Does male and LGBTQ employees also comes under the ambit of POSH Act
Author : Supriya Bhattacharjee of Vidyasagar University
With the development of society men and women are standing on the same ground everywhere with equal opportunities. Earlier, women’s are not allowed to step out from their houses specially after the sunset and they are said to be household workers and men had to take the responsibility of the house as he is being the bread earner. Women’s are mainly surrounded by husband, in laws, family and household chores but as we can see the scenario has totally changed now, they are stepping out their houses for work with the support of their family members, they are becoming more independent.
Now the male domination has been reduced and the laws which are being made it give equal footing to the females. If we are talking about this act has been a lot of anxiety around the fact that only the women are protected under this act, men and LGBTQ are not covered under this act. They cannot initiate any proceeding under this act if in case of sexual harassment or if they bullied, Seven years on this apprehension still remain.
What is POSH Act is all about-
To begin with, the full form of the POSH is Prevention Of Sexual Harassment as this Act as this is only protects women in workplace so it is generally called as Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013.The main purpose of this act is to provide the safe environment for women at workplace as they have a right to work with dignity which are universally recognised human rights.
Under this act the Internal Committee (IC or ICC) is to be constituted by every organisation which having more than 10 employees in their premises. The internal committee has a same power vested in the power of civil court under CPC. It is to be noted that the Act only covers aggrieved women under sec 2(a), the Internal Committee will not able to perform it powers of a civil court if the victim is not female. Nowhere it is mention of a term aggrieved man or LGBTQ as they can be a subject to sexual violence and needs to be guided under this act.
Applicability of the Act-
The applicability of this act is only applicable towards the protection of women only the aggrieved women can get relief of the posh act. A man who is a victim of sexual harassment in the workplace is not entitled to invoke POSH law.
Further if we take a look on the Indian Penal Code, 1860 it talks about the man making physical contact and advances involving unwelcome and explicit sexual overtures or demanding sexual favours or making sexually colored remarks or showing pornography content against the will of such person, shall be punished with rigorous imprisonment for a term extending to maximum period of three years with fine or with both.
It is also stated that if the Trans person identifies as a woman she will be protected under the POSH Act as because she is fall under the ambit of aggrieved women under this act.
The act also provides some other circumstances where the sexual harassment may constitute those are:
- Promise of preferential treatment in employment
- Threat of detrimental treatment in employment;
- Threat about present or future employment
- Creating an intimidating or offensive or hostile work environment
- Humiliating treatment potentially endangering health or safety
Is this act is only for females-
It is pertinent to note that most of the people are not aware of the fact that the Act doesn’t just protect women but it also protects women who are customers, visitors, vendors, consultants, interns etc. This act also protects any woman who walks into the workplace irrespective of whether she’s an employee of the organisation or not. However, this act has many lacunas in the guidelines where the men and LGBTQ community are not even protected under this act so because of this many questions are arise like why only women are given legal protection? Where should men and other gender go to file a complaint if they are sexually assaulted? These kind debates are still going on.
How can we protect male and LGBTQ from this instances-
The organisation can protect their non-female employees by having a separate policy on harassment and sexual assault, which is a part of their service rule, where IC can investigate the cases of sexual harassment for all genders. It is to be noted that the actions recommended will only be counted as disciplinary actions and not be a part of POSH Act.
In my Opinion-
It is clear from the above circumstances that the man and LGBTQ are not cover in this act so they cannot take any legal options. The act is not a gender neutral law, where they only cover the female employee. However, after reading this act it also shows that the female is always to be a weaker section of the society and they needs protection. But it also gives a clear vision that only female are not being a sexual offender but they always be the one who exploited. On the other hand the act fails to provide the protection for men and LGBTQ persons they can also be a victim to such crimes. Although there are many sensitization programs, trainings, awareness programs are conducted which includes men and LGBTQ also, but there should be proper law which can protect this two sections also.
