This is Part 1 of the 3 Part series blog which will cover some Frequently Asked Questions relating to the basic concepts of Sexual Harassment, its historical background, need, scope, objective of POSH Act 2013 and what duties of employer.

1. What is "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (POSH Act)?

  • POSH Act was passed in 2013 by the Ministry of Law & Justice. This Act has been implemented to prevent and protect women from sexual harassment at the workplace and for the prevention and redressal of complaints of sexual harassment thereby ensuring a safe working environment for women.
  • Sexual harassment violates the fundamental rights of women under Article 14, 19(1) (g) and 21 of the constitution, to protect the fundamental rights of women this act has been enforced.
  • POSH Act had defined sexual harassment, laid down the procedures for a complaint and inquiry, and talks about what all action to be taken in such case of harassment at workplace.

2. What do you mean by Sexual Harassment under this act?

  • POSH Act has defined sexual harassment under Section 2 (n) of this Act which states that any unwelcome act or sexual behavior, whether directly expressed or implied, which includes the cases of physical contact, requested or demanded for sexual favour or making sexually coloured remarks or showing pornography and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
  • There are certain circumstances, if it occurs, may amount to sexual harassment given under Section 3 of this Act are:
    • Promise of preferential treatment at work.
    • Threat of detrimental treatment at work.
    • Threat about her present or future employment.
    • Interfering with her work or creating an intimidating or offensive or hostile work environment for her.
    • Humiliating treatment likely to affect her health or safety.
  • SC had explicitly defined the meaning of Sexual Harassment in the landmark case of Vishakha v. State of Rajasthan (1997).
  • In the case of Apparel Export Promotion Council v A.K. Chopra (1999) the Supreme Court enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment and sexual harassment also includes any action or gesture intended to outrage the modesty of a female employee, directly or indirectly.

3. Is Sexual Harassment only in physical nature?

  • No, sexual harassment not only includes physical conduct but also includes verbal and non-verbal conduct too under this Act.
  • Physical conduct:
    • Unwelcome physical contact including patting, pinching, stroking, kissing, hugging, fondling, or inappropriate touching.
    • Physical violence, including sexual assault.
    • Physical contact, e.g. touching, pinching.
    • The use of job-related threats or rewards to solicit sexual favours.
  • Verbal conduct:
    • Comments on a worker's appearance, age, private life, etc.
    • Sexual comments, stories and jokes.
    • Sexual advances.
    • Repeated and unwanted social invitations for dates or physical intimacy.
    • Insults based on the gender of the worker.
    • Paternalistic remarks.
    • Sending sexually explicit messages (by phone or by email).
    • Indecent, vulgar discussion with or in front of a woman
  • Non-verbal conduct:
    • Display of sexually explicit or suggestive material.
    • Sexually-suggestive gestures.
    • Whistling, staring.
  • In the case of Shanta Kumar vs CSIR & Ors. (2017), Delhi High Court held that all physical contact cannot be termed as sexual harassment and only a physical contact or advances which are in the nature of an "unwelcome sexually determined behaviour" would amount to sexual harassment.
  • In the case of Albert Davit Limited vs. Anuradha Chowdhury and Ors (2004) Calcutta High Court held that harassment may be a verbal or non-verbal conduct. Hence, a mere statement in a case where the plaintiff requested defendant to instruct the attendants to switch off the A.C. Machine, but in reply defendant said "... come close to me, you will start feeling hot ", can also be construed to be sexual harassment

4. Is there any mandate at the international level against Sexual Harassment?

  • The UN Convention on the Elimination of All Forms of Discrimination against Women also includes prevention from sexual harassment at the workplace.
  • It was implemented in the year 1979 by the UN General Assembly which is often described as an international bill of rights for women.
  • It enumerates what constitutes discrimination against women and also sets up a goal for national action to end such discrimination.

5. Who is an aggrieved woman under this Act?

  • According to Section 2 (a) of this Act aggrieved woman means:
    1. In relation to a workplace, a woman of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent.
    2. In relation to a dwelling place or house, a woman of any age who is employed in such a dwelling or house

6. What do you mean by Workplace under this Act?

  • Workplace is defined under Section 2(o) of the act which says that any place where an employee is required to do work or visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey which includes any department, organization, undertaking, establishment, enterprise, institution, office, any sports institute, stadium, sports complex or competition or games venue, hospitals or nursing homes, etc.
  • In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India(2008) the respondent had been facing a departmental inquiries for allegedly harassing a senior woman officer contended that he could not be accused of sexual harassment at work since the misconduct reportedly occurred not at work but in an official mess in which she resided, Delhi High Court held that the official mess, where the employee reported being sexually harassed, fell under the definition of a workplace under the POSH
  • In this SC laid down the test to determine whether a place is work place or not are:
    1. Proximity from the place of work.
    2. Control of management over such place/residence where woman is residing.
    3. Such a 'residence' has to be an extension or contiguous part of working place.
  • In another landmark judgement of Jahid Ali v Union of India & Ors (2017), Delhi High Court has made clear that the use of social networks such as WhatsApp, Messenger, Facebook,is not excluded from the scope of the workplace. Sending messages in any form (textual, graphic, video,or audio) is by no means less susceptible to consideration in assessing colleague´s harassment.

7. What are the duties and obligations of employer at workplace?

  • Section 19 of the Act requires, not only the establishment of internal committee and the timely redressal of workplace grievances but also certain other responsibilities on employer which are as follows:
    • Providing safe working environment at the workplace.
    • Displaying the consequences of acting in a manner that constitutes sexual harassment.
    • Organizing regular workshops and awareness programs to inform employees and IC members on workplace sexual harassment issues and its implications.
    • Providing necessary facilities to the internal committee for dealing with the complaint and conducting an inquiry.
    • Making available such information to the local committee as may be required in an inquiry.
    • Providing assistance to the women if she chose to file a complaint in relation to the offence under the Indian Penal Code.
    • Treating sexual harassment as misconduct and take action for such misconduct.
    • Monitor the timely submission of the reports by the internal committee.
  • The US Court of Appeals, in Yamaguchi vs. Widnall [1997] had said that an employer is liable for a co-worker's sexual harassment only if the employer learns of the alleged conduct and he fails to take adequate remedial measures. These measures must include immediate and corrective action reasonably calculated to end the sexual harassment and to deter future harassment from the same offender or others.
  • In Ellison vs. Bardy, [1991], the US Court of Appeals held that to avoid liability or penalised, an employer must take at least some sort of disciplinary action against a harassing co-worker in order to prevent future sexual harassment at workplace. Court also held that employers have a duty to express strong disapproval of sexual harassment, and to develop appropriate sanction.
  • Delhi High Court, inS. Verma, Principal Delhi Public School Society v. National Commission for Women(2009), held that employers have a personal responsibility to protect others from harm, and are not permitted to abdicate this responsibility by delegating it.


Sexual harassment complaints must be handled with the utmost discretion and care. It is critical to raise awareness on workplace sexual harassment and the framework available for preventing and dealing with sexual harassment complaints. Regular awareness sessions should be carried out, best practices be adopted and inform potential victims about all forms of sexual harassment so that any sort of mishaps can be avoided.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.