By Aradhana V. Gorur (Associate, Trilegal), and Vinduja Menon, (Senior Associate, Trilegal)
Introduction
Complaint mechanisms are often seen as solutions that can empower individuals to redress issues they face. For issues relating to sexual harassment at the workplace, that complaint mechanism is outlined in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). While the POSH Act has played an important role in promoting safer and more empowered workplaces, its purpose is often undermined by various challenges that prevent women from fully using these structures.
When considering complaints of sexual harassment, there is no ‘one size fits all' approach. Every woman has a different experience and a myriad of factors need to be assessed while considering what hampers women from reporting sexual harassment complaints. These include significant issues such as the risk of exposing the reporter, challenges in accessing available mechanisms, and the need for safeguards against retaliation. It also involves personal and psychological challenges, such as the emotional burden of filing a complaint, and the fear of being isolated or treated differently afterward. This blogpost delves into the common challenges women encounter when navigating workplace structures designed to address sexual harassment.
Hurdles to effective redressal of sexual harassment complaints
The POSH Act was a milestone in addressing workplace sexual harassment in India, but gaps in its design and implementation continue to hinder its effectiveness, as explored below.
Absence of mechanisms to protect anonymity
The POSH Act currently recognizes only written complaints that identify the victim, i.e., there is no provision for the processing of anonymous complaints. From a legal perspective, it is logical for such a system to be in place. The principles of natural justice (here, specifically that of audi alteram partem) would be grossly violated if the respondent were not accorded with every bit of information necessary for an adequate defense. However, from a social lens, this requirement invariably impedes many women from making complaints. Practically speaking, women are uncomfortable and even daunted by their identity being revealed, fearing any social backlash, shame or retaliation. It has been more than 10 years since the introduction of the POSH Act, highlighting the need to address this gap in the framework. In the meanwhile, organizations may also voluntarily build in mechanisms to handle anonymous complaints.
Conciliation as an option
Conciliation as under the POSH Act is a process by which the internal committee (IC) assists the parties involved in the sexual harassment complaint settle the matter between themselves, without an investigation. However, it requires the victim to directly face their harasser. While the POSH Act states that conciliation can only happen at the victim’s request, principally speaking, a victim should not have to face their harasser, nor should there be a process by which such interaction can resolve a wrongdoing. Removing this provision is a necessary step being undertaken via the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Amendment Bill, 2024.
Fear of retaliation
One of the biggest concerns cited by women for not filing complaints in our experience is the fear of retaliation. Despite anti-retaliation assurances under the POSH Act, many women fear these promises are just words on paper. Retaliation can take subtle forms, like poor performance reviews or being excluded by senior colleagues. This fear is especially intense when the victim is a junior employee, and the harasser holds a senior position. Organizations should take proactive steps to ensure that retaliation, in any form, is effectively prevented.
Lack of evidence
In investigating sexual harassment complaints, ICs are consistently tormented by one thing – the lack of evidence in these cases. More often than not, investigation into sexual harassment complaints boils down to a he-said she-said showdown. In such a situation, the IC is invariably left confused on the next steps. In our experience, time is of the essence in these investigations. Witnesses remember the incident better and there is a higher chance of obtaining physical evidence, if any. For example, a fast-acting IC may be able to obtain CCTV footage prior to its deletion.
Lack of accessibility and approachability
While many organizations have anti-sexual harassment policies in place with a strict zero-tolerance approach, the implementation of these policies often falls short of the promises made. One key issue is the assumption that all employees are proficient in English and digitally literate. For example, workers in manufacturing or retail may not have regular access to company intranets or email, making it difficult for them to access online policies or resources to report concerns. This creates a barrier, making it easier for some employees to approach the IC, while others may struggle to access or understand the policy. Numerous other accessibility challenges exist, preventing the policy from reaching its intended audience and limiting its overall effectiveness.
Societal biases
When a woman experiences sexual harassment, whether at work or elsewhere, she often faces the added burden of worrying about societal reactions if the incident becomes public. Unfortunately, outdated notions still exist that place blame on women for being harassed. The fear of victim-blaming, shaming, exclusion, or ostracism can significantly deter women from filing complaints, even when the harassment occurs in the workplace. This is perhaps worsened by the current narrative seen being what is sexual harassment, how it happens to other people, and what one can do when it happens to them. Very rarely is there an instruction to people not to harass.
Conclusion
In conclusion, though the POSH Act has made significant strides in providing legal avenues for addressing sexual harassment at the workplace, its implementation faces numerous challenges. The absence of anonymity, the outdated conciliation process, fears of retaliation, lack of evidence, and societal biases all contribute to the hurdles women face when seeking justice. It is crucial to recognize these complexities and introduce measures to address them, to truly make the POSH Act robust. Only then, can we create truly safe and supportive environments for women to come forward and seek redress for workplace sexual harassment.
*Views expressed are personal.
