Same-Gender Sexual Harassment Complaints: Are They Maintainable Under the POSH Act?

The Prevention of Sexual Harassment of Women at Workplace Act, 2013 (POSH Act) in India is one of the most significant legal frameworks designed to protect women from sexual harassment in workplaces. Since its inception, it has facilitated the creation of safer work environments by establishing clear procedures for reporting and addressing sexual harassment complaints. However, a notable ambiguity in the POSH Act has sparked considerable debate—whether the Act covers same-gender harassment cases, particularly those involving women as perpetrators or men and LGBTQ+ individuals as victims.

This question has gained significance in light of evolving workplace dynamics and a growing understanding that sexual harassment is not limited by gender. While the POSH Act explicitly applies to protecting women, recent judicial interpretations and a broader societal push for inclusivity highlight a need to understand how this law interacts with same-gender cases of harassment.

The Scope of the POSH Act: Defining “Aggrieved Woman”

Under the POSH Act, only an “aggrieved woman” is authorized to file a complaint of sexual harassment. The law’s language explicitly refers to women as the intended beneficiaries, reflecting the original intent to protect women in workplaces, who statistically face high rates of harassment. Section 2(a) of the Act defines an “aggrieved woman” as a female employee (or a woman connected with the workplace, such as a client, intern, or visitor) who alleges sexual harassment.

However, the Act remains silent on whether this “aggrieved woman” can file complaints against another woman, creating an interpretative challenge. Some have questioned whether the Act allows for women-on-women harassment cases, and if not, whether this omission suggests that same-gender harassment isn’t acknowledged within POSH.

Judicial Interpretations and Recent Developments

In a recent landmark judgment, the Bombay High Court clarified that same-gender harassment cases are maintainable under the POSH Act, even when the alleged perpetrator is of the same gender as the complainant. In Dr. G v. State of Maharashtra & Ors., the court held that complaints by women against other women are valid under the POSH framework. The court emphasized that the Act’s primary purpose is to safeguard women in the workplace, regardless of the gender of the alleged harasser. This ruling aligns with an inclusive interpretation of the law and underscores that sexual harassment is a violation irrespective of the perpetrator’s gender, thereby ensuring women’s right to a safe working environment without restrictions based on the harasser’s gender.

This judgment was groundbreaking in confirming that the Act’s protections should apply fully when a woman faces harassment, regardless of the alleged harasser’s gender. By holding that same-gender complaints are within the scope of POSH, the court made it clear that sexual harassment is an issue of workplace safety rather than strictly gender-based dynamics.

The Delhi High Court’s stance in Sanjana Nair v. Union of India echoed this sentiment, affirming that complaints of harassment should be evaluated based on the behavior, not the gender of the individuals involved. This interpretation aligns with the Supreme Court’s broader directive to strengthen protections under the POSH Act and address enforcement inconsistencies through awareness and proactive measures.

Limitations for Male and LGBTQ+ Victims

Despite these judgments supporting the filing of same-gender harassment complaints by women against women, the POSH Act remains restrictive for male and LGBTQ+ victims. As the Act currently stands, male employees or LGBTQ+ individuals who experience sexual harassment from same-gender colleagues have no recourse under the POSH framework. This limitation highlights a gap in the law’s inclusivity and protection scope, which fails to acknowledge that workplace harassment can affect individuals beyond women.

In its observations, the Bombay High Court indicated that addressing this gap could require legislative action, as the Act’s text limits protections to “aggrieved women.” This restriction points to a broader need for amendments to POSH to create a more inclusive workplace harassment policy that accommodates the experiences of men and LGBTQ+ individuals.

Push Toward Gender Neutrality: Proposed Amendments and Advocacy

There has been a growing push within India for a gender-neutral workplace harassment law that addresses the needs of all employees. The National Commission for Women (NCW) has recommended amendments to make the POSH Act gender-neutral, arguing that sexual harassment laws should protect anyone subjected to workplace harassment. Although the recent legislative amendment bill, which proposes to extend the time limit for filing complaints, does not yet address gender neutrality, it indicates a willingness within the government to revisit and enhance the Act.

In response to ongoing lapses in enforcement, the Supreme Court has issued directives urging both public and private organizations to increase training, enhance awareness, and prioritize compliance. These directives underscore the necessity of comprehensive policies that leave no ambiguity around maintaining a safe and inclusive workplace.

Implications for Organizations: Adopting Inclusive Policies

Despite the POSH Act’s limitations, many organizations have proactively adopted broader policies to address same-gender and gender-neutral harassment. These organizations often implement internal policies that extend protections beyond POSH, covering all employees regardless of gender. This trend is especially noticeable in multinational companies that operate in India, where workplace harassment policies are often gender-neutral by default.

For companies, adopting a comprehensive approach that addresses all forms of harassment is beneficial, both in fostering a respectful workplace and in building a resilient organization culture. Implementing Internal Committees (ICs) trained to handle same-gender complaints helps provide a safe reporting environment for all employees, ensuring that no one is left unsupported in harassment cases.

Need for Better Data Collection and Transparency

Improved data collection and transparency are essential to better understand the prevalence of same-gender harassment in India’s workplaces. Currently, there is limited data on the issue, particularly regarding same-gender harassment incidents. Regular audits of Internal Committees, as well as transparent reporting on workplace harassment cases, would help policymakers and organizational leaders gauge the scope of same-gender harassment and address shortcomings.

For employees to feel safe and encouraged to report harassment, the workplace culture must support confidentiality and protection against retaliation. A proactive culture around reporting not only benefits victims but also fosters a more inclusive environment that recognizes the rights of all employees to work in safe and respectful conditions.

Moving Forward: Toward a More Inclusive POSH Framework

As India marks a decade since the POSH Act’s enactment, the Bombay High Court’s recent rulings highlight an increasing need for inclusive interpretations and possible legislative amendments to the POSH Act. Other nations, including the United States and the United Kingdom, serve as examples with gender-neutral workplace harassment laws that apply to all employees. Such models could inform potential amendments to POSH, making it a more comprehensive and inclusive framework that addresses the needs of all individuals facing harassment at work.

Until POSH is formally expanded, employers should take proactive measures by implementing inclusive policies and fostering awareness around same-gender harassment. Regular and detailed training programs can help demystify reporting processes and empower all employees to understand and address workplace harassment.

Conclusion

While the POSH Act has made significant strides in protecting women from workplace harassment, the recent judgments underscore the law’s current limitations in addressing harassment across all genders. The rulings from the Bombay and Delhi High Courts are crucial steps toward a more inclusive approach, recognizing that harassment is an issue of workplace conduct rather than a strictly gender-based problem.

Organizations, by adopting inclusive policies and robust reporting mechanisms, can play a pivotal role in filling these gaps. Additionally, as calls for gender-neutral legislation grow louder, the government has a significant opportunity to create a safer, more inclusive environment for all employees in India’s diverse workplaces.