An Expert’s Advice For Complainants Of Prevention Of Sexual Harassment Act At Workplace

I had the honor of attending a live webinar conducted by Antony Alex, founder, and CEO of Rainmaker, where he speaks with an expert Ms. Veena Gowda. Ms. Veena is a women’s rights lawyer practicing before various courts for over two decades. Antony spoke to her on the subject of Making a Complaint under the Prevention of  Sexual Harassment Act at Workplace.

Ms. Veena beautifully brought out nuances and practicalities, while emphasizing the intention of the Law on Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act & Rules 2013 (“PoSH law“).

What are my takeaways?

Here are some takeaways which I believe will be extremely helpful to anyone contemplating on filing a complaint of sexual harassment before the PoSH Committee Members. The Internal Committee (IC or ICC), popularly known as the PoSH Committee, is constituted Vide Section 4 of the PoSH law to redress sexual harassment complaints.

• Why should I (Complainant) give my complaint in writing?

The simple answer is, the PoSH law mandates it. But let’s look at it from the Complainant’s point of view. Why would she even ask this question? It could be that she is intimidated by the process and perceives it as further harassment. Ms. Veena clarifies that the intention of the PoSH law while mandating this requirement is far from inconveniencing the Complainant. It merely is to;

1. Help the Complainant put down all the facts & circumstances of the case. Giving an oral complaint could lead to omitting details inadvertently.
2. It is of paramount importance to be consistent with the alleged incidents’ details, from the time of filing a complaint to the subsequent proceedings that one has to undergo before the PoSH Committee. Inconsistency could lead the PoSH Committee Members to disbelieve the facts as may have been stated by the Complainant. Hence it is in the interest of the Complainant to submit a written complaint.
3. This law mandates the PoSH Committee follow the Principles of Natural Justice. The Respondent (the person against whom the allegations are filed) has a right to receive a written copy of the complaint which offers him an opportunity to present his side of the narration of events which may/may not have taken place. Hence, it is pertinent that the Complainant submit a written complaint, as mandated by the law.

• The last incident in a series of sexual harassment incidents, is said to have happened five months back. Currently, the Complainant is being subjected to a hostile work environment. Is it too late to file a complaint? 

The answer is that it is not too late. The Complainant is encouraged to file a complaint. Let me explain this in light of the law. 

What is the Limitation Period under the PoSH law?

Under the PoSH law, there is a limitation period of three months (90 days) within which complaints can be filed. A Complainant must file a complaint within three months of the incident. If there have been a series of incidents, then the complaint should be filed within three months of the last incident. 

The law mandates that the IC can, for the reasons to be recorded in writing, extend the time limit for another three months, if it is satisfied that the circumstances were such which prevented the Complainant from filing a complaint within the stipulated time period.

The law also provides that in a scenario where the Complainant may be unable to file a complaint on account of her physical or mental incapacity or death, her legal heir may file a complaint.

Does Retaliation constitute Sexual Harassment?

When there is retaliation for resisting sexual advances, the retaliation itself can be termed as sexual harassment in the workplace. Retaliation is considered as a form of offensive, intimidating behavior which leads to a hostile work environment. 

If an incident of sexual harassment had taken place an year ago but the retaliation has continued thereafter, the Complainant has every right to file a complaint.

• The person (Respondent) who sexually harassed me is very senior, and everybody normalized his actions by stating that such things happen, so I didn’t file a complaint. Eventually, I left the organization due to his behavior. Can I complain now?

The answer is, “Yes, you can!” It doesn’t matter whether you are an employee or not. What matters is whether he is still an employee. As long as he is still serving in that organization, the PoSH Committee can inquire into the complaint, provided the complaint is made within the Limitation Period (discussed above). You will have to be present for the inquiry related meetings, as and when the PoSH Committee summons you. Your cooperation in this regard will be necessary.

Concerning the Respondent’s seniority, one should not feel intimidated. Here’s why.

How does the law provide for Unbiased Investigation?

The PoSH law has, among other things, provisioned a PoSH External Member to be part of the PoSH Committee. The External Member is an independent third party and has expertise in issues of women. This measure has been incorporated into the Act to ensure that a transparent, fair, and just inquiry takes place.

If the complaint has to be filed against the head of the organization, then the complaint should be taken to the Local Complaints Committee (LCC or LC). The LC functions at the district level.

Ms. Veena implored the listeners to understand the reasons behind the requirements in the process of inquiry. (Some of them are stated in this blog). She urged them to try to follow the requirements “simply and to the best of your ability.” This attitude on the part of the complainant will help her stay focussed and not get intimidated by the process or the Respondent. 

Why is the PoSH law called a Beneficial Law?

The spirit behind the PoSH law is that it is a beneficial law for women who have been “marginalized and oppressed” at the workplace since ages. Men dominate the workplace due to their sheer majority and due to our patriarchal society. This is probably the reason why the PoSH law is only for women. But the aim of the PoSH Act 2013 is not to marginalize any particular gender. The aim is to provide protection to women at the workplace. Any office which is safe for women to work in would also have a healthy work culture.

What is my biggest Takeaway?

The PoSH Committee Members should not be adversarial to the Complainant or the Respondent while trying to uphold the PoSH law’s provisions. Hence, they should not read this law very literally and technically.

On a parting note: 

Let us not forget that these complaints are not criminal cases. Hence, the Balance of Probabilities is to be taken into account if required—more on that in another blog. 

I am grateful to Rainmaker for conducting these enriching webinars regularly, and most importantly, free of cost.

Rainmaker provides expert guidance with all aspects of PoSH related inquiries. It is No. 1 amongst PoSH Compliance service providers. It offers PoSH awareness training for employees and PoSH workshops for PoSH Committee Members. All offerings come in online/virtual and physical mode. 

I hope you found this blog helpful. Please reach out with your questions or comments.

For PoSH training for employees, check out our PoSH e-module, WorkSafe DELTA trailer today. https://www.youtube.com/watch?v=3cVxAPKkGQ4

Author: Sumali Nagarajan

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