Sexual Harassment at the Workplace: Law, Fear, and the Ethics of Silence

Context

Sexual harassment at the workplace in India has finally begun receiving sustained public attention, particularly after the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013—commonly known as the POSH Act. Enacted in response to the Supreme Court’s Vishakha judgment, the law marked a milestone in recognising workplace safety as a constitutional and ethical imperative.

Yet, beneath reported cases and corporate disclosures lies a troubling reality: systemic under reporting driven by fear of retaliation, power imbalance, stigma, and institutional distrust. The existence of law has not automatically translated into justice or safety.

Understanding the POSH Act: A Brief Overview

The POSH Act seeks to:

• • Prevent sexual harassment,
  • Prohibit such conduct, and
  • Redress complaints through institutional mechanisms.

It provides a broad and inclusive definition of sexual harassment, covering:

• • Unwelcome physical contact and advances
  • Requests for sexual favours
  • Sexually coloured remarks
  • Showing pornography
  • Any unwelcome verbal, non-verbal, or physical conduct of a sexual nature

Institutional Mechanisms

• • Internal Complaints Committee (ICC): Mandatory for workplaces with 10+ employees
  • Local Complaints Committee (LCC): At district level for smaller workplaces or complaints against the employer

The Act prescribes:

• • • Time-bound inquiry (90 days),
    • Confidentiality of proceedings,
    • Employer responsibility to ensure a safe workplace.

Reality Behind the Numbers: Under reporting Persists

Despite legal safeguards, harassment remains widespread and under reported.

Key Data

• • 43% of Indian women report workplace harassment or microaggressions (Deloitte Women@Work 2024).
  • 29% rise in POSH complaints among NSE-listed companies (2,325 cases in 2023-24).
  • 67% increase in unresolved cases.
  • 59% of companies lack a properly constituted ICC.

Sectors with highest incidence:

• • Services (IT, hospitality, retail),
  • Construction, metals, and mining—largely male-dominated spaces.

These numbers reveal not success, but exposure of long-suppressed realities.

Why Victims Remain Silent: Ethical Barriers to Reporting

1. Fear of Retaliation

2. Lack of Trust in Institutions

3. Social Stigma and Shame

4. Power Imbalance

5. Emotional and Psychological Cost

6. Lack of Awareness

Implementation Gaps in the POSH Regime

Despite its progressive design, implementation remains uneven:

• • ICCs improperly constituted or inactive
  • Minimal training and awareness programs
  • Delays beyond statutory timelines
  • Compliance reduced to annual disclosures, not lived safety

In 2022-23, nearly 25% of cases exceeded the 90-day inquiry limit, eroding confidence in redressal.

 Judicial Intervention

In Aureliano Fernandes v. State of Goa (2023), the Supreme Court:

• • Set aside a hasty ex parte ICC inquiry,
  • Reaffirmed natural justice and procedural fairness,
  • Emphasised proper constitution and neutrality of ICCs.

This case underlines that justice for victims cannot come at the cost of due process, but lack of due process must never become a shield for impunity.

Core Ethical Issues

• • Fear vs Justice: When survival outweighs dignity
  • Power vs Vulnerability
  • Compliance vs Conscience
  • Law vs Culture

Ethical Frameworks

• • Ethics of Care: Recognising trauma, vulnerability, and empathy
  • Rawlsian Justice: Institutions must protect the least advantaged
  • Gandhian Ethics: Silence in injustice is moral failure
  • Public Trust Doctrine: Employers as trustees of employee safety

Breaking the Cycle: Way Forward

1. Legal & Structural Reform

• • Expand definition of “workplace” (remote, gig, informal work),
  • Integrate serious offences with criminal law,
  • Independent audits of ICC functioning.

2. Strengthening ICCs

• • Mandatory training,
  • External members with real autonomy,
  • Penalties for non-compliance.

3. Cultural Transformation

• • Zero tolerance for retaliation,
  • Leadership accountability,
  • Bystander intervention norms.

4. Economic Security

• • Stronger social security to reduce fear of job loss,
  • Protection against retaliatory termination.

5. Transparency & Monitoring

• • Public disclosure of anonymised complaint data,
  • Regular compliance reviews.

Conclusion

The POSH Act is a necessary but insufficient condition for workplace safety. Fear of retaliation, institutional apathy, and cultural stigma continue to silence victims. Genuine progress requires more than compliance—it demands ethical leadership, institutional courage, and cultural change. A workplace where women fear speaking up is not merely unsafe—it is morally bankrupt.

“Law can punish misconduct, but only ethics can prevent it.”

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