Sexual Harassment affects all women in some form or the other. Lewd remarks, indecent touch, wolf whistles, and inappropriate stares are so commonplace in every woman’s life that it is almost dismissed as normal. Working women are no exception to this.
Sexual harassment in the workplace is widespread. According to a study conducted by Statista, it is estimated that 25%–85% of women have experienced some sort of harassment at work.
To abate the issues of Sexual Harassment, the POSH (Prevention, Prohibition, and Redressal) Act was established by the Supreme Court in 2013. While the Act requires companies with more than 10 employees to have an Internal Committee to redress Sexual Harassment complaints, in truth, most companies do not even have an Internal Committee to address such complaints.
Sexual Harassment often makes the victim feel guilty even though it is not her fault. As per an article published by Hindustan Times on January 4th, 2017, a survey conducted in 2017 by a non-governmental organization reveals that 68.9% of sexual harassment incidents at workplaces go unreported. The survey found that 68.9% of the victims who endured sexual harassment at workplaces did not make an official complaint due to factors like fear, embarrassment, lack of confidence in the complaint mechanism, unawareness, or the stigma attached to the issue. Research in recent times, show that number almost remains the same - at 63%.
Although most complaints are genuine cases of sexual harassment, the minuscule percentage that do get reported, are dismissed as bogus or malicious complaints. An analysis conducted between January 2022 and March 2022 further revealed that eight out of the ten complaints that were reported faced retaliation in some form or the other (Source: a report published by ETHRWorld on February 4th, 2023).
The executioner, in almost every complaint ascertains that the complaint is bogus or malicious in nature. The victim is then further hounded for her inability to prove her allegations. A report released by the U.S. Equal Employment Opportunity Commission (EEOC) in 2020 showed that 55.8% of the complaints received during 2020 are related to retaliation after reporting a sexual harassment incident. Further, according to the women surveyed by ABC and Washington Post, 95% of harassers go unpunished. (Source: InspiredLearning.com)
A malicious complaint is one made with an intent to cause harm, a deliberate attempt to defame a colleague or manager through conjuring up lies about an issue or incident that never really occurred with the knowledge that it would cause distress.
According to Section 14 of the POSH (Prevention, Prohibition, and Redressal) Act 2013, women can be penalized for filing bogus complaints. Although it is clearly outlined in the Act that the incapability to authenticate a claim would not be punishable, it has been found that the existence of this clause itself deters women from filing any complaints.
In the case of Usha C.S vs. Madras Refineries, witnessed by the Madras High Court, the employee stated that she was denied her study leave with pay, salary, and promotion since she refused the advances of the general manager of her department. A complaint committee was established, but the employee, for some reason, continuously delayed the inquiry hence it was concluded that her allegations of sexual harassment were purely a weapon used to negotiate for a promotion, study leave and pay which was opposed to company policy. The bench further dismissed it as a frivolous complaint. (Source: Legal Service India).
The Delhi High Court, in Anita Suresh vs. Union of India & Ors, in recent times imposed a fine of INR 50,000 on a lady who had filed a grievance of workplace sexual harassment but was unable to corroborate the same for lack of evidence or witnesses to authenticate her case (Source: Legal Service India).
The biggest challenge women face in making a complaint is that it is easily concluded that most women who are making a complaint under the POSH Act are misusing the Act for their personal benefits.
But the question here is how does one evaluate whether a complaint is malicious or genuine? Does lack of evidence prove the complaint to be bogus? Or do some hidden facts necessitate them as malicious? Additionally, how do you prove the intent behind the complaint to be malicious? Lack of evidence to prove the claim does not corroborate the complaint as malicious. These are some questions that the Internal Committee must consider before dismissing a claim as malicious so that justice can be served upon the complainant.