man, woman, gender

POSH Act vis –à- vis Gender Neutrality – An Analysis


This research paper aims to examine the existing Prevention of Sexual Harassment Act and analyse the correlation with gender neutrality while emphasizing on the need for gender neutral laws to cater to all gender identities facing sexual harassment at workplace. Keeping in mind the societal shifts and dynamic nature of society, it is imperative to keep up with the changing times and to adapt the legal framework according to the same. The paper also analyzes the existing POSH policies of a number of companies as on date and their initiative to strive towards gender neutrality.


POSH ACT 2013, Gender Neutrality,  Transgenders, Sexual Harassment at Workplace


In 1992, Bhanwari Devi, a social worker working with the Rajasthan government to bring an end to child marriage was gang-raped by five men after she tried to prevent the marriage of a one-year-old girl.[1] A NGO filed a plea in the SC to punish the perpetrators under a pseudonym ‘Vishakha’, the Court noting the absence of any law enacted to provide for effective enforcement of the basic human right of gender equality” guarantee against “sexual harassment at workplaces”, laid down a set of guidelines in 1997, outlined as the Vishakha Guidelines, to fill the statutory void till a law could be enacted.

These were to be “strictly observed in all workplaces” and were binding and enforceable in law. The Court drew its strength from several provisions of the Constitution including Article 15 (against discrimination on grounds only of religion, race, caste, sex, and place of birth), also drawing from relevant International Conventions and norms such as the General Recommendations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.

Ultimately, in 2013 a law was passed and enacted by the Parliament which provided protection and safeguards to women specifically at their workplaces called the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)[2] or commonly known as POSH Act.

The Act served in itself a monumental purpose by safeguarding women against untoward sexual advances at the workplace and in a professional setting. However, today as almost a decade has passed since the passing of this Act, it is important to reflect back whether or not the Act has kept up with the changing times and dynamics of modern society with respect to several gender identities existing today and how only one of them is protected under this Act.


A descriptive methodology has been followed based on an amalgamation of primary as well as secondary sources to analyze the POSH Act, Gender Neutral laws and their correlation. Primary sources include the above-mentioned statute and related case laws. Secondary sources include commentaries on the statute, law review articles and Law Commission Reports.


Books, articles and research papers were referred to gain a deeper understanding of the concept of sexual harassment and the several aspects to it.  What is Sexual Harassment[3] by Abigail C. Saguy explained the coining of the term and concept of Sexual Harassment and different connotations attached to it as per region. For better understanding, a comparative analysis between United States of America’s and France’s conceptualization of Sexual Harassment has been drawn with reference to concepts like laissez-faire. 

Sexual Harassment in the Workplace[4] by Mary L. Boland explains in detail about the occurrence of sexual harassment at workplace and the lesser known types and categories to it such as – quid pro quo and hostile environment. The essential elements or issues of sexual harassment have also been outlined – unwelcome conduct, isolated comments, favoritism or being sidelined due to existence or absence of sexual relationship etc.

Confronting Sexual Harassment [5]by Anna-Maria Marshall highlighted the ground realities of sexual harassment and notions held about it. Opponents of the sexual harassment laws are of the opinion that sexual harassment as a concept has been greatly exaggerated and that humorless feminists threaten to stamp out men and women’s most basic instinct – flirtation and sexual conversation in a place where they spend most of their time. Furthermore, she goes on to furnish that despite well-framed policies and procedures that comply with legal requirements, sexual harassment continues to occur at workplaces.


Firstly, the title of the Act itself – Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) contains the word ‘women’ referring to females.  The Preamble of the Act states the objectives of the Act and what it strives to obtain ~ An Act to provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.

WHEREAS sexual harassment results in violation of the fundamental rights of a woman to equality under articles 14 and 15 of the Constitution of India and her right to life and to live with dignity under article 21 of the Constitution and right to practice any profession or to carry on any occupation, trade or business with includes a right to a safe environment free from sexual harassment;

Section 2(a) clearly defines the term ‘aggrieved woman’ by referring to a woman in relation to a workplace – employed therein or not, or employed in a domestic household who alleges to have been subjected to any act of sexual harassment by the respondent.

Section 2(n) thereon outlines the acts, which constitute sexual harassment. These being –

  • Physical contact and advances; or
  • A demand or request for sexual favors; or
  • Making sexually coloured remarks; or
  • Showing pornography; or
  • Any other unwelcome physical, verbal or non-verbal conduct of sexual nature

It is imperative to emphasize here that the two sections mentioned above can be said to be on differing grounds since 2(a) as well as the Title clearly defines that under the Act, only a woman can seek redressal for any unwelcome physical, verbal and non verbal conduct of sexual nature. However, Section 2(n) which encapsulates the incidents which constitute to be sexual harassment can in fact be faced by males or rather other genders except the two binary ones.


Although the general mindset regarding the same pertains to it being largely uncommon, however sadly the reality differs greatly and all genders and in specific males can also be a victim of sexual harassment at workplace.

The last survey[6] conducted with its data available to the public at large was in 2010, which in itself indicates the importance given to the issue and the seriousness with which it is treated. In the survey, of the 527 people queried across seven cities – Bangalore, Chennai, Delhi, Hyderabad, Kolkata, Mumbai, and Pune – 19% said they have faced some kind of sexual harassment at the office. Around 38% of the respondents across 7 cities in India said that in today’s workplaces, “men are as vulnerable to sexual harassment as women.”

With urban employment and migration from rural areas to urban areas in search of employment, and supporting data[7] showing urban Labor Force Participation Rate and Worker Population Ratio to be steadily increasing – it may be concluded to say that the statistics are outdated and the number of cases of sexual harassment of genders other than females has increased with the increase in workforce population.


Gender neutrality refers to the concept of eliminating gender based inequality and taking a middle ground approach by not specifically referring to any particular gender and including all those gender identities.

It is an initiative to be inclusive towards genders except the binary genders which have been a norm ever since. For instance, Supreme Court in a 2014 judgment[8] went on to grant recognition to the transgender community or the third gender. It was a landmark judgement which in essence gave rights, recognition, protection and safeguards to the transgender community – however, it is necessary to emphasise that this judgment in reality could not overrule the statutes passed by the Parliament such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) as although it granted them recognition but they cannot file a complaint under the same as it only caters to women and can be said to be a gender exclusive law. 

The Gender Neutral Language Guidelines of the European Union opines that the purpose of gender-neutral language is to avoid word choices, which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. Using gender-fair and inclusive language also helps reduce gender stereotyping, promotes social change and contributes to achieving gender equality.

India’s antiquated laws mostly are a result of and cater to the general misconception that with respect to sexual offenses – only a man can be a perpetrator and only a woman can be a victim. This may be because of the societal notion of a man being ‘strong’ and hence his becoming a victim would directly contradict their notions. Unfortunately, this adversely affects rights of those who do not confine themselves within the binary definitions of male and females like the transgenders or third genders. 

In Yusuf Abdul Aziz v. State of Bombay[9]The appellant was charged with Section 497 of Indian Penal Code, 1860 which defines adultery and in essence only holds the man to be responsible. He challenged the provision’s constitutional validity in the Bombay High Court and when that was decided to be constitutionally valid, appealed in the Supreme Court. It was held that the aforementioned provision is constitutionally valid due to the authority granted to the State by the Constitution within Article 15(3)[10] to make special provisions for women and children. The section can be said to be heavily influenced from societal gender stereotypes according to which women cannot be sexual offenders and it can be defined as a weakness on their part. This reflects the need for gender neutral laws in India to grant adequate protection to men and transgenders both.

In Anuj Garg v.  Hotel Association of India[11], it was declared that preconceptions of gender roles cannot be used as the foundation of law, cannot bestow uneven advantages and cannot burden any one particular gender.  The decision thereby emphasized on the formulation of laws and policies on the basis of gender roles and stereotypes and how the same is unfair.

In 2000, in response to a writ petition filed by an NGO – Sakshi v. Union of India[12] and as requested by the Supreme Court, the Law Commission filed its 172nd Report titled ‘Review of Rape Laws’ in which it drew attention to the need for gender neutral laws. The Committee chaired by former Chief Justice of India Justice J.S. Verma gave the suggestion to widen the scope and ambit of laws previously legislated only to safeguard women – ie. Formulation of gender-neutral laws.  However, certain gruesome cases with violence and crime against women formed the basis for social groups to reject this contention.          

Thus, it becomes absolutely necessary to highlight that framing of gender neutral laws would not adversely affect the currently protected groups namely the woman as protection of all gender identities need not be mutually exclusive of one another and by using gender neutral language such as with respect to defining ‘aggrieved’ it may be any person, employee or not of any gender.


Broadly, the term ‘transgender’ translates to those whose gender identity does not conform or correspond to the sexual identity granted to them at birth including transmen, transwomen, hijras, eunuchs etc.

Discrimination against transgenders has ever since been a feature of our society and with employment opportunities being provided to them with the advent of time, this discrimination has unfortunately carried forward to the workplace as well.  Several surveys have been conducted to assess the same and statistics echo the same fact.    The Indian LGBT Workplace Climate Survey conducted by Mission for Indian Gay and Lesbian Empowerment (MINGLE)[13]  in 2016 on a group of 100 employees from the top MNC’s and the results came out that at least 40% of the LGBTQIA+ employees have faced some kind of harassment at workplace stemming from the societal mindset against them. Furthermore, according to the survey 2 out of every 3 have been subjected to homophobic slurs sometimes even from their own supervisors or managers sometimes.

In 2014, the World Bank published a report titled, ‘The Economic Cost of Homophobia and the Exclusion of LGBT People: A Case Study of India[14]’ in which it was furnished that homophobia and exclusion of the LGBT from the workplace leads to an approximate 0.1- 1.7% loss of GDP. Moreover, 56% of the LGBT people employed reported discrimination in white- collar jobs thereby emphasizing on the need for safeguards to protect their interests at the workplace.


The POSH policies of major Corporate giants and MNC’s in India is a mixed bag of results with some of them being gender neutral ie. Granting protection to all employees irrespective of gender against sexual harassment. At the same time there are some companies having POSH policies, which are exclusively for the protection of women employees. This leads to an ambiguity in the mind of the employee as to whether or not protection will be granted under Company policy guidelines.

On analyzing and studying the POSH policies of leading companies, the following information was gathered – KPMG one of the top 4 Consulting Company uses gender-neutral terminology by simply referring to a victim or aggrieved and not attaching therewith a particular gender. They have a robust preventive framework consisting of in-person workshops, online awareness modules, preparedness of the Internal Complaints Committee and the Investigation of complaints.

Accenture, a leading IT & Consultant company of India explicitly states in its POSH policy to be a gender-neutral and inclusive of all employees who face sexual harassment at workplace.  They have a zero-tolerance policy for all employees, suppliers, customers and vistors. An Internal Complaints Committee has been set up which believes in taking appropriate and necessary action against all perpetrators – action ranging from a warning given to termination of employment.

PWC (Price Waterhouse Cooper) is a Multinational Company catering several professional services including auditing, accounting, human resource management and strategy management. In its POSH policy, it mentions and defines ‘aggrieved individual’ instead of ‘aggrieved woman’ thereby including any person, employed or not – of any age who alleges to be subjected to sexual harassment at the hands of the respondent. Gender neutral terms such as ‘individual’ for the victim and ‘respondent’ for the perpetrator sheds light on their approach towards POSH. 

Hero MotoCorp Ltd. Is an Indian multinational automobile company and is one of the world’s largest two-wheeler manufacturers with a market share of approximately 46%. In their POSH policy, it is clearly stated to be gender neutral and intends to create a safe working environment for all where there is zero tolerance for any form of sexual harassment.

Tata Steel Industries, one of the pioneers of the Indian market and a major contributor to the Indian economy unfortunately has a POSH policy catering only to women employees of the organization.

Following the lead of these multinational path breakers, small-scale companies have also started treading on the same lines by including a gender neutral approach. For instance – Utkarsh Small Finance Bank, a small scale bank incorporated in 2016 has adopted a gender neutral approach as written in their POSH policy. They strive to have an environment safe from verbal or physical abuse and unwarranted sexual overtures by taking strict action against any persons who are perpetrators of sexual harassment regardless of their gender.

These are just a few companies who have adopted this approach and there is a long way to go for the creation of a safe working environment for all irrespective of gender. Many small companies and MNCs are yet to adopt this approach and a legislation directing them to do the same would be highly effective and should be formulated.


The following recommendations/ suggestions are outlined based on the findings of this research  –

  • Clearer definitions – definitions in the Act must be rephrased to include a clearer understanding for all including laymen
  • Wider scope – the ambit of applicability of the Act must be expanded to include all gender identities and not just be exclusively applicable to women
  • Regular audits & checks – in order to ensure that proper workplace environment is maintained, frequent and regular audits must be conducted
  • Workshops to generate awareness among employees – in order for the employees to report incidents of sexual harassment, it is imperative for them to be aware of the redressal mechanism and safeguards available at their disposal
  • Anonymity- if the complainant decides for the complaint to be filed under an anonymous identity, the same must be allowed for his/her security and to reduce fear of retaliation on part of the perpetrator.


Sexual harassment is an occurrence which, if not permanent leaves longstanding impacts on the victim. These range from physical, mental, emotional to psychological with the daily routine of a person being disrupted. It has been observed that sexual harassment also impacts several rights guaranteed by the Constitution such as right to equality, right to not be discriminated against etc. These rights are granted to all citizens and thereby protection and safeguards in instances of their violation must also be granted to all citizens.

Thus, there stands a void in the legal system of India with no legal recourse given to the males or transgenders in case of sexual harassment at workplace being suffered by them. This void must be filled in at the earliest as in the 21st century, the archaic notions of only a woman being a victim and only the man being the perpetrator must be set aside as has been done by the Supreme Court’s Handbook on Combating Gender Stereotypes. Either a new legislation must be formulated to cater to this need of the society or the current one should be amended to include all gender identities.

Sonniya S Katyal

Vivekananda Institute of Professional Studies, New Delhi

[1] Vishakha v. State of Rajasthan, (1997) 6 SCC 241

[2] Sexual Harassment of Women at Workplace(Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament, 2013 (India)

[3] ABIGAIL C. SAGUY ,  WHAT IS SEXUAL HARASSMENT – FROM CAPITOL HILL TO THE SORBONNE 25 (Regents of the University of California, 2003)



[6] [ET BUREAU],[] (last visited Aug. 13,  2023)

[7] Directorate General of Employment – Employment and Unemployment Scenario of India Survey 2021-22 [ ]

[8] NALSA v. Union of India (2014) 5 SCC 438

[9] Yusuf Abdul Aziz v. State of Bombay, 1954 AIR 321, 1954 SCR 930

[10] INDIA CONST.  art. 1, cl. 3

[11] Anuj Garg v. Hotel Association of India, AIR 2008 SC 663

[12] Sakshi v. Union of India, 1999 SCC 591

[13] [MINGLE], [ ] (last visited on Aug. 14, 2023)

[14] [WORLD BANK], [ ], (last visited on Aug. 14, 2023)