetitive incidents.  

Note: If there is an impact, then the incident will be looked into, provided it was unwelcome, occurred at the ‘workplace’ (expanded definition of workplace), is sexual or having sexual connotation, and a reasonable woman would have taken offence to it.

Punishments for Those Found Guilty of Sexual Harassment

When allegations of sexual harassment have been proved by the IC through inquiry, the IC must recommend action/punishments. In case of several allegations, if only some allegations are proven, punishments are given only for the proven allegations. Moreover, the punishments must be proportionate to the degree of sexual harassment proved. The punishments prescribed in the POSH Rules are the following, and one or more may be recommended: 

• A written apology

• Warning 

• Reprimand or censure

• Withholding of promotion 

• Withholding of pay rise or increments

• Terminating the respondent from service; or 

• Undergoing a counselling session; or 

• Carrying out community service 

Compensation

In addition to the above punishments, compensation may also be determined to be paid to the aggrieved woman, with regards to the mental trauma, the loss in career opportunity, medical expenses incurred by the victim for physical or psychiatric treatment. The amount of compensation determined by the IC is to be deducted from salary of respondent and given to the complainant by the employer. 

Note: The employer is mandated to act upon the IC’s recommendations. 

Penalties for Non-Compliance for the Employer 

For not constituting a valid IC, for not acting on the recommendations of the IC Order, or for not complying with the mandates of the POSH Law, the consequences are:

• The Employer or the company in default can be fined up to Rs. 50,000 in the first offence. 

• Subsequent defaults could lead to double the penalty up to cancellation of the business license.

Penalties applicable to private companies and its Directors under Companies Act 2013: 

• A company in default can be fined from Rs. 50,000 to 25 lakhs, and for every officer in default, the fine ranges from Rs 50,000 to 5 lakhs or imprisonment up to 3 years or both. 

• Subsequent defaults could lead to double the penalty up to cancellation of the business license 

Involved Parties’ Rights and Duties

Rights of the Aggrieved Woman

• Filing a complaint of sexual harassment 

• Receiving copy of response by the Respondent

• Request for Conciliation 

• Request for Interim Relief

• Cross-examination of Respondent and Witnesses 

• Receiving a copy of Findings and getting an opportunity to make a representation against the Findings (if both parties are employees)

• Receiving a copy of Inquiry Report 

• Appeal

Rights of the Respondent 

• Receiving a copy of the complaint within 7 days of the date complaint is filed with the IC

• Receiving 10 days to respond to the complaint 

• Agreeing/disagreeing to Conciliation

• Cross-examination of Complainant and Witnesses 

• Receiving a copy of Findings (as above)

• Receiving a copy of Inquiry Report 

• Appeal

Duties of the Involved Parties 

• All parties need to sign a Non-Disclosure Agreement

• Appear before the IC when summoned 

• Support and co-operate during the Inquiry Process

• Provide full and truthful statements before the IC 

Confidentiality applies to:

• Contents of the complaint filed before the IC

• Identity and addresses of the parties and witnesses 

• Information relating to inquiry, even conciliation

• Recommendations of the IC 

• Action taken by the employer

• No information to be published, communicated, made known to public, press or media 

• Penalty as per POSH Policy or prescribed in Rules (INR 5000)

Disclaimer: While this toolkit provides essential information for POSH compliance and culture, it is not exhaustive for the sake of brevity. For more detailed insights on compliance and cultural practices, kindly consult POSH Consultants and experts.