Fears of Reporting Workplace Sexual Harassment : Barriers to Accessing Justice under the POSH Act

Fears of Reporting Workplace Sexual Harassment : Barriers to Accessing Justice under the POSH Act

Amruta R. Agrawal, Law Student, RTMNU’S Dr. Babasaheb Ambedkar School of Law (Main Branch) Nagpur

ABSTRACT

There is a certain hushed silence that pervades an office in the aftermath of a woman’s decision not to file a complaint. It is the silence of a woman who has weighed all options in her mind and determined that the cheapest compromise is to retreat to her cubicle, to smile at the manager who touched her back, and to tell herself that she has made a rational choice. She has, after all, made a pragmatic decision to not call the complaint hotline and to stow away the evidence in the deepest vaults of her memory. She calls it survival. It is not.

More than a decade has passed since Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as the POSH Act, was enacted to tackle sexual harassment in India. The progressive legislation promised to establish rights for working women, including a right to a workplace free of sexual harassment. It mandated the setup of Internal Complaints Committees and due process, including investigation and redress mechanisms. But, in spite of this comprehensive law, India still has one of the highest rates of unreported cases of sexual harassment in the workplaces. Between 70 to 90 percent of all sexual harassment cases go unreported according to various audits and research, conducted every few years by governmental and non-governmental agencies. The number is an approximate guess as there isn’t any centralized database to capture the number of actual cases. The disconnect between the number of women, who are harassed and who report it, is the reason why this article exists.

I. What The Law Actually Wanted

Before jumping to the conclusion that the law was ineffective, here’s what the law actually wanted. 

The POSH Act mandates all employers with more than ten employees to constitute an Internal Committee (IC) to receive and inquire into complaints of sexual harassment. The law also instructs them to conduct awareness and sensitization programs. It also mandates that the employer treats sexual harassment as a disciplinary misconduct, which could result in action against the accused. 

The Act also stipulates that inquiry by the Internal Committee must be completed within 90 days of filing of a complaint and resolution within one year. The process is meant to be confidential and violators are subjected to penalties. The law also lays down a parallel mechanism by directing every district to constitute a Local Complaints Committee (LCC) to facilitate filing of complaints by women working in the unorganized sector or in establishments which do not have an Internal 

Committee. Under the POSH Act, an employer who does not constitute an IC could be penalized. 

The Act also mandates that the identity and personal information of the complainant must be kept confidential.

The above-quoted verbiage from the POSH Act makes it one of the most progressive legislations on workplace sexual harassment globally. One would then wonder as to why Indian women, when asked, say they would not file a complaint because nothing would happen or that they feared what could happen. The reasons are many and nuanced and we have tried to capture all of them below.

II. The Fear That Comes With Many Faces

Women fear reporting harassment because their mind isn’t ready to confront the multiple possibilities of what could happen post a complaint. Some of the reasons, therefore, overlap, but we have grouped them into six broad categories.

1. The Fear Of Retaliation

It is the most common and arguably rational fear that a woman who experiences sexual harassment would have. In most cases, sexual harassment occurs at the hands of her immediate superior or a client. In most such cases, a complaint under the POSH Act would be perceived by the accused as a professional move to sabotage the career of the complainant. The law states that retaliation is a punishable offense, but the truth remains that retaliation is a tool that is often deployed by the accused or the employer who wants to protect the accused. In most cases, such retaliation is subtle, with the employer taking umbrage at the fact that the employee has crossed them. This could show in multiple ways ranging from the woman not being invited to important meetings or projects being diverted to others. The woman may also be passed over for promotion citing “inappropriate behavior” or “unprofessional attitude.” None of these instances could be proven in a tribunal, but the woman would be left with the nagging feeling that her complaint was the reason. For women working in smaller firms, who do not have the protection of an Internal Committee or even HR, the fear of retaliation is tangible. If the accused happens to be the owner of the firm or the sole authority, there may not be any recourse. The law is also silent on the powers of the Internal Committee to take action against the employer or the firm.

2. The Shame Factor

India has a deeply ingrained stigma around sexual harassment that makes it difficult for a woman to even contemplate disclosing it. The POSH Act may have helped in normalizing sexual harassment as a workplace issue, but there is still that stigma in wider society that a woman who is harassed somehow “asked for it” or “let it happen.” In many cases, especially in the older generation, there is a belief that harassment is a price to be paid to climb up the corporate ladder. 

That belief is still entrenched in Indian society and it is a significant factor in deterring women from reporting incidents. Even among women, the fear of disapproval by the family and peers, in case of complaint, is a major deterrent. It is, therefore, not uncommon to see women who have complained being shunned in their own homes or by their families. Survivors often feel the stigma more when it comes to an employer’s reaction. In the minds of many women, if the complaint is made, the employer will react disproportionately and take punitive measures against them. Even though the law says the identity of the complainant cannot be disclosed, that doesn’t stop gossip in the office from erupting. The same employer may also hold a personal grudge against the woman for the complaint. Studies have shown that women fear being “labeld” more than they fear the sexual harassment itself. They also fear the social censure that follows. The POSH Act doesn’t recognize the social aspect of the problem. It only addresses the legal framework. As a result,women are made to suffer the consequences of the sexual harassment they have experienced, not just in the professional sphere, but also socially.

3. The Power Dynamic

Sexual harassment in the workplace involves a power dynamic where the harasser holds a position of authority over the victim. It could be a superior in the hierarchy, a higher-level manager, or even a client who possesses significant control or leverage over the victim’s job. The power imbalance inherent in such situations often leaves the victim feeling powerless, making it challenging for them to retaliate or report the harassment without risking their professional prospects.

When a woman is in a lower position compared to her harasser, she faces immense pressure to remain silent due to the fear of jeopardizing her career. Junior employees hesitate to complain about senior staff due to concerns about repercussions or job insecurity. Similarly, contractual workers may be unwilling to take action against permanent employees, and customer-facing staff 

may refrain from reporting issues with clients due to economic dependence. Essentially, individuals who do not have the protection or support of the company find themselves in a vulnerable position when it comes to reporting sexual harassment.

While the POSH Act aims to address this issue by requiring Inner Committees to have a woman as the presiding member and ensuring fair treatment of the complainant, the practical power dynamics within organizations may not always align with these legal provisions.

4. Lack Of Trust In The Committees

One of the most crucial features of the POSH Act is the Inner Committees that are required to be set up by every organization that fulfills the criteria. In theory, these committees are the first responders to a sexual harassment complaint. But, there aren’t enough such functional committees. 

Many committees are formed just to tick a box that satisfies the law and then rarely meet or take action. The members are also not trained or equipped to handle sensitive issues such as sexual harassment. The presiding member, who is the most important member of the committee, is often the head of HR. This means that, in theory, the person who the woman must approach to register the complaint is also the one who will hear it and take any disciplinary action. That is when the woman’s mind starts working overtime. The Internal Committee is supposed to be a forum that will investigate her complaint with due diligence and protect her, but she is afraid that the committee will protect the accused instead.

The Local Complaints Committee (LCC) that has been set up to deal with sexual harassment complaints in the unorganized sector doesn’t have the reach or resources to handle the problem. 

There are many women who don’t know about the LCC or who do not know how to navigate the formal process of filing an FIR. For most women in the unorganized sector, harassment is not a legal issue, it is a survival issue.

5.The Procedural Hurdles

According to the POSH Act, a woman who wishes to make a formal complaint must follow procedures and protocols. She would have to approach either the Internal or the Local Complaints Committee. She would be expected to give details of the incident and also provide evidence, where possible. The complaint would be subjected to a formal inquiry and the woman would be made to give her statement. During the cross-examination, she would have to testify against the accused and answer questions from both sides. All of this is time-consuming and for many women, especially those working in the organized sector, it could be an unwanted detour from their careers. 

Most women who opt to withdraw their complaint do so not because they are not aggrieved but because the process puts them through multiple hoops. In addition, for women working in the private sector, it could entail facing the accused in court. Women would also have to take leave from work for the duration of the inquiry and the subsequent trial. For many women this is a high opportunity cost and they may decide to drop their complaint.

6.The Workplace Culture

In some workplaces, harassment is normalized and tolerated. This is particularly true in workplaces where the male employees are used to getting away with touching women, commenting on their 

appearance and making misogynistic remarks. In such an environment, it is natural for the woman to feel that reporting harassment will not be taken seriously by her colleagues or management. If the woman has been a part of the company for long enough, she will also understand that the culture of the workplace is not conducive to addressing sexual harassment complaints seriously.

While the POSH Act does require companies to create awareness about sexual harassment, the effectiveness of such initiatives can vary depending on the workplace culture. Women in such environments may find it challenging to rely on the Internal Committee to take appropriate action.While the law is a fantastic first step, it has many loopholes that need to be addressed for it to be completely effective in addressing sexual harassment in the workplace.

III. What the Numbers Say

Various surveys conducted over the years by the International Labour Organization, Feminist Jurisprudence Collective, CARE India, and multiple corporate employee wellbeing research bodies, indicate that 30-50 percent of urban working women have experienced some form of sexual harassment at the workplace. Less than 10 percent of these women go on to file a formal complaint, and of these, a large percentage find the process of filing and subsequent enquiry to be far more traumatic than the incident itself.

Thousands of complaints are received by the National Commission for Women, on a yearly basis, of which the proportion attributed to the POSH Act, is significantly low. This indicates that either women are not approaching the law, or that they approach it only after far greater escalation of the issue.

IV. What Would Actually Help

There is no magic bullet, but there are a set of important changes that would make a substantial difference to the situation at hand.

Firstly, A change to the anonymity of the initial approach to the Internal Committee, would allow women to seek advice, without the fear of immediate formal redressal. A confidential advisory service, completely independent of the workplace structure, would offer a suitable channel to women, where they may receive information pertaining to their options and rights, prior to taking any formal action.

Next, Actual training for the Internal Committee members, goes a long way in ensuring credibility of the process. The Internal Committee cannot take up roles as adjudicators, investigators, counsellors, witnesses, and advocates for the organisation, with only a two hour orientation. The credibility of the law rests on the Internal Committees, and their ability to perform their mandate. 

The ICs require trauma management training, as much as they require investigation protocol training.

The culture change in the workplace, that the law seeks to enable, needs to start with the people in charge. Talking endlessly about the problem is not enough; there must be demonstrable punitive actions taken against the smaller level perpetrators, in order to visibly change the workplace culture. There must be a level of accountability, not just from the rank and file employees, but also from the managers and executives of organisations. If the law exists only on paper, then it becomes a farce.

The LCCs (Local Complaint Committees) appointed by the law, need to be brought closer to the unorganised sector, in order to be genuinely accessible to them. The LCCs must have outreach workers, who can travel to the women, rather than the other way around. The unorganised sector consists largely of women who live and work in villages, slums, industrial belts, and maid service networks. These women will not come to an enquiry room in downtown, if it requires them to take leave from work, or if they do not know that it exists.

Legal aid and counselling should be made mandatory, for the simple reason that no woman should have to choose between her livelihood and her right to justice. No woman should have to pay to be heard, and no woman should have to fight a sexual harassment case alone and in isolation. This is true for women in the unorganised sector, in the same way that it is true for women employed in corporate offices. The POSH Act must fund legal aid and counselling services, as a matter of priority. The woman who has been harassed at work, is not prepared to fight a cross examination, emotionally and legally. The law must fight for her, instead.Finally, It is necessary to start making companies financially accountable for non compliance. The POSH Act already allows for monetary penalties for organisations failing to constitute an Internal committee, or for filing annual reports with the concerned government authority, or for not taking action on a sexual harassment claim. These monetary penalties are rarely imposed, and until they become the norm, rather than the exception, the law will continue to exist only on paper.

V. The Human Element

The POSH Act was drafted, debated, and passed by people, who understood that the issue of sexual harassment at the workplace, was not just a women’s issue. It was an organisational capability issue, a productivity issue, a justice delivery issue, and most importantly, it was a human issue. At its very core, it was a question of whether a woman could work in India, and retain her dignity. But a law can only be as strong as the faith and trust of the people it protects, and that faith and trust can only be earned. It begins when just one woman walks into an Internal Committee, and is believed. It builds when another woman walks in, after having heard about the first woman, and is believed as well. It is earned, steadily, one by one, by every woman who is heard, and who is not punished for speaking out. Until that happens, until the silence in our offices and industries turns into the muttering of women who are being heard, the POSH Act will remain little more than pretty words in a law book. The women are not silent because there is nothing to be said, but rather because it is not safe to speak. It is our responsibility to change that.