What is Gender Neutrality under the POSH Act?
Historically, the brunt of discrimination, sexual harassment and gender bias has been faced by women. World over, and specifically in Indian society, patriarchy is a frontrunner, be it in a personal or a professional setting. At the workplace, men typically assume roles in senior management and comprise the majority – all valid reasons to ensure the protection of women.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), as the name suggests, was enforced to protect women at the workplace. However, in today’s day and age, the idea of gender is blurring. Therefore, what is construed as sexual harassment, sexual misconduct, who perpetrates sexual harassment or sexual misconduct towards whom, and, with gender inclusivity becoming the norm, these are widely discussed topics amongst most organizations. In light of this, HRs across the board are questioning whether their internal POSH policy is gender neutral.
Generally, critics of the POSH Act have often reiterated that the law discriminates on the basis of gender, owing to its applicability only to cis women. So what about the concerns of employees identifying with other genders?
While the need for a gender neutral POSH policy is not presently codified, it is argued that as a best practice, organisations should implement one so that members of all genders can file a sexual harassment complaint in case of an incident of sexual harassment.
What do we mean by a gender neutral approach to POSH?
Sexual harassment at the workplace can take place with anyone belonging to any gender.
Does the POSH Act focus only on Women?
While the POSH Act explicitly protects aggrieved women, it provides men with a redressal mechanism to plead their case in the event of a false or malicious accusation. It provides all persons an equal opportunity to be heard, in line with the principles of Natural Justice.
Case Study 1
A cisgender woman in a higher position of power tries to force herself upon a bisexual man in a junior position without gaining their consent, by telling them that she could ‘out’ them to the workplace if they do not give in.
In this case, who can the junior complain to?
Case Study 2
A gay male employee in an executive position sends inappropriate photographs of himself to a junior male employee even after the junior employee has confronted the senior and asked him to stop.
In this case, who should the junior approach to file a complaint?
Complaint Filing & IC Jurisdiction
A current drawback of the POSH Act is that a complaint can only be filed by an aggrieved woman under the POSH Act. In fact, in Anamika v. Union of India & Ors., the Delhi High Court ordered the police to investigate a matter concerning sexual harassment faced by a transgender, but only because she identified as a woman and had a legally authorised identity certificate to prove it. In this case, the transgender was accorded the same rights as a woman under the POSH law.
Presently, the POSH Act does not cover men or transgender men under its ambit, and therefore, an IC does not have jurisdiction to preside over a complaint filed by either. However, transgenders can seek protection under the Transgender Persons (Protection of Rights) Act, 2019 (TP Act) whereby organizations are required to appoint a Complaints Officer to deal with sexual harassment or discriminations faced by transgender persons.
Guide to Drafting a Gender Neutral POSH Policy
The POSH Act does not mandate that an organisation’s POSH policy needs to be gender neutral. However, there are other strategies that employers can adopt to make employees feel safe and comfortable in their working environment, in a gender neutral manner. One way to do that is by incorporating a gender neutral POSH policy. For example, many companies in India have adopted a POSH policy which clearly states that it is gender neutral and therefore, is based not just on the POSH Act, but on principles of Articles 14, 15, and 21 of the Indian Constitution. These Articles take into account a person’s right to equality, life, personal liberty, and discrimination.