How Legal Can Help Navigate The Grey Areas In The POSH Act

When workplace realities blur the lines, legal teams can help see through the fog.

Since its enactment in 2013, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act (POSH) has transformed India's workplaces. It has empowered women to speak up and made organisations accountable for maintaining a safe and healthy work environment.

According to a study by the Centre for Economic Data and Analysis (CEDA), sexual harassment complaints among India's top 300 companies jumped by 51.2 percent in FY 2022–23—from 767 to 1160 cases. Recent developments reinforce this momentum. The Supreme Court's December 2024 directive tightened enforcement by directing every State and Union Territory to complete district-level POSH compliance surveys and ensure that all employers have properly constituted the Internal Committees which are responsible for investigating complaints. Meanwhile, the proposed 2024 amendments seek to extend the complaint-filing period from the current three months to up to twelve months.

Yet, even as reporting increases, resolution lags. One reason is that several POSH cases sit in grey areas. Internal Committees (ICs) understand the statute well. Most organisations do. But real-world cases rarely present themselves in neat legal categories. Facts are complex and relationships influence context. Hybrid environments blur the definition of "workplace".

It's a bit like driving through fog. The road remains the same but visibility drops. You rely less on the lines on the road and more on judgement, experience, and interpretation. This is where the legal department enters the frame. The IC runs the inquiry; HR manages process and communication; but legal teams help interpret unclear terrain and build a governance structure that makes decisions consistent and defensible.

This partnership works only when roles are well-defined: Legal advises on procedure and risk, but the IC remains the independent decision-maker to ensure fairness and credibility. Much of Legal's work actually happens before any complaint arises: putting policies, safeguards and reporting pathways in place so the IC has a solid system to operate within.

Here are three grey areas under POSH where the role of the legal team can be especially important.

Gender neutrality

The POSH law protects only women as "aggrieved persons". That means complaints from persons belonging to other genders technically fall outside its scope. But modern workplaces include diverse gender identities, and employees expect equitable treatment irrespective of legal categories.

The IC cannot act on such cases under the POSH framework. Some organisations respond by saying that such complaints should simply go to HR. But wouldn't we still want a trained, sensitised committee—experienced in handling workplace sexual harassment—to inquire into such cases?

This is where the legal team's role becomes essential. Legal can help the organisation build a parallel pathway. Here are some of the steps that Legal can take on this front:

• Design a gender-neutral harassment policy and redressal mechanism that sits alongside POSH, with the same standards of confidentiality, timelines, and enquiry rigour.
• Constitute a parallel committee—where the IC can function as a Grievance Committee (GC) to handle complaints from other genders—operating under internal policy rather than the POSH statute.
• Ensure procedural symmetry in line with the Code of Conduct or service rules so complainants of other genders feel protected and the complaints are handled consistently.
• Clarify risk allocation, documentation and escalation, especially where conduct may still expose the organisation to legal or reputational fallout.
• Prevent the IC from overstepping its statutory mandate, while still ensuring meaningful redressal for all employees.

Safeguards: It's important that Legal remains an advisor, and not an investigator. It can shape the parallel framework but the IC or the parallel committee should retain full independence in decision-making.

Anonymous complaints

Anonymous complaints often stem from fear of retaliation or simply not wanting to be 'the one who complained'. But the POSH framework doesn't permit the IC to act on anonymous complaints. Natural justice requires that respondents know the charge.

At the same time, dismissing anonymous disclosures could result in ignoring early indicators of cultural discomfort. There's often truth to the adage that there's no smoke without fire.

Legal can help the organisation build a responsible pathway by doing the following:

• Integrating anonymous disclosures into existing whistleblower or ethics channels, rather than letting them drift.
• Supporting complainants in meeting legal requirements—including the need under Section 9 of the POSH Act for a written complaint—by giving them the confidence and assurance to come forward without fear.
• Implementing anti-retaliation safeguards that give individuals the confidence to step forward with a named complaint.
• Advising on when preliminary fact-gathering is appropriate and when it would violate natural justice.

Safeguards: Legal cannot represent either party. Their role is to protect the fairness of the process. In case the IC is aware of the identity of the complainant, it has a responsibility to build trust and ensure that the complainant will face no retaliation, hostility, or prejudice for coming forward. Ideally, the company should create a culture and environment where employees have the courage to speak in their own voice.

Defining "workplace"

The POSH Act defines "workplace" broadly as it covers offices, virtual spaces, transport, client sites, employer-sponsored events and any interaction arising out of employment. But as work and life intertwine, confusion sets in. Is a casual chat on a WhatsApp group considered workplace interaction? What about a weekend dinner between colleagues, or a comment made during an informal outing?

ICs often struggle to decide where the professional line ends and the personal begins. Often, the answer depends not on place but on connection. Here again, the legal team could play a clarifying role by doing the following:

• Developing a nexus test: Did the incident arise out of a professional relationship or affect workplace functioning?
• Providing scenario-based guidance for ambiguous situations.
• Standardising documentation so jurisdiction decisions are consistent and defensible.

Safeguards: Legal's role is to support consistency, and not to predetermine outcomes. This means Legal can help the IC understand how courts have interpreted "workplace," advise on how to document the nexus rationale, and ensure the reasoning is defensible. But, ultimately, the IC must independently decide jurisdiction in each case.

Conclusion

Organisations often ask: "Why train the IC every year if the law hasn't changed?" Because everything around the law keeps transforming. Workplaces evolve, relationships shift, digital behaviour changes, and what feels safe—or unsafe—changes with it.

This is where Legal can add real value. When Legal, HR and the IC work together, they see more of the picture and can navigate the grey areas with more confidence. But this partnership only works when boundaries are clear. Legal advises on process, and not on specific facts. It doesn't represent either party. Everyone involved needs to know who is investigating and who is supporting. External experts must step in when neutrality is essential. Joint training should keep Legal, HR and the IC aligned.

With Legal's involvement, good governance, clear guardrails and a culture that encourages people to speak up, organisations can navigate even the hazy stretches of the POSH path with clarity and humanity.

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.