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POSH Act: Understanding Role of Workplace Bullying and Back Bitching in Sexual Harassment Cases

A common misunderstanding among people unaware of the various forms of sexual harassment of women at workplace is not considering some acts of workplace bullying as sexually malignant. There are forms of workplace bullying which are intended to malign the character of a woman and thus comes under the consideration of the PoSH Act (Prevention of sexual harassment Act).

Workplace bullying has unfortunately become a common phenomenon among many corporates across the world. Humans tend to attach too many emotions to their career and thus everything happening in their corporates lives affect their behaviours. This could drive feelings of jealousy towards a relatively successful colleague or feelings of superiority or inferiority complex among employees depending upon the success in their career. All these complex emotions lead to employees competing with each other and lead to workplace politics with discrimination/bullying. This includes mocking, intimidating, or spreading malicious rumour against a fellow employee for character assassination.

In many cases, this happens to women in the workplace in form of shrewd remarks made by their colleagues or fake rumours about her having a relationship with her superior to gain momentum in her career. All these things tend to give women unnecessary stress and judgement despite them working hard to achieve success. Let’s understand this with a fictional scenario based in a corporate.

Suppose there is a group of men and women working in the software development team of some organisation ABC. The team has a male manager who handles and allocate daily tasks for the team and keeps a record of the performance of every employee for annual appraisal. After a year, the manager promotes a female colleague due to her exceptional performance throughout the year. Now, if any other female/male colleague out of respite or jealousy starts spreading a rumour about the promoted woman having an affair with the male manager for the sake of promotion, then it will not only disparage the promoted woman’s hard work and reputation but also demeans the company’s management. This scenario will, of course, make the working environment hostile for the woman due to the rumour mongering. This rumour mongering may also lead to mocking behaviours towards that woman which could lead to stress and humiliation for her. 

The above example shows that there is a thin line between common back bitching/rumour mongering and sexual harassment. Understanding the difference between the two is necessary to ensure that workplace bullying leading to sexual harassment of a victim is not tolerated in the workplace. To understand this an employee must be aware of the differences between mocking or intimidating behaviour at the workplace and sexual harassment. The employees must also be aware of what constitutes workplace bullying and are there any options available to them for tackling workplace bullying legally. Let’s try to understand workplace bullying and sexual harassment separately and then understand how they could be related sometimes. This will help employees understand the type of actions they can take to ensure a stress-free working environment for them in the company.

Sexual Harassment of Women At Workplace

Sexual harassment of women at workplace is a pan India problem. It is present in almost every workplace in some form or another. Not only in India, but the cases of sexual harassment of women are also a major issue in developing countries. This is mainly because women are mostly considered the most vulnerable section of humanity. To change this mindset of discrimination against women and prevent sexual harassment, the Indian government bought PoSH Act 2013. It consisted of strict norms to tackle the issue of workplace sexual harassment and ensure the safety of women at workplace. It defined what kind of behaviours comes under the scanner of sexual harassment to make both the victims and legal entities aware of what is sexual harassment and  the necessary measures to deal with it.

Sexual harassment at the workplace includes unwelcome sexual advances, unwanted behaviour, verbal or physical misconduct consisting of sexual behaviour or remarks. Under section 2(n) of the PoSH Act,

“Sexual harassment includes unwanted sexually charged behaviour like:

1.      A demand or request for sexual favours;

2.      Physical contact and advances;

3.      Showing pornography;

4.      Sexually coloured remarks;

5.    Any other physical, verbal or non-verbal conduct that is sexually coloured and unwelcomed by the victim.“

Sexual harassment of women at the workplace can be easily summed up as gender-based discrimination in the working environment that violates the basic fundamental rights of women conferred by the constitution of India under Article 14, 15, and 21. Of course, this leads to growth impediment and stressful environment for women in an increasingly competitive scenario where they constantly need to prove their worth compared to men. Health and safety issue or reasonable apprehension humiliation at the working environment is also understood as sexual harassment.  For example, if any gesture of a co-worker created and venomous sexual environment for a female companion then it will be categorised in the workplace sexual harassment.

Scenario of Sexual harassment and PoSH act in India

Bullying is an unwanted, unreasonable and repeated aggressive behaviour against any individual due to respite or jealousy. This includes the use of mockery, physical or verbal threat or a dominating behaviour to display power over others. The harm of bullying is considered more psychological than physical and has a long term impact on the mental health of an individual. Now, this coincides with the acts of workplaces sexual harassment when the remarks intended for mockery are sexual then it can be punished under the PoSH act. However, not all the acts of workplace bullying are covered under this Act and thus, victims have to understand other legal methods to tackle it.

In our country, where there have been apprehensions among families about their women working outside, most of the cases of sexual misconduct go unreported as women feel that if they report such cases their families won’t allow them to work due to safety concerns. Also, the social stigma and victim-blaming that is prevalent in India lead to women keeping quiet on such cases to avoid facing social humiliation. The landmark case of Vishakah vs the state of Rajasthan changed the situation in India as it was the court’s judgement, in this case, served as the benchmark to define workplace sexual harassment till the PoSH Act was enacted. The Vishakha Guidelines to deal with sexual harassment cases was used extensively by Indian employers till the time the PoSH act came into being.

Understanding Workplace bullying and its Situation in India

Bullying is mostly observed in colleges and schools. In the workplace, the form of bullying is more subtle and involves psychological intimidation through position in the corporate ladder or prowess at the work. Unwanted criticism, misuse of authority, unnecessary exclusion of an individual, insulting or using foul remarks/ rumours to malign someone’s character on their back are the different ways a person can be bullied in the workplace. Here, the bully generally doesn’t realise that they are bullying someone or what effect their behaviour is putting on someone’s psychology. And this is why giving proper behavioural training to employees and making them aware of the consequences of workplace bullying could tend to this problem effectively.

Situation in India to tackle Workplace Bullying

In our country, there are no specific laws to punish individual committing workplace bullying. It is seen as more of a social stigma rather than a criminal offence. However, various issues that come under bullying can be tackled by different sections of the IPC (Indian Penal Code). Like Section 323 – voluntarily causing hurt, Section 340- Wrongful confinement, Section 339 – Wrongful restraint, and section 506- criminal intimidation punishment, can be used to tackle workplace bullying. Because bullying is generally non-sexual and the harassment is more based on religion, age, power dynamics, or jealousy, it can’t be punished under the PoSH act. Although spreading rumours about someone having a sexual affair or disparaging someone character based on sexual nature comes directly under the PoSH act and can be punished under it.

What Deterrents Corporate Organisations Need to Apply

1.  Spread Awareness about forms of Workplace Bullying: Most of the time the complainants are not aware of the PoSH laws and the implications of any unwanted behaviour that could lead to PoSH complaints. This is where the tool of awareness can come handy. The employers must create awareness amongst its employees regarding internal complaints committee guidelines, the consequences of bullying an employee through sexually coloured remarks, rumours or mockery.  Employees should be properly trained regarding the difference between bullying and acts that fall under the framework of the PoSH act. 

2. PoSH Training Sessions for ICC Members: The POSH Act read with applicable rules clearly specify that the employer must ensure and make provisions for conducting orientation programs and seminars for the members of the ICC. Organising capacity building and skill-building programs for the members of the ICC will ensure that there is a well-trained and skilled committee of members in place who are well informed about the subject matter. A well-trained and skilled internal complaints committee shall be able to adjudicate the complaints more efficiently and shall be able to decide on the complaints effectively after considering and analysing the situation and the facts along with pieces of evidence placed before them. There is no doubt that dealing with workplace sexual harassment complaints is often complex, that is the reason, the POSH Act, itself acknowledges the importance of having a committee in place which possesses critical skills/capacity to effectively carry out their roles.

3.  Use Informal Communication Methods to Resolve Conflicts: Many a time there is a misunderstanding between the parties, and intent of the accused gets misconstrued differently to the complainant. To prevent such situations, the POSH Act mandatorily requires the ICC to explore the possibility of conciliation between the parties before initiating an inquiry and at the request of the aggrieved woman take steps to settle the matter between her and the respondent through conciliation, provided the basis for such proceedings are not a monetary settlement.

4. Ensure That the Deterrents Send the Right Massage: Setting a deterrent for false complaints does not imply that the organisation is unwilling to take any issue of sexual harassment. Any employee facing sexual harassment should not feel apprehensive of filing complaints because of the deterrent as it will nullify the basic essence of the PoSH Act.

Employees must be encouraged to bring into notice anything undesirable or uncomfortable for them. Employers should have access to all the effective measures that can be taken against sexual harassment and workplace bullying.

Workplace bullying does violate the right of an employee to work with dignity that has been given by Article 21 of the constitution of India. Furthermore, article 42 and 43 direct the states to provide healthy and humane working conditions for an employee to work in. This is also part of the PosH Act that seeks to ensure a safe working environment for women in India. Any employee must understand that in our country workplace sexual harassment is a legal offence but there are no such laws yet for workplace bullying. Thus, an individual must understand sexual harassment laws to understand what kind of bullying acts comes under the framework of the PoSH act.  This is where taking legal help becomes necessary and PoSH training plays a big role in it. Taking help of a legal firm, in these cases, would be the ideal way as they understand the various norms of the acts. The professional could make all employees aware of the differences between bullying and sexual harassment. This will help in reducing cases of workplace bullying and sexual harassment and ensure a safe and happy working environment for the employees

By | 2020-10-27T13:29:49+05:30 October 27th, 2020|Uncategorized|0 Comments

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