There have been calls to overhaul the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, known as the PoSH Act, in the wake of protests by India’s wrestlers as well as students of Kalakshetra. The alleged sexual harassment of women wrestlers and the students certainly compel us to look at the issue carefully, but arguing for the need of a legal overhaul may be premature. It is not that the legislation is falling short in keeping harassment at the workplace in check, but India as a society is failing to implement these hard-won protections of the law.
In November 2022, a survey involving 400 respondents conducted by Stratefix Consulting in collaboration with the National Human Resource Development (NHRD) found that 37 per cent of staff, almost entirely women, reported being harassed at work. This would suggest that one in every three women in any office had been harassed while observers and seniors turned a blind eye. Of those surveyed, 8 per cent were not completely aware of the provisions of the PoSH Act. These were educated women who worked in corporate organisations and could have easily been empowered with this knowledge had the corporate organisations done what they were mandated to, namely providing them with awareness training. Moreover, 11 per cent of the respondents claimed that they would rather leave the organisation than make a complaint under the PoSH Act, fearing social and economic repercussions. This proves that the matter has deeper and more complex roots than legal illiteracy.
The question to be asked is whether the PoSH Act needs an overhaul or is it our mindset/patriarchal thinking/social edifice that needs an overhaul? In any case, we would never know if we need to overhaul a law unless we implement it? Has India sincerely tried to implement this law in letter and spirit and come to the conclusion that it is not meeting its objectives? No, because as a society, we’ve never been sincere about gender justice and equity, and consequently have not bothered to comply with the Act. Where there has been “compliance”, it is mostly cosmetic, in the form of lip service. So, we ourselves have failed the law, and not the other way around.
Also read: It’s high time to overhaul the POSH Act. Even judges are complaining
Who is accountable?
The PoSH Act directly places the accountability of eradication of workplace-related sexual harassment on the shoulders of the employer and its management. It is entirely the management’s responsibility to constitute a fully functional and capable internal complaints committee to prevent and redress sexual harassment. Some organisations consider this responsibility as a pesky chore, an unnecessary mandate. In some cases, citing confusion on what constitutes a workplace, several organisations escape this responsibility. Prominent among them are educational institutions, film production houses, and arts organisations, which initially did not see themselves as an ‘organisation’ to which the PoSH Act applies. Only in the past few years have they been forced to accept that they too fall under the purview of the Act.
Then there are organisations that do not think about conflict of interest when making appointments. In a recent case involving a well-known dance school, the director herself was the chairperson of the internal complaints committee. So, when a problem arose, she was busy pushing the problem under the carpet to protect the image of the institution against those who were sullying it. A complaint is seen as a threat to the reputation of an organisation whereas the real threat is entitled behaviour and power structures. We must admit, though, that all directors may not have behaved this way. Some would be ethical enough to balance their role as the committee chairperson and director, and utilise each role to enhance the other. But this particular director chose not to do that. So, again, it’s not the law at fault, but the kind of person in charge of implementing it.
Many organisations hesitate to delegate chairmanship of the internal complaints committee to strong, knowledgeable and articulate women, committed to gender justice, seeing in them trouble-making possibilities. Others fall into the trap of ignorant, regressive and compliant external members, with not enough on-ground experience. An institute, which had already experienced a case, appointed a person close to her retirement age as the chairperson, arguing that “she will have the time, and it will keep her occupied”. What would the quality of the investigation be under the guidance of such a chairperson? Should we not be doubting and questioning those who appoint such chairpersons and committee members?
As per the Act, an internal complaints committee is envisioned as a quasi-judicial body to effectively and quickly resolve any grievance and ensure an environment of well-being and safety of all. With their less formidable processes, the PoSH committees are more likely to arrive at a resolution than court or criminal justice procedures. Moreover, since all except one committee member are part of the organisation, they can oversee implementation of any recommendations that were made as part of their final conclusion of a particular investigation. This can only be achieved if organisations provide resources, capacity-building training and independence to the committee.
Also read: Kalakshetra Chennai has a PoSH problem. Students fume, gag order imposed, art world shaken
Are companies doing the necessary?
The internal complaints committee is, in fact, a powerful innovation, an alternative mechanism of justice. It is meant to be a safe confidential space where complainants can speak without fear of judgement or retaliation. The committee members are empowered to investigate a matter, conduct a conciliation if requested and arrive at solutions to resolve not only the matter at hand, but also implement steps to ensure dignity of women in the organisation going forward.
Learning interventions, if and when conducted, tend to follow a simplistic “forbidden behaviours” approach. Such training can be counterproductive as men feel they are being attacked, and being singled out as “the ones who need fixing”, which often makes them defensive. A 2018 study carried out by the Pew Research Center revealed that more than 30 per cent of men said that false claims of sexual harassment are “a major problem.” No surprise that 58 per cent of women who had been harassed said that not being believed is a major problem. Effective training workshops must be interactive, facilitated by experts in gender sensitisation, and they should be conducted regularly. Participants should be able to clarify their concerns and doubts. An adept facilitator will be able to steer conversations in a meaningful and progressive direction. If we choose to select mediocre facilitators or use a nonsensical e-learning material instead of a live interactive workshop, then, once again, the fault lies with the employer, not the law.
An internal complaints committee has to be able to detect invisibilised abuse. Do they have the capacity to? Is the management of the organisation willing to pay heed to the committee when it flags micro-aggressions, normalised discrimination? It might if it itself were aware. That is why training just the committee is not enough. The entire staff needs awareness training, as does the management. In an educational institute, the entire student population needs to undergo thorough training. A Harvard Business Review study recommended additional training programmes like bystander intervention training and management training, which make everybody a stakeholder in the persistence of abuse, and may have a greater impact when imbricated with regular gender and PoSH workshops. Some of the better organisations conduct additional training for first-time managers and supervisors. In our experience, organising training on social skills like assertiveness and creating boundaries are absolutely essential for students, interns and young adults with 0-10 years of professional experience. Those who are truly committed to eliminating sexual harassment would take these additional steps.
Apart from fear of social stigma, one of the reasons there is hesitance to report harassment is the lack of awareness of the redressal process, lack of vocabulary to describe the problem, and a fear to put things in writing. It is the responsibility of the manager to eliminate these challenges and fears. All these roadblocks are surmountable if there is a will. As practitioners in the field, we cannot reiterate enough the importance of taking preventative measures in addressing the curse of sexual harassment in organisational, educational, and artistic spheres.
All this and much more needs to be done first, before we find faults with the PoSH Act. On the decade anniversary of the Act, we have to look within. If we don’t do that, then no law, no Act will solve the problem. The problem here is not the law, but the intent of those organisations and their leaders who wish to maintain the status quo with regard to the harassment and abuse of women in the workforce. If we were serious about changing the status quo, it would have been achieved a long time ago. It would serve us well to not overhaul or incapacitate mechanisms that can bring about transformation, but to strengthen, nourish and empower them.
Asiya Shervani is a change management and organizational effectiveness advisor supporting a wide range of organisations in the prevention and redressal of sexual harassment, everyday sexism, incivilities and inappropriate conduct. She tweets @AShervani.
Dr Arshiya Sethi is a two-time Fulbright Fellow, dance scholar, researcher and ‘artivist’, supporting management of arts institutions in creating inclusive and safe practices.
Views are personal.
(Edited by Prashant)