If You’re Unsure What POSH, LoSHA, ICC & Other Terms Are, This Is For You.

As more and more women have been coming forward with stories of harassment and assault, have you been feeling unsure what some of the terms frequently being mentioned, actually mean, but also felt hesitant to ask? Here’s a basic list of some of those terms you’ve been reading and what they are referring to.

What is sexual harassment?

In India, sexual harassment in the workplace includes one or more of the following:

–       physical contact and advances

–       a demand or request for sexual favours

–       making sexually coloured remarks

–       showing pornography

–       any other unwelcome physical, verbal or non-verbal conduct of a sexual nature

It can be addressed through the legal system, by approaching the police, or through non-legal methods, by lodging a complaint with the committee set up at workplaces or institutions or district administrations to deal specifically with sexual harassment.

 

What is considered a workplace?

A workplace can be a private or public institution, it can be a home, a small or big office, and it can apply to workers in the unorganised sector. It also applies to any place that an employee is required to visit in the course of their work, including transport provided by the employer.

 

What is sexual assault?

The term sexual assault usually extends to more aggressive physical contact without consent, ranging from molestation to rape. While a committee set up to deal with sexual harassment can be approached with such an allegation, the police can be approached too – charges can be brought against the perpetrator under the Indian Penal Code (IPC) which carry a heavier punishment than charges of sexual assault.  

What is #MeToo?

The “Me Too” movement was started over a decade ago by American activist Tarana Burke, to support young women of colour who were survivors of sexual violence. In 2017, when several allegations of sexual assault were made against the influential American film producer Harvey Weinstein, women began using the phrase in a hashtag that went viral on social media. Perhaps it grew popular because it offered solidarity, showing victims that they weren’t alone, while also encouraging women to come forward to seek justice or even simply to have their stories heard. Many say that the serious investigations and responses to sexual harassment that followed these accusations helped women feel their stories would be taken seriously now, in a way they usually never are.

#MeToo has grown to be an important movement, not just in Hollywood but  across the world – exposing how powerful men use their position to exploit  women, and on just how large a scale sexual harassment and assault exists in our society. #MeToo has given rise to several necessary conversations on subjects ranging from good workplace conduct to what a “bad date” is.

 

What is LoSHA?

Close on the heels of #MeToo in the US came the Indian ‘List of Sexual Harassers in Academia’, or simply, The List. It was created by lawyer Raya Sarkar in 2017. Women could add information about their harassers to this list, thereby informally warning other women to be careful around these men.

Some people opposed having such a list, complaining that it violated “due process” (more on that below) – they were uncomfortable that accusations could be made anonymously by women without requiring proof. Others were glad such a list existed, giving women the opportunity to speak up about their harassers while shielding themselves from direct backlash. Although The List became controversial, it sparked conversations about how we currently respond to allegations of harassment or assault in India, and how we should be responding to them.

What are the Vishakha guidelines?

These were a set of procedural guidelines laid out in 1997 to deal with sexual harassment, and have now been superseded by a new Act.

The Vishakha guidelines came about after case involving a government worker and in Rajasthan named Bhanwari Devi. Members of a dominant caste in her village raped her in retaliation for her work trying to prevent child marriage in the area. She was treated poorly by doctors, police, and the judicial system, and the Rajasthan High Court allowed her rapists to go free. Women’s groups then collaborated to file a petition in court based on the fact that she was assaulted in the course of her work. Bhanwari Devi’s struggles resulted in the drafting of the Vishakha guidelines, which aimed to create a safer work environment for women.

 

What is POSH?

The Prevention of Sexual Harassment Act, or more accurately, the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act came into force in 2013 and replaced the earlier Vishakha guidelines on sexual harassment.

Building on the Vishakha guidelines, they expand the definition of a workplace (covering the unorganised sector as well), who an employee is (part-time workers, interns, domestic workers are now all covered), and what a company’s responsibilities are to its employees. POSH also lays down the rules for setting up an internal mechanism to inquire into allegations of assault, with concrete deadlines and courses of action to deal with these cases swiftly and sensitively…at least in theory.  

Should a woman choose to file a complaint under the IPC or any other law, the employer is expected to provide assistance. Every offence under POSH is non-cognisable, which means that a police officer cannot make an arrest without a warrant, and an investigation cannot be conducted without a court order.

 

What is ICC?

Under POSH, if a woman is harassed, she may choose to make her complaint to a company’s (or institution’s) Internal Complaints Committee – the ICC – which must inquire into the case.

The ICC has to be headed by a Presiding Officer, who has to be a woman employed at a senior level in the company. If the company or institution doesn’t have a senior woman in any of its branches who can be brought in to head the committee, it has to appoint a woman from outside the organisation to this post. The committee has to have at least two members who are committed to women’s causes, have experience in social work, or have legal knowledge, and one member who is from an NGO that works on women’s causes or is familiar with issues relating to sexual harassment.

At least half of all the ICC’s members should be women.

 

Does every workplace need to have an ICC?

By law, any company with over 10 workers has to have an ICC.

Failure to comply with POSH invites a fine of Rs 50,000 the first time. Repeated failure has more serious consequences, including a higher fine and even cancellation of the company’s license.  

 

What happens after a complaint is made to the ICC?

A complaint has to be made within 3 months of the offence (if the ICC sees fit, it can extend this by another 3 months) and an inquiry has to be conducted. If the complainant requests it, a settlement can be made with the respondent – this cannot involve money. For instance, the complainant can ask for an apology and admission of wrongdoing. Once a settlement is made, there will be no inquiry unless the respondent fails to fulfil the terms of a settlement.

In the event of an inquiry, both sides will be heard and recorded, and the complainant and respondent will receive a copy of the ICC’s findings and the chance to respond to them. The ICC has the power to summon and enforce the attendance of any person and examine them under oath, ask for documents to be produced. An inquiry has to be completed within 90 days, and the ICC’s report communicated to both sides as well as the employer within 10 days. If the respondent is found guilty, the ICC can recommend disciplinary action and/or a fine.

 

What if the place you work for has no ICC?

If your organisation doesn’t have an ICC, you can ask them to set one up and by law, they have to if they want to avoid being fined.   

But if the organisation has less than 10 workers, you will need to approach your Local Complaints Committee (LCC), which is meant to exist in every district. The district administration should be able to direct you to it – the District Officer is in charge of appointing this committee.

 

What if your company has an ICC, but your complaint is against the employer?

In that case, you are within your rights to approach the Local Complaints Committee.

 

What if the incident you want to report happened more than three months ago?

If the incident you want to report happened before the period that the LCC is allowed to investigate, you can still let your employer know – it is their duty under Section 19 of PoSH to provide a safe work environment.

 

What do people mean when they say ‘due process’?

‘Due process’ refers to some sort of official procedure – whether through the police and legal system or through a formal complaint to an institution’s management or the district administration. It gives the victim the opportunity to raise a complaint, and also gives the accused the opportunity to respond. In a legal case, it allows the accused to respond to the allegations, to lead evidence and to seek adequate legal representation. These are principles of natural justice and are protected under Article 14 and 21 of the Constitution of India. The violation of these rules may result in the entire trial being held bad in law.

For many, because of prevailing attitudes in society that cause people to react to women’s allegations of harassment or assault with skepticism, the problem with submitting to the workings of “due process” is that women may face even more trauma dealing with backlash from the public, insensitive or hostile officials, and being dragged through a slow and at times ineffective justice system in which justice for the victim is never guaranteed.

 

What if someone at your workplace asked you out?

There isn’t a black-and-white answer to this, but it helps to think about some more questions. Is the person who asked you out a colleague on the same level or higher? And if you weren’t interested in them, would expressing this have repercussions for your career? Or if you’ve already made it clear that you aren’t interested, did that person back off?

If a colleague asks you out and you’re interested in them too, maybe it’s a recipe for office romance. If you aren’t interested and they back off, then it might possible to re-set the clock and continue as colleagues who respect each other. More about this here.

But if they won’t take no for an answer, become aggressive, or ask you out when they hold power over you and turning them down might (directly and indirectly) affect how they treat you in the workplace, then it’s not a case of office romance at all but sexual harassment and professional misconduct.

 

What if you went on a date with someone who isn’t a colleague, but works in your industry, and that date became uncomfortable, or offensive, or they ignored consent?

You could consider complaining to their employers, who might refer the complaint to the ICC. Complaints made to the National Commission for Women or State Commission for Women may also result in some form of redress. Legal redressal can be sought under the IPC for molestation, stalking (including cyber-stalking), harassment and assault, depending on the scenario.

 

What if your long-term relationship is abusive, but you are not married?

If you are in a live-in relationship, you are protected under the Domestic Violence Act. If not, the sections of the IPC that pertain to molestation, stalking, harassment and assault still apply. The National Commission for Women or State Commission for Women may also be able to help.

 

What action can I take if I have faced sexual harassment?

If you’d like to approach your company’s ICC, here is some more information on workplace harassment and how to fight it: https://www.newslaundry.com/2018/10/12/faq-sexual-harassment-workplace

The government has its own web portal on which complaints of workplace sexual harassment can be submitted: http://www.shebox.nic.in/. Complaints submitted here will be sent to the ICC of the complainant’s company.

If you’re looking to take the legal route, some scenarios are explained here:

https://indianexpress.com/article/explained/sexual-harassment-law-when-where-it-holds-against-whom-5398193/

The National Commission for Women has a portal on which complaints of stalking can be made:

http://ncw.nic.in/onlinecomplaintsv2/frmPubRegistration.aspx

For more information on cyber stalking and online harassment, and whom to complain to, head here: https://blog.ipleaders.in/cyber-stalking/

I Will Go Out has crowdsourced a list of professionals who can provide help for free, whether it’s legal services, healthcare or mental health counselling: https://docs.google.com/spreadsheets/d/1OJcqLT7k9eIGi3oTy9ZAJYr6uTUXPfUeElzVumGUyL0/edit#gid=1192261522. (If you’d like to offer your services as well, you can sign up here.)

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