Gender Neutrality and POSH Law

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) was enacted to prevent any form of sexual harassment against female employees in the organization.

The Act was a need of the hour to ensure safety of female employees in the workplace as their representation started showing a significant rise. The ground-breaking provision in the Act was the introduction of Internal Complaints Committee (IC or ICC). This was an appropriate solution to the problem of filing complaints under the Indian Penal Code and having to go after the never-ending legal fights.

The Act mandates the IC to conduct investigation and submit report to the employer within a specific time-period. This provides an effective and efficient relief to the aggrieved. The complainant can still pursue the case in the court of law if she wishes to; and organization is expected to assist in doing so.

Questions raised pertaining to Gender Neutrality in POSH Law:

“Why is it that only women are given legal protection?”

“Where should men go to file a complaint if they are sexually assaulted?”

“For that matter, where should any other gender go to file a complaint?”

It is true that the Act may sound a little biased towards women. Debates are still going on.

Even though, the Act was introduced to protect equality and diversity in organizations, ironically it beats the purpose because none other than women are protected by the Act. While women feel empowered, others may feel discriminated. What is the solution to this?

One may think, making the organizational POSH policy gender neutral is a possible solution. This would mean anyone can file a complaint in front of the IC and gives IC the power to investigate cases for all genders. Though this looks like an apt solution, there a few legal complications with it.

The organizational policy drafted according to the Act cannot be gender neutral because the Act does not allow it. The Act gives the IC the power of a civil court while investigating cases under the Act. This means IC has the power of a civil court only when the cases are filed by women employees. The powers vested with IC, like the power to summon complainant, respondent and witnesses for questioning; demand for documents as evidences or recommend actions once investigation is completed are applicable only for a complaint filed by a female employee.

This is a tricky situation. What should the organization do? Should it simply oblige to the Act and neglect the rights of other genders? Not necessarily.

Consideration of Gender Neutrality in POSH Law

The organization can still protect its non-female employees by having a separate policy on harassment and sexual assault, which is part of the service rules of the organization. In this policy, IC can be vested with the authority to investigate cases of sexual harassment for all genders. You must note that the actions recommended will only be counted as disciplinary actions and will not be part of POSH Act. Additionally, the organization need not mention about the cases filed by non-female employees in the Annual Report. Nevertheless, training and awareness programs conducted can be gender neutral.

Feel free to contact us to get a customized POSH training course to meet the unique POSH policy requirements of your organization.

When analysing the debates on the topic of gender neutrality and POSH Act, a positive sign we noticed is that the concern was not just for women but for any gender that does not fall under the category of “female”. We started looking beyond the male-female paradigm. It may not be easy to introduce a gender-neutral sexual harassment prevention policy as it comes with its own challenges. We will look more about it and the ways to tackle the challenges in another blog.

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