Legality of gender-neutral POSH policies
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the Act) protects women from facing sexual harassment in Indian workplaces and provides a redressal mechanism in the form of an Internal Committee (IC) that is to be constituted by every organisation having more than 10 employees working in their premises.
It is condemned by a lot of people for being gender biased since, only women are offered protection under the Act. However, in my opinion, the Act is not gender-neutral but it is definitely not gender biased, as the Act was passed to mitigate the bias that was already existing in the society towards the female gender.
Article 14 of the Indian Constitution allows for reasonable classification on the basis of intelligible differentia (difference capable of being understood), provided a nexus is established between the differentia and the object sought to be achieved from such a classification. When it comes to sexual harassment cases, women are more prone to such critical incidents and the object is to provide a quick access to justice. Hence, the Act exclusively protects women.
A lot of organisations fail to understand the rationale behind the Act and in order to stand out they end up publishing a gender-neutral POSH policy that provides protection to the male and LGBTQ employees as well. Even though it is a very progressive step in itself, it is vital to not overlook the legal implications of such an approach.
Legal implications of a gender-neutral POSH policy:
The Internal Committee (IC) is formed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Internal Committee (IC) is vested with the powers of a civil court under the Code of Civil Procedure, 1908 through the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
These powers include:
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
It is important to note that the IC is vested with these powers and jurisdiction to adjudicate the cases regarding workplace sexual harassment through the Act. Since, the Act covers only an ‘aggrieved woman’ under Section 2(a), the IC will not have jurisdiction in cases where the victim is not a female. Hence, the IC cannot exercise its powers of a civil court in the cases where the victim is not a female.
How to protect male and LGBTQ employees from workplace sexual harassment?
An organization can choose to protect them under its service rules and allow the IC to investigate the cases involving male and LGBTQ victims by providing such a provision under the company’s service rules and take necessary action as the service rules may permit. It will be deemed as a disciplinary action. However, such cases will not fall under the ambit of the Act and therefore, they will not be a part of the organisation’s annual POSH report. In such cases, IC will not have the powers of a civil court to summon and enforce the attendance of any person and examine him on oath or requiring the discovery and production of documents.
Does this mean that if an organisation doesn’t have any female employee, it is not required to comply with the Act?
NO. Because, the Act protects any woman who walks into the workplace irrespective of whether she’s an employee of the organisation or not.
For example-
Organisation X has 12 employees and all of them are males. A swiggy delivery woman is harassed by an employee of the organisation X where she went to deliver the food. This woman despite of not being an employee of the organisation X, is protected under the Act and can seek justice from the IC of the organisation X. Hence, it becomes the legal obligation of organisation X to sensitize its employees about the Act and also have an anti-sexual harassment policy in place along with a properly constituted IC.
