Gender Sensitization & Prevention of Sexual Harassment at the workplace (POSH)

Differences between Sex & Gender

Sex
Sex identifies the biological differences between women and men.

Gender
Gender is the culturally‐specific set of characteristics that explains the social behavior of women and men and
the RELATIONSHIP between them. Gender therefore refers not simply to women or men, but to the
relationship between them, and the way it is SOCIALLY CONSTRUCTED.

Gender is an analytical tool for understanding social processes:

 Gender differs from sex in that it is social and cultural, rather than biological.
 Gender attributes are shaped by the economy, by religion, by culture and by traditional values.
 Gender refers to the economic, social and cultural attributes and opportunities associated with being
male or female.
 Gender attributes differ from society to society, and change over time.

Gender v/s Sex: An Analytical tool

Many people confuse the term "sex" and “gender" or aren’t sure what exactly they mean. This
tool is designed to help us reach a simple, common understanding of the two terms.
Without going into the truth or falseness of the statements below, indicate next to each one
whether it is about sex or about gender.
Place a tick in the appropriate box.
Sr. Statements Gender? Sex?
No.
1. Women earn less money than men do. 
2. Men can’t cook. 
3. Women have larger breasts than men. 
4. A husband cannot follow his wife on a diplomatic posting. 
5. Girls drop out of school more than boys do. 
6. In most African traditions, women do not own land. 
7. A man is the head of the household. 

POSH Page 1
 8. It is not the job of the father to change nappies. 
9. Men don’t cry. 
10. Girls dress in pink, boys dress in blue. 
11. A wife cannot initiate the sex with her husband. 
12. There are more male leaders than female leaders. 
13. A man cannot get pregnant. 
14. Men make good doctors, women make good nurses. 
15. A girl cannot propose marriage to a boy. 

What study says?

A 2012 study conducted by the United Nations Population Fund (UNFPA) showed that 62.3% of
women in the wholesale and retail industry, educational sector, and financial intermediary sector have
experienced sexual harassment in the workplace.
Similarly, 57% of female garment workers have reportedly faced sexual harassment at work and 11% of
migrant workers have suffered sexual abuse at the hands of their foreign employers.
A survey conducted by the International Federation of Journalists in 2015 also revealed that 29% of the
female journalists in Sri Lanka have been exposed to sexual harassment.

Woman at workplace

Domestic Worker

Regular/
Temporary/
Adhoc/Daily wager

For
Working remuneration/volun
tary basis/otherwise

Employed
Aggrieved Woman Viting a workplace directly/through an
agent

Contract
Student worker/Probationer
/Trainee/Apprentice

POSH Page 2
Definition of Sexual Harassment
Includes any one or more of the following unwelcome acts or behavior (whether directly or by implication)
namely:
(a) Physical contact or advances
(b) A demand or request for sexual favors
(c) Making sexually coloured remarks
(d) Showing pornography
(e) Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
Other Behaviors
i. Implied or explicit promise of preferential treatment in her employment: or
ii. Implicit or explicit threat of detrimental treatment in her employment; or
iii. Implied or explicit threat about her present or future employment status: or
iv. Interference with her work or creating an intimidating or offensive or hostile work environment for
her; or
v. Humiliating treatment likely to affect her health or safety

What is workplace?
Any department, organization, undertaking, establishment, enterprise, institution, office, branch or unit
which is established, owned, controlled or wholly or substantially finance by funds provided directly or
indirectly by the appropriate Government or the local authority or a Government company or a
corporation or a co‐operative society;
Hospitals or Nursing home any sports institute, stadium, sports complex or competition or games venue,
whether residential or not used for training, sports or other activities;
Any private sector organization or a private venture, undertaking, enterprise, institution,
establishment, society, trust, non‐governmental, organization, unit or service provider carrying on
commercial, professional, vocational, educational, entertainment, industrial, health services or
financial activities including production, supply, sale, distribution or service.

Client Place
Any place visited by the employee arising out of or during the course of employment including
transportation provided by the employer for undertaking such journey.

Where else?
A dwelling place or a house
POSH Page 3
"Unorganized sector" in relation to a workplace means an enterprise owned by individuals or self‐
employed workers and engaged in the production or sale of goods or providing service of any kind
whatsoever, and where the enterprise employs
Internal Complaints Committee
Every employer of a workplace shall, by order in writing, constitute a committee known as the Internal
Complaints Committee. ICC required if any office has => 10 employees.
Practical Tips
 As far as possible, the ICC should comprise of women members who have been trained on the POSH
Act and POSH Rules and their roles and responsibilities;
 It is preferable to have an odd number of members in order for the ICC to arrive at a decision based
on majority in case of a divided opinion.
 The ICC members should be selected based on evaluation of various factors including whether they
are accessible, approachable, committed, sensitive and understanding.
 They should be sensitive to issues pertaining to gender ‐based violence and should have good
credibility and technical competency to handle grievance procedures.
 The functioning of the ICC should be made autonomous such that there is no scope of allegations of
bias or favoritism.
 As far as possible, provide the ICC separate space for conducting their meetings and maintaining
records of cases of sexual harassment.
 Hold periodic discussions between the ICC members and conduct regular trainings.

What will the ICC do?

If an employee goes to a client’s place and experiences sexual harassment there?
If an employee goes abroad (where the laws are different) and experiences sexual harassment
there?
Powers of ICC
The POSH Act stipulates that the ICC shall, while inquiring into a complaint of workplace sexual harassment,
have the same powers as vested in a civil court under the Code of Civil Procedure, 1908 when trying a suit in
respect of:
1. Summoning and enforcing the attendance of any person and examining him on oath;
2. Requiring the discovery and production of documents; and
3. Any other matter which may be prescribed.19
Complaint
 An aggrieved woman who intends to file a complaint is required to submit six copies of the written
complaint, along with supporting documents and names and addresses of the witnesses to the ICC
 Within 3 months from the date of the incident and in case of a series of incidents, within a period of
3 months from the date of the last incident.

POSH Page 4
  In instances where sufficient cause is demonstrated by the complainant for the delay in filing the
complaint, the ICC may extend the timeline for filing the complaint, for reasons to be recorded
in‐writing.
 The law also makes provisions for friends, relatives, co‐workers, psychologist & psychiatrists, etc. to
file the complaint in situations where the aggrieved woman is unable to make the complaint on
account of physical incapacity, mental incapacity or death.
 The POSH Act and the POSH Rules do not prescribe any format in which the complaint needs
to be filed

What should the complaint include?

 The complaint should be addressed to the ICC members and not the employer/HR representative.
 The complaint should be written in simple language stating facts
 Details of exact incident, date and time, witness etc. to be included.
 Circumstances preceding and following the incident to be recorded.
 Whether the complainant asked the respondent to desist from the unwelcome act (s).
 Append as many documents as possible in whatever format i.e. relevant e ‐mails, screenshots of
SMS’s/whatsapp messages, call details, photographs, recordings etc.
 Details of the respondent including name, designation, reporting structure between complainant and
respondent if any (whether subordinate, colleague or superior).
 Do not state any fact that is false or incorrect.
 The relief that is sought from the employer.

Inquiry of Complaint: What ICC should do?

Suggestions: Questions to the Aggrieved Woman
 Where did the behavior occur?
 Who was involved?
 Were there any witnesses?
 Did you talk to anybody else about what happened?
 Has this happened before?
 How long has this been going on?
 Was the person told that the behavior was unwelcome?

Don’ts (Ideally)
 Avoid “why” questions such as, “Why didn’t you do something about this before?”
 Don’t ask leading questions such as, “Would you want to continue working here if the behavior
continues?”
POSH Page 5
  Avoid asking multiple choice questions such as, “Did he touch you on your arm, the shoulder, or the
face?” Instead ask, “Where did he touch you?”
Inquiry: Speaking to the alleged (Perpetrator)
 Ask the person to respond to each allegation separately.
 Describe the circumstances surrounding the complaint.
 Be serious and to the point.
 Be unbiased.
 Stay on the topic.
 Tell the alleged harassed that the behavior must stop.
 Document the meeting.
 Take appropriate action based on your findings.
 Follow up with the person who filed the complaint

Action to be taken
Disciplinary action including written apology, warning, reprimand, censure, withholding of promotion,
withholding of pay rise or increments, terminating the respondent from service, undergoing a counseling
session, or carrying out community service; and
Deduction of compensation payable to the aggrieved woman from the wages of the respondent

Compensation
Due to the mental trauma, pain, suffering and emotional distress caused to the aggrieved employee;
Perpetrator may bare the,
 Loss in career opportunity due to the incident of sexual harassment;
 Medical expenses incurred by the victim for physical/ psychiatric treatment;
 Such payment in lump sum or in installments.

Interim Reliefs
At the request of the complainant, the ICC may recommend to the employer to provide interim
measures such as:
 Transfer of the aggrieved woman or the respondent to any other workplace;
 Granting leave to the aggrieved woman up to a period of 3 months in addition to her regular
statutory/ contractual leave entitlement;
 Restrain the respondent from reporting on the work performance of the aggrieved woman or writing
her confidential report, which duties may be transferred to other employees.

POSH Page 6
Frivolous Complaints
As per the POSH Act, if the ICC concludes that the allegation made by the complainant is false or
malicious or the complaint has been made knowing it to be untrue or forged or misleading information has
been provided during the inquiry, disciplinary action in accordance with the service rules of the
organization can be taken against such complainant.
The statute provides that disciplinary action such as written apology, warning, reprimand, censure,
withholding of promotion, withholding of pay rise or increments, terminating the respondent from service,
undergoing a counseling session or carrying out community service.

Duties of Employers
 Provide a safe working place for women and this includes safety from the persons coming into contact
with her
 Display at any conspicuous place in the workplace, the penal consequences of sexual harassments.
Display details of ICC & contact points.
 Organize workshops and awareness programmes at regular intervals for sensitizing the employees
with the provisions of the Act. Conduct orientation programmes for ICC members.
 Provide necessary facilities to the Internal Committee or the local Committee, for dealing with
complaint and conducting as inquiry.
 Assist in securing the attendance of respondent and witnesses before the Internal Committee or the
Local Committee, as the case may be
 Make available such information to the Internal Committee or the Local Committee

Duties of Employees
 Provide assistance to the woman if she so chooses to file a complaint in relation to the offence under
the Indian Penal Code
 Cause to initiate action, under the Indian Penal Code or any other law time being in force, against the
perpetrator, or if the aggrieved woman so desires, where the perpetrator is not an employee, in the
workplace at which the incident of sexual harassment took place.
 Treat sexual harassment as misconduct under the service rules and initiate action for such misconduct
 Monitor the timely submission of reports by the Internal Committee

Difference between Rape & Sexual Harassment

Sec 375. A man is said to commit "Rape" if he:––
(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to
do so with him or any other person; or
(b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or any other person; or

POSH Page 7
(c) Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so with him or any other person; or
(d) Applies his mouth to the vagina, anus, and urethra of a woman or makes her to do so with him or any
other person, under the circumstances falling under any of the following seven descriptions:
Firstly.–– Against her will.
Secondly. –– Without her consent.
Thirdly. –– With her consent, when her consent has been obtained by putting her or any person in whom she
is interested, in fear of death or of hurt.
Fourthly. –– With her consent, when the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.–– With her consent when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly. –– With or without her consent, when she is under eighteen years of age.
Seventhly. –– When she is unable to communicate consent.

Compliance Failure: First Offence

Employer is liable if:
 An ICC has not been formulated as per the Act
 The employer fails to take action under Section 13 (Inquiry Report), Section 14 (Punishment for false
or malicious complaint) & Section 22 (No of cases under POSH to be included in the Annual Report) of
the Act Fine of Rs. 50,000/‐

Compliance Failure: Second Offence

 Cancellation, of license or withdrawal, or nonrenewal, or approval.
 Cancellation of the registration, as the case may be, by the Government or local authority required for
carrying on his business or activity.

FINALLY!
Please check how compliant you are with requirements of POSH Act immediately.
Please form the necessary ICCs and display necessary signage and notices immediately.
Non‐compliance is an offence!
Please take legal opinions when in doubt.
******

POSH Page 8