Debunking Myths About India’s POSH Act

There are numerous myths about India’s anti-harassment law, which can lead to employer missteps. This article debunks several of these common myths.

Myth 1: The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) is only applicable to organizations with 10 or more employees. 

Fact: The POSH Act applies to all workplaces, irrespective of the organization’s size or type. Under this act, organizations with 10 or more employees are required to constitute an Internal Committee (IC) to address sexual harassment complaints. In cases where the organization has less than 10 employees, the POSH Act still applies, but complaints will be handled by the Local Committee. 

Myth 2: The POSH Act requires IC members to be appointed in a specific manner.

Fact: While the POSH Act and the rules issued thereunder do not prescribe for a specific manner, it mentions that the appointment/nomination should be in writing; hence, in practice, IC members are generally appointed/nominated by way of a board resolution. Also, the name and contact details of the newly constituted IC should be displayed at conspicuous places in the workplace, such as on notice boards. Employers could also consider sharing these details on the company portal/intranet and via email or another communication platform. 

Myth 3: The POSH Act prohibits the appointment of employees from the group entity as IC members.

Fact: There is no specific prohibition under the POSH Act against appointing employees of the group entity as IC members, but from a practical perspective—and to avoid any objections in the court at a later stage—it is usually recommended that local employees be the members of the IC. 

Myth 4: Multinational corporations (MNCs) headquartered outside India are not required to establish ICs for their Indian offices/employees, as their global harassment prevention policies and/or grievance redressal systems would be sufficient.

Fact: According to the POSH Act, any organization in India with 10 or more employees must establish an IC, regardless of where the company is headquartered. This means that MNCs with at least 10 employees in India must create an IC and ensure their staff is informed about sexual harassment prevention, the complaint procedure, and the grievance redressal process.

Myth 5: An HR professional cannot serve as the presiding officer/member of the IC under the POSH Act.

Fact: The POSH Act requires that the IC consists of a minimum of four members. Of these, three members must be employees; they will preferably be individuals with legal knowledge, experience in social work, or a commitment to the cause of women. There is no specific prohibition under the POSH Act against a member of the HR team serving as the presiding officer or a member of the IC, provided that, 1) they are employees of the company, 2) the presiding officer of the IC is a senior-level female employee, and 3) they fulfill the requirements under the POSH Act. 

Myth 6: IC members can serve indefinitely without the need for renomination or replacement.

Fact: Under the POSH Act, the presiding officer and every member of an IC hold office for a period not exceeding three years from the date of their nomination. In case of the retirement, resignation, or replacement of a member of the IC, a new member must be nominated to replace them (by way of a resolution). The nominated individual should possess suitable qualifications, as applicable to the relevant category of membership. The name and contact details of the newly constituted IC should be displayed at conspicuous places in the workplace, such as on notice boards.

Myth 7: Sexual harassment under the POSH Act only involves physical actions such as touching or assault.

Fact: Under the POSH Act, sexual harassment includes any one or more of the following unwelcome acts or behaviors (whether performed directly or by implication): initiating physical contact and advances, demanding or requesting sexual favors, making sexually colored remarks, showing pornography, or engaging in any other unwelcome physical, verbal, or nonverbal conduct of a sexual nature. Section 3 of the POSH Act specifies that the following acts or behaviors may amount to sexual harassment:

• Making an implied or explicit promise of preferential treatment in employment.
• Making an implied or explicit threat of detrimental treatment in employment.
• Making an implied or explicit threat about present or future employment status.
• Interfering with work or creating an intimidating, offensive, or hostile work environment.
• Subjecting an employee to humiliating treatment likely to affect their health or safety.

Myth 8: Only women can file complaints of sexual harassment under the POSH Act. 

Fact: While some of the provisions of the POSH Act are gender-neutral as far as applicability is concerned, sexual harassment law in India is not gender-neutral. Currently, the POSH Act states that only an “aggrieved woman” can file a complaint, thereby excluding men and certain members of the LGBTQ+ community. However, organizations can implement a “gender-neutral” anti-harassment policy as part of the organization’s service rules to extend protection to all genders (thereby fostering a more inclusive and respectful workplace). 

Myth 9: Only employees can be covered under the POSH Act.

Fact: The POSH Act defines an “aggrieved woman” as a woman of any age, “whether employed or not” who alleges to have been subjected to any act of sexual harassment. The definition is extremely broad to cover all women, irrespective of their age or employment status (including whether they are employed in the organized versus unorganized sectors or in the public versus private sectors). It covers clients, customers, and domestic workers as well. 

Myth 10: You can file anonymous complaints of sexual harassment. 

Fact: Under the POSH Act, employers are not obligated to address anonymous complaints or take motion cognizance of unreported workplace sexual harassment incidents. Some employers treat anonymously reported incidents as code of conduct issues, while others only act on formal written complaints. According to the POSH Rules 2013, the IC must investigate complaints in line with the principles of natural justice—which require providing the respondent with a fair opportunity to be heard, to cross-examine witnesses, and to present rebuttals against the allegations made against them.

Myth 11: It is mandatory for the IC to accept conciliation requests. 

Fact: The IC has the power to accept or reject the request of an aggrieved woman for conciliation. As per Section 10(1) of the POSH Act, the IC may, at the request of the aggrieved woman and before initiating an inquiry, take steps to settle the matter between her and the respondent through conciliation. 

Myth 12: The POSH Act sets specific timelines for conciliation and settlements.

Fact: No statutory timeline is provided under the POSH Act for either conducting a conciliation or implementing a settlement. Additionally, the concerned parties cannot appeal against an order of settlement arrived at through conciliation.

Myth 13: POSH policy is not mandatory.  

Fact: As per the POSH Act, every employer shall formulate and widely disseminate an internal policy, charter, resolution, or declaration for the prohibition and redressal of sexual harassment at the workplace. Such measures are intended to promote gender-sensitive safe spaces and remove the underlying factors that contribute toward work environments that are hostile against women. 

Myth 14: POSH training is not mandatory.  

Fact: As per the POSH Act, every employer is required to organize workshops and awareness programs at regular intervals for the purpose of sensitizing employees to the provisions of the POSH Act. Employers must also organize orientation programs and seminars for IC members. 

Myth 15: IC recommendations are only suggestive in nature. 

Fact: Employers are mandated to act on the IC’s recommendations within 60 days of receiving them.

Myth 16: An external member’s presence is mandatory in IC meetings.

Fact: Neither the POSH Act nor the rules framed thereunder make it mandatory for an external member to attend IC meetings. According to the POSH Rules, 2013, a minimum of three IC members must be present in conducting an inquiry, with the presiding officer’s attendance being mandatory. However, to ensure transparency and mitigate any potential for arbitrariness, it’s recommended that the organization in question includes an external member (who is objective, unbiased, and free from any financial ties to the organization) during an investigation. 

Myth 17: There are no consequences for false sexual harassment complaints. 

Fact: As per the POSH Act, if the IC carries out an investigation and arrives at the conclusion that the allegation against the respondent is malicious—or that the aggrieved woman or any other person making the complaint has produced forged or misleading documentation—it may recommend that the employer take action against the person making the complaint. Although the POSH Act is intended to give women equal standing and to protect their dignity and self-respect at work, it cannot be abused by women to harass someone with fabricated or false accusations. However, this does not invite action against the complainant in cases where they are merely incapable of substantiating their complaint or providing adequate proof.

Myth 18: An IC can have only four members.

Fact: The law states that an IC should have at least four members. It has a required minimum number but not a maximum. Hence, depending on the size of the organization, the number of offices and administrative units, the number of employees in each location, etc., the number of IC members can be increased. 

Myth 19: An IC needs to be registered with the government. 

Fact: The POSH Act does not state that an IC must be registered with the government. However, registration with the government may be required depending on where an organization’s offices are located (districts) and the number of employees it has. For example, an IC may have to be registered with the government in those states in which notifications have been passed (for instance, Telangana and Mumbai).

Myth 20: The POSH Act does not allow sexual harassment complaints against the same gender.

Fact: The POSH Act defines a “respondent” as “a person” against whom the aggrieved woman has filed a complaint. This means complaints can be made by an aggrieved woman against anyone, regardless of their gender. 

Myth 21: The annual report required by the POSH Act only needs to be submitted if there have been actual complaints of sexual harassment during the year.

Fact: The POSH Act requires the submission of an annual report regardless of whether any sexual harassment complaints were received. The IC is responsible for preparing an annual report (each calendar year) that must be submitted to the employer. Subsequently, the employer submits this report to the district officer (who is typically the district magistrate, additional district magistrate, or deputy collector designated by the appropriate government for each district). 

Myth 22: There is no specific format required for the annual report; organizations can submit it in any format they choose.

Fact: The POSH Act requires the annual report to follow a specific format as outlined in the POSH Rules, 2013. The report, covering the period from Jan. 1 to Dec. 31 of the respective year, must include:

• The number of sexual harassment complaints received.
• The number of complaints disposed of.
• The number of complaints pending for more than 90 days.
• The details of workshops or awareness programs conducted by the employer.
• The nature of action taken by the employer or district officer.

Additionally, the report should include other mandatory compliance details such as the display of posters and notifications within the workplace. District officers may issue specific notifications requesting additional details beyond those outlined in the POSH Act, thereby ensuring comprehensive compliance reporting.

A POSH Act compliance checklist was issued in Gurugram on Dec. 20, 2023. The checklist provides a comprehensive overview of requirements for preparing the annual report under the POSH Act, including, among others: 1) the formulation and implementation of a prevention-of-sexual-harassment policy, 2) the display of notices informing employees about the organization’s stance on sexual harassment and the consequences of indulging in such acts, 3) the implementation of awareness programs to sensitize employees to the act’s requirements and provide assistance to the harassed individual, 4) the appropriate constitution and composition of the IC, 5) compliance with the IC’s recommendations in a timely manner, 6) a statement under Rule 8 of Companies (Accounts) Rules, 2014 confirming compliance with the POSH Act.

Myth 23: The annual report under the POSH Act can be submitted at any time during the year.

Fact: While the POSH law does not specify a deadline for submission, it is generally recommended to submit the annual report by Jan. 31 of each year (aligning with the calendar year reporting cycle).

Myth 24: The POSH Act does not apply when working from home or working remotely. 

Fact: For the POSH Act to be applicable, sexual harassment must occur in a workplace; this encompasses not only physical spaces or structures but also places visited by employees in the course of work. These include interactions on digital/online platforms, events organized by employers and/or clients, and transportation provided by the employer. 

Myth 25: Organizations are not penalized under the POSH Act if they simply have an anti-harassment policy in place.

Fact: Having a harassment policy is not enough. Under the POSH Act, organizations can face penalties for noncompliance, such as failing to establish an IC, not conducting required training(s), or not addressing complaints effectively. Penalties can include fines and other legal repercussions.

Separately, there is a high risk of reputational damage arising out of noncompliance with these laws. Sexual harassment sometimes leads to serious damage to the reputation and goodwill of the organization. Additionally, aggrieved employees often take recourse to various social media platforms to highlight such incidents in public (including any inefficient or unsatisfactory redressal of the grievances). Such social media posts could have a detrimental impact on an employer’s image.

Madhvi Datta is an attorney with Kochhar & Co. in Gurgaon, India.