Myths are not uncommon in business. The topic of sexual harassment topic is no exception. After handling 300+ sexual harassment complaints, we have been able to address some but the rest which were nothing but myths.
Two very important myths that the Sexual Harassment of Women at Workplaces Act (Prohibition, Prevention & Redressal Act) or PoSH Act of 2013 directly addresses are: a) Physical contact is a must to constitute sexual harassment. b) Only corporates are covered under the PoSH law.
The Sexual harassment of Women in the Workplace (prevention, prohibition, redressal) Act expanded the definition of sexual harassment to include verbal non-verbal incidents. And the courts have ruled, more than once, (Medha Kotval Vs Union of India, Apparel promotion council Vs AK Chopra) that physical contact is not a must to constitute sexual harassment.
Any business establishment with more than 10 employees falls under the PoSH Act 2013 and should be addressing sexual harassment complaints in the workplace. This includes factories, hospitals, schools, IT parks, retail establishments etc.
The act has also redefined what a workplace is, simply put workplace is as ‘where work takes you’. This leads us to busting another myth that if the sexual harassment incident took place elsewhere, then company is not responsible. Cafeterias, training venues, client offices, home after office-hours parties conducted by the company are all considered workplaces.
We have also come across some fair questions that deserve to be addressed, namely:
Only companies who employ women need to take care of Prevention of Sexual Harassment (PoSH) – The Act protects any woman who walks into the workplace; this includes and is not limited to housekeeping staff, customers, auditors, interns, trainees, contract staff. Even a woman who comes in for an interview has the right to file a complaint.
If a person is accused of Sexual Harassment, they will be terminated – This is just a myth, the PoSH act provides for a range of outcomes, from a simple warning letter to transfers, withholding of promotion or bonus or a fine. The punishment given is proportionate to the act. The Internal Committees, where KelpHR representatives act as external members, are all well trained to assess this fairly.
“If I complain then the whole company will know about it.” “If I complain then I’m doomed, I will be targeted” – The PoSH act, if understood properly, is one of most powerful labor law in practice. It offers protection for the victims and witnesses by prohibiting retaliation of any kind. Confidentiality is almost sacred. Sec 16 & 17 of the Act imposes penalty for not maintaining confidentiality. Here, not only the victim, but the interests of the respondent and witness are protected as well.
Like every good law the PoSH Act also attracts concerns like malicious complaints or misuse of power. Sometimes, one hears of the IC taking the complainant’s side or the complainant using sexual harassment complaints to get back at a male colleague.
This can be addressed in two ways. One part is through the Act – Section 14 of the act specifies how to handle malicious complaints and the redressal mechanism comprising of the Internal Committee is well equipped to conduct fair, just, well-informed inquiries guided under by the principles of natural justice. One of the reason’s Subject Matter Experts are invited to be a part of the Internal committee (IC), as external member’s, is so that prejudice can be avoided.
The other part is the intention to get back at someone since talking about sexual harassment is still taboo in our country; not many women can expect families to support them if they file a complaint. For a woman to get over the fear and hesitation and file a complaint is difficult and requires family as well as other support over the course of the process. In fact, out of the 300+ cases we have handled, less than 5% were cases that could have been false.
One also has to remember that the IC is a quasi-judicial body with the power of a civil court, so anyone who testifies is under oath. This tremendously adds to the credibility of the proceedings and the authenticity of the testimonies. In the past eight years we have seen witnesses who were summoned to testify end up saying, “I don’t really remember”, but at the same time, lying to save someone, taking misconduct to an entirely new level. This is something that we do not expect working professionals to indulge in.
Being a society-altering law, the PoSH act can be a double-edged sword. We have sometimes witnessed a hesitation to hire women to avoid sexual harassment complaints in the workplace. This would amount to discrimination, and it is to be feared more than all the myths we discussed so far. Leaders must be wary of this trap and ensure they do the right thing by building a diverse and inclusive organization.