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PoSH Laws in Different Jurisdictions

Awareness

  Apr 2 2024 | admin

A specific law to prevent sexual harassment (“PoSH”) ensures greater safety in the workplace and enables grievances to be addressed more quickly. With the advent of more mechanisms to protect women from sexual harassment, countries have developed various laws to tackle sexual harassment in the workplace.

This article examines the PoSH laws in the following countries – India, the United States of America, the United Arab Emirates, South Africa, Pakistan, Bangladesh, Sri Lanka, Indonesia, Nepal, Thailand and Malaysia. By providing a comparative critique of their laws, this article aims to critically analyse their developments and shortcomings.

India

  • In India, the PoSH Act provides a comprehensive and robust mechanism on handling sexual harassment cases at the workplace.
  • Its salient features include an extensive coverage of the Act (the definitions of ‘aggrieved woman’ and ‘workplace’ have a very wide ambit, covering non-traditional roles such as interns and applicants; and places such as parties, work-related travel, among others).
  • It also imposes obligations on the employer, such as constituting an internal committee i.e. “IC”, conducting regular training sessions, mandatorily submitting annual reports, and demands very strict compliance for the same.
  • Lastly, it also contains certain mechanisms such as confidentiality, investigations by the internal committee and handling fake cases.
  • However, the law is not equally strong on issues such as retaliation by the respondent or employer. For instance, if the respondent makes the complainant’s work environment hostile, this can be dealt with only under the workplace’s code of conduct, and not the PoSH Act, since there are no specific clauses on it.
  • If the Act can address discrepancies such as the above-mentioned as well as other measures such as expanding the reporting period, setting up research and data analysis bodies and stricter compliance mechanisms, it would make the law more airtight and fairer.

United States of America

  • American law views workplace sexual harassment as a form of sex discrimination, and is dealt as a civil matter. In this regard, Title VII of the Civil Rights Act (1964) imposes an obligation on employers to not allow sexual harassment at the workplace, regardless of personal characteristics such as sexuality, gender or sex.
  • It makes employers accountable, however, does not impose any obligation on an employee to not commit sexual harassment. Hence, the only legal remedy available for a complainant is to sue their employee, and not the alleged harasser/ respondent.
  • Some States, such as Illinois, New York and California impose mandatory training as well. Since it is a decentralized system with laws unique to the State, there is a need for a stricter dedicated law.

United Arab Emirates

  • Recently, the Federal Decree Law No. 33 (2021) and Cabinet Resolution No. 1 (2022) imposes an obligation on employers in the UAE to provide a safe environment for working which is free from sexual harassment.
  • Non-compliance with the same is met with imprisonment and fines. The definition of sexual harassment is considerably exhaustive and makes it compulsory to open investigations.
  • However, the law is slightly one-sided; for instance, under Article 44(7) of the Employment Law, a guilty person can be terminated without notice. This is in contrast to jurisdictions like India, where punishment is relative to the degree of sexual harassment.
  • Nonetheless, it also provides a mechanism for the aggrieved to take action against the employer if their intervention is not enough to stop the issue.

South Africa

  • In May 2023, South Africa introduced an amended Employment Equity Law which further regulated diversity and safety at the workplace. This included a revamped PoSH law, which characterized sexual harassment as a form of discrimination.
  • The definition of sexual harassment now extended to unwelcome and persistent flirting, threats if sexual favours are not given and covers non-traditional mediums such as notes, e-mails and phone calls.
  • The law also allows for grievance redressal by the employer, and if that fails, the opportunity to approach a centralized body – the Commission for Conciliation, Mediation and Arbitration or the Labour Court.
  • Hence, PoSH laws in South Africa allow for many areas of redressal for the aggrieved, allowing either a claim for compensation/ damage or corporal punishments such as imprisonment.

Pakistan

  • Pakistan enacted its PoSH law in 2010 and has a comprehensive definition of ‘harassment’. It imposes obligations on the employer to constitute an internal committee and make workplaces policies aware to employees.
  • It also distinguishes between major and minor penalties to be imposed on the guilty, thus appreciating the different degrees of sexual harassment at the workplace.
  • Furthermore, it calls for the involvement of the Ombudsman, who acts alongside the inquiry committee. This may reduce the importance of the internal committee and compromise on its sovereign functioning.
  • However, as one of the first few countries to have developed a comprehensive PoSH law, it is very inclusive and adapting to new trends. For instance, in 2022, an Amendment to the Act increased the scope of the workplace and ambit of harassment. It was viewed as a step ahead in the direction of respecting constitutional principles such as dignity, equality, liberty and social justice.

Bangladesh

  • While Bangladesh does not have a specific legislation about PoSH, Section 332 of the Labour Act mentions that no one can be indecent or be repugnant to the modesty of a female worker.
  • This is complemented by Rule 361 KA of Bangladesh Labour Rules, which provides a comprehensive definition of sexual harassment by covering acts such as making a ‘love proposal’ and threatening if the ‘proposal is not complied with’ and sexually-coloured insults.
  • Furthermore, it also sets out a mechanism by which every workplace must constitute a Complaints Committee, including a physical complaint box (Rule 361 KA (3)). Hence, the law also imposes obligations on a workplace.
  • However, the biggest setback spans from the discriminatory nature of the law which excludes men and non-binary persons. By making the law gender-neutral, the law will protect more complainants and will set a precedent to end gender-based violence in the workplace.

Sri Lanka

  • Sri Lanka does not have a codified PoSH law. Instead, (a) Section 345 of the Penal Code which gives a gender-neutral definition of sexual harassment and corporal punishment for the same; (b) the Bribery Act of 1956 mentions that a public servant can be held under the offence of bribery if they solicit or accept sexual gratification and (c) Section 2(2) of the Prohibition of Ragging and Other Forms of Violence in Educational Institutions Act, 1998 categorises sexual harassment as a form of ragging.
  • While one may point out the lack of a specific law for PoSH, there is another discrepancy – all of the above-mentioned laws impose criminal punishments on the guilty. In contrast, having some civil remedies may be beneficial.
  • Nonetheless, there is a need to bring in a centralised law which imposes obligations on the employer as well.

Indonesia

  • Very recently (2023), the Indonesian Ministry of Manpower issued guidelines on managing complaints of sexual harassment in the workplace. Now, companies are mandated to establish a sexual harassment prevention task force, have a provision for compensating victims of sexual harassment and draft an inclusive policy to tackle digital sexual harassment.
  • Furthermore, although termed as ‘guidelines’, they are binding in nature, in contrast to the pre-existing 2011 guidelines which were widely regarded as insignificant. Also, the 2023 guidelines differentiate between sexual harassment and sexual violence and have a sliding scale of punishments for the ‘perpetrators’.
  • This legislative step was welcomed in many institutions as a way forward for a safe workspace as they are gender-neutral, impose civil sanctions and impose fair obligations on the employer.

Nepal

  • In as early as 2015, the Nepal government enacted the Sexual Harassment at Workplace Prevention Act. The Act is comprehensive because it defines sexual harassment in a wide manner (it includes quid pro quo and flirting) and explicitly imposes an obligation on the employer to ensure the emotional well-being of the victim. It also provides two different avenues for reporting complaints.
  • However, the internal complaint mechanism starts with the HR manager or the head of administrative affairs. This goes against principles of natural justice since an independent body which does not have a power relationship with the complainant must be the primary point of contact.
  • This is also exacerbated by the Act not requiring an internal complaints committee, and allowing the HR to initiate reconciliation, make the perpetrator apologise to the victim and determine and arrange compensation for the victim.
  • Furthermore, initiating a complaint under the Act does not preclude the complainant from filing complaints under other laws (such as the Mulaki Ain).
  • Hence, there is a need for the law to be centralised and be compliant with the principles of natural justice.

Thailand

  • In Thailand, Section 16 of the Labour Protection Act prohibits any form of sexual harassment, assault or abuse by an employer, supervisor or instructor against an employee. It is also gender-neutral.
  • This is complemented by criminal laws, which punishes retaliation by respondents, inappropriate gestures or acts of an unwelcoming and sexual nature and sexual harassment due to power dynamics (example: employer and employee) of the complainant and respondent.
  • However, there is a need for a single legislation which adequately addresses an employer’s obligations and grievance redressal mechanism.

Malaysia

  • Sexual harassment in the workplace, in Malaysian laws, is codified under the Employment Act of 1955. It defines sexual harassment as “unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.”
  • Furthermore, Section 81A of the Employment (Amendment) Act, 2012 allows employers to file cases of sexual harassment against their employee. It also empowers the employer to take scaled action against the guilty after completing an inquiry.
  • Also, employees can file complaints against the employer if they are not being compliant with opening an inquiry into a case of sexual harassment, and the employer can be fined up to ten thousand ringgits.
  • In 2021, a bill to prevent women from sexual harassment at the workplace was not passed due to the pandemic. Ever since, no action has been taken on it. The Malaysian government must immediately pass the bill.

While these laws are mostly compliant with international commitments such as the ILO Discrimination Convention, Convention on the Elimination of All Forms of Discrimination Against Women and International Covenant on Civil and Political Rights, they must continue to meet growing trends in sexual harassment laws. These include catering to the intersectional approach to sexual harassment, adopting diversity and inclusivity principles into their policy and making sure that their policies are compliant with the principles of natural justice. However, taking a broader view, these laws are comprehensive and set the stage for the evolution of a robust mechanism to prevent and manage all forms of sexual harassment at the workplace.

If you have any questions about PoSH, be it end-to-end PoSH compliance, IC training, PoSH workshops or other specific PoSH-related questions, contact The Outcast Collective for advice. You can call us or reach us via WhatsApp at +918928021419 or write to us at rutuja@theoutcastcollective.com.

Article Contributed By– Anjana Palamand
(http://linkedin.com/in/anjanapalamand)