PoSH Act Misconceptions That Could Put Your Business at Risk

The Prevention of Sexual Harassment (PoSH) Act is a crucial piece of legislation that aims to establish safe and inclusive work environments for women. Despite its importance, many organisations fall prey to PoSH Act myths, leaving themselves open to legal risks and reputational damages. Misunderstanding the scope and requirements of the law can lead to non-compliance, hefty fines, and operational disruptions. In this blog, we will discuss the common misconceptions surrounding the PoSH Act and why every organisation, big or small, must prioritise compliance with the PoSH Act.

1. PoSH Compliance Is Not Required If We Don’t Have Women Employees

A common PoSH Act myth is that it only applies to organisations with female employees. In reality, the law extends its protection beyond employees and includes vendors, clients, visitors, and interns. Any woman who interacts with an organisation in a work-related capacity is covered in this law. Ignoring this can expose businesses to unexpected legal risks. For example, if a female vendor is harassed on your premises, she can file a complaint under the PoSH Act.

2. Only Female ‘Employees’ Can File Complaints

Many believe only female ‘employees’ can register complaints under the PoSH Act. However, the law permits any woman associated with the organisation, including clients, vendors and job applicants, to file a complaint if she experiences sexual harassment.

3. Small Companies Don’t Need to Comply

The PoSH Act applies to all companies, regardless of size. While it’s a common misconception that small businesses are exempt, the law mandates compliance from every organisation. Companies with less than 10 employees must refer cases to the Local Complaints Committee (LCC) if they arise, so even small businesses must adhere to the regulations.

4. PoSH Law Is Optional

Another dangerous PoSH Act myth is that following it is optional. However, compliance is mandatory for all types of entities, including private companies, NGOs, government offices and sole proprietorships. Ignoring the law can result in repercussions such as hefty fines, reputational damage and even business license revocation. Organisations must ensure they meet all compliance requirements to avoid these risks.

5. Sexual Harassment Outside the Workplace Isn’t Covered

Many organisations think the PoSH Act only covers incidents within office premises. However, the Section 2(o) of PoSH law broadly defines the workplace, including business trips, offsite meetings, employer-arranged transportation, etc. Incidents of sexual harassment that occur in any location defined as a “workplace” by the PoSH Act are covered under the Act.

6. Contract Employees Aren’t Covered

It’s a common PoSH Act misconception that the law only protects permanent employees. However, the law extends to contract workers, interns, volunteers, and consultants. All organisations must ensure that every individual working with them, regardless of their employment type and status, is protected by the PoSH framework.

7. Sexual Harassment Doesn’t Happen Here

Some companies believe sexual harassment doesn’t happen in their organisation. This is not only naive but dangerous. Proactive measures like PoSH awareness programs and training help prevent issues from arising, making the workplace safe for everyone.

8. Having an Anti-Sexual Harassment Policy Is Enough

Implementing a policy is only the first step; it is not enough on its own to prevent sexual harassment. The Prevention of Sexual Harassment (PoSH) Act mandates that companies conduct regular PoSH training for employees, establish an Internal Complaints Committee (ICC), maintain proper documentation, and adhere to the PoSH compliance checklist. Failure to implement these procedures, even with a policy in place, can result in severe penalties.

9. Only NGO Members Can Be External ICC Members

While it’s commonly believed that only NGO representatives can be external members of the Internal Complaints Committee (ICC), the law actually permits professionals from associations dedicated to women’s rights or those with expertise in sexual harassment cases to hold these positions. This allows companies to select external members who meet their specific requirements while remaining compliant with the law.

10. The HR Head Must Lead the ICC

The Presiding Officer of the Internal Complaints Committee (ICC), as mandated by Section 4 (2) (a), must be a woman holding a senior position within the organisation. A male employee, even if he is the HR Head, cannot preside over the ICC. However, a female HR Head can assume the role of Presiding Officer, as she is an employee and not an employer. The ICC should also comprise a minimum of two internal members and one external expert specialising in workplace sexual harassment cases to maintain impartiality and uphold the integrity of the complaint handling process.

11. All ICC Members Should Be Women

The law mandates that at least half of the Internal Complaints Committee (ICC) members must be women, including the Presiding Officer. However, it’s permissible to have male members on the committee as well. While an all-women ICC is legally allowed, having at least one male member can enhance comfort and trust among stakeholders, and promote balanced and diverse perspectives in the decision-making process.

12. Even Oral Complaints Must Be Inquired into

The PoSH Act only mandates an inquiry by the ICC upon receiving a written complaint.  If a written complaint cannot be submitted by the aggrieved woman, the ICC members are obliged to assist her in doing so.

13. Women Will Misuse PoSH to Get Promotions

Some people believe that women will take advantage of the PoSH Act for personal gain. However, the law has built-in safeguards to prevent this. The requirement that the ICC follow the principles of natural justice to arrive at a collective reasoned decision and the possibility of punishment for false and malicious complaints amongst others

14. PoSH Training Increases Complaints

PoSH training for employees fosters a positive attitude towards reporting sexual harassment and equips them to identify such situations. Contrary to the belief that it will lead to more complaints, it actually educates employees about expected behavior, thereby reducing the likelihood of instances of sexual harassment. Ultimately, these trainings create a safer and more respectful workplace for all.

15. Every Complaint Means the Accused Is Guilty

A common misconception surrounding sexual harassment law in India is that every complaint automatically implies guilt of the accused. This is not the case. The PoSH Act operates on the principle of preponderance of probability, as opposed to the criminal law standard of beyond a reasonable doubt. This means that the PoSH Act uses a balanced approach where evidence is carefully considered and evaluated before any conclusions are reached.

16. Non-Compliance Has No Major Consequences

The repercussions for non-compliance with the PoSH Act are often underestimated.  Social media backlash can severely damage a company’s reputation in today’s digital landscape, compounding the penalties for non-compliance, which includes fines up to ₹50,000, double for repeat offenses, and even cancellation of business licenses.

17. Only the Aggrieved Woman Can File a Complaint

It’s believed that only the woman who faced sexual harassment can file a complaint. According to the Section 9 (2), when the aggrieved woman is unable to make the complaint due to her physical or mental incapacity, death or any other reason, her relative or friend, co-worker, or any person who has knowledge of the incident and has a written consent of the aggrieved woman can file the complaint. This provision ensures that cases of harassment are heard and addressed even if the complainant is not able to file directly.

18. Companies With Less Than 10 Employees Have No Redressal Mechanism

While small businesses with few employees may believe they are exempt from having a formal redressal system, they are still responsible for addressing workplace sexual harassment complaints. Although they are not required to establish an Internal Complaints Committee (ICC), they must refer any complaints to the Local Complaints Committee (LCC) as needed. This ensures that all workplaces, regardless of size, have a formal mechanism for handling such complaints.

Conclusion

Misconceptions about the sexual harassment law in India can put businesses in legal trouble, financial penalties and reputational damage. By debunking these myths and ensuring PoSH Act compliance, organisations can create a workplace where all employees feel safe and respected. Don’t let common myths put your business at risk.

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