Beyond the Binary: A Case for Gender-Neutral Posh Policies in India

Summary: The article explores the applicability of India’s POSH framework and how employers can build a more inclusive workplace harassment policy without diluting statutory protections for women. It seeks to offer practical guidance on extending protections to men, transgender and non-binary employees; structuring complaint-handling mechanisms, and embedding safeguards in employment contracts and service rules. It also explains the legal limits of a gender-neutral policy, helping employers distinguish between statutory powers and policy-based authority.

The pace at which the modern Indian workplace is changing and the law meant to protect it are not moving in tandem. The legal trend globally has moved towards gender-neutral protection: the International Labour Organization’s Convention No. 190 on Violence and Harassment (2019) defines “gender-based violence and harassment” by reference to conduct that harms “a person”, not a protected gender. The United States’ Title VII of the Civil Rights Act, 1964, protects any employee regardless of gender. The United Kingdom’s Equality Act, 2010, prohibits harassment “related to sex”, without confining the complainant class to women.

Global parents operating under these gender-neutral regimes now treat talent and dignity as untethered from gender. Yet the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act“), which converted the Supreme Court’s Vishaka v. State of Rajasthan ((1997) 6 SCC 241) guidelines into binding law, departs from this global convergence with a single, unambiguous purpose of protecting women. The POSH Act’s ten stated objectives from safeguarding women’s equality, dignity and constitutional rights to ensuring a safe, harassment free workplace are each expressed to only protect women.

The Delhi High Court in Dr. Sohail Malik v. Union of India (2023 SCC OnLine Del 3764) held that these objectives are “harasser-neutral”, i.e. agnostic to who commits harassment, but are gendered when it comes to the complainant. Section 2(a) defines an “aggrieved woman” as a woman, of any age, who alleges sexual harassment. However, there is no equivalent definition for a man, a transgender person, or a non-binary employee.

This imbalance carries real compliance, litigation and reputational risk for employers. However, since employment contracts and HR policies are within an employer’s own control, the gap can be closed well before any legislative fix. This piece examines whom the POSH Act protects and how an employer can build a gender-neutral framework.

What the statute actually protects, and what it does not:

“Aggrieved woman” under Section 2(a) of the POSH Act is confined to a woman who alleges sexual harassment. In contrast, “Respondent” under Section 2(m), carries no gender qualifier. Any person can be proceeded against as a respondent, but only a woman can be the complainant who sets that machinery in motion. A male or a transgender employee harassed by a colleague cannot file a complaint under the POSH Act.

Section 28 of the POSH Act provides that its provisions are “in addition to and not in derogation of” any other law. The Bombay High Court’s Division Bench in Shri Hiralal Rama Jadhav v. Additional Chief Secretary, Home Department & Ors (2017 SCC Online Bom 9422), while examining the interplay between the POSH Act and applicable service rules, observed that the POSH Act “does not override the provisions of the service rules,” and that “the service rules clearly operate in different and distinct fields”.

That is the key textual premise for a gender-neutral policy. Nothing in the POSH Act bars an employer from building a parallel, contractual mechanism for complaints outside scope of the Act.

Recurring scenarios that test the statute’s limits:

Employers, particularly those with global parents or global codes of conduct, now confront these fact patterns regularly:

• The male complainant with nowhere statutory to go: A male employee cannot lodge a complaint with the Internal Committee, because he is not an “aggrieved woman” under Sections 2(a) and 9(1). If the employer’s anti-harassment policy is POSH-only, he can lodge a general disciplinary complaint or, has recourse to Section 509 of the erstwhile Indian Penal Code (now mirrored in the Bharatiya Nyaya Sanhita, 2023). Neither of these offer the confidentiality, interim protection, or structured process the POSH framework affords a woman.
• The transgender or non-binary employee: The POSH Act predates the Supreme Court’s recognition of transgender persons’ right to self-identify and the Transgender Persons (Protection of Rights) Act, 2019. Consequently, the Act does not specify how such an employee’s complaint should be handled. A transgender woman may find her access to the statutory mechanism contested at the threshold, while a transgender man or non-binary employee sits outside the definition entirely, thereby leading to disharmony between an employer’s diversity commitment and global non-discrimination codes.

Building gender neutrality:

The assurance under Section 28, read with relevant judicial precedent, that the POSH Act operates in addition to, and not in derogation of other laws (and allows employers to discipline under its service rules independent of the POSH Act), provides the legal foundation for a parallel, contractually enforceable mechanism. As per judicial precedent, an employer’s service rules remain independently operative alongside the POSH Act. This implies that companies needn’t wait for Parliament to amend the POSH Act to formulate gender neutral policies. Employers can, therefore, adopt a broader, gender-neutral workplace harassment framework through their policies and service rules while continuing to preserve comparable statutory protections, procedures and remedies mandated by the POSH Act.

• A harmonised policy:  Employers may prefer to adopt a single master “Prevention of Workplace Harassment” policy that applies a common substantive standard of conduct across the workforce while preserving the statutory framework under the POSH Act. Complaints by an “aggrieved woman”, within the meaning of the Act, would continue to be dealt with by the Internal Committee constituted under Section 4, in accordance with the statutory timelines, procedure, remedies and appeal rights prescribed by the Act. The same policy can also extend comparable protections to men, non-binary employees and others whose complaints fall outside the POSH Act, with the authority to investigate and take disciplinary action in such cases deriving from the employer’s applicable contractual terms, policies and service rules. A carefully drafted harmonised policy can provide employees with a single, accessible framework without diluting the specific statutory protections available to women under the POSH Act.
• A common institutional mechanism: A harmonised policy does not require employers to establish an entirely separate committee for complaints falling outside the POSH Act. The same individuals serving on the Internal Committee may also be designated to examine complaints under the broader policy, provided the statutory constitution and functioning of the Internal Committee remain unaffected for POSH matters. When dealing with a complaint governed by the POSH Act, the Committee acts in its statutory capacity and exercises the powers conferred by the POSH Act. For a complaint falling outside its statutory scope, the same individuals will have to act as per the authority conferred upon them by their employer’s policy and service rules. The policy should identify this distinction clearly so that the complainant, respondent and Committee understand the contours within which the matter will be considered and the source from which the Committee’s authority, procedure and recommendations arise.
• Continuing the POSH procedural spine: The contractual mechanism can mirror, to the extent possible, the procedural protections that the Parliament built into the POSH Act as they represent the best available domestic template for fair, confidential, and time-bound handling of harassment allegations. This means defined limitation period comparable to the three months (extendable to six months) in Section 9, a right to interim measures comparable to the transfer or leave relief in Section 12, confidentiality obligations mirroring Section 16, a structured inquiry and written findings comparable to Section 13, and a documented right of review or appeal. This creates consistency in employee experience while retaining the legal distinctions that the statutory framework requires.
• Anchoring it as a contractual and disciplinary obligation: Since there is no statute to lean on, the gender-neutral policy’s force depends entirely on how it is embedded. Employers can consider incorporating it by reference into employment contracts and service rules, such that a finding of misconduct under the policy attracts the same disciplinary consequences as a POSH finding under Section 13. The employment contract and code of conduct should state expressly that sexual harassment against any employee, regardless of gender, constitutes gross misconduct, warranting termination or other disciplinary action, because the enforceability of that penalty rests entirely on employer’s policy and service rules and not on the POSH Act. The policy should be a part of the code of conduct that new joiners sign, referenced in offer letters/ employment contracts, and delivered with the same seriousness as the statutory POSH training required under Section 19.
• Handling identity questions: The policy should expressly state that transgender and non-binary employees, whose gender identities fall outside the binary, are protected under the contractual gender-neutral mechanism and entitled to the same substantive standard of protection. Leaving this to an Internal Committee to work out ad hoc, mid-inquiry, is precisely the kind of threshold dispute that exposes the employer to challenge.
• Limitations of a harmonised framework: A harmonised policy can replicate most procedural protections contractually, but it cannot expand the statutory jurisdiction or powers under the POSH Act. The Internal Committee’s civil-court powers under Section 11(3), including authority to summon persons and require the production of documents, remain confined to inquiries under the POSH Act and cannot be created by contract. Further, the right of appeal under Section 18 is available to any person aggrieved by the specified recommendation; however, it does not extend to complaints addressed by non-women employees under the gender-neutral policy. Such a policy may instead provide for an internal review or appeal mechanism. The policy may therefore supplement the statutory framework, but it cannot convert statutory rights to contractual rights or dilute mandatory protections under the Act.

The question underneath the compliance exercise:

The Act was built, deliberately, as a protective legislation for women, in response to the documented reality of gendered power asymmetry in Indian workplaces. However, the gender specific scope of the POSH Act should not be conflated with the broader standards of workplace conduct and protection that an employer may choose to establish. A harmonised policy should therefore preserve the statutory protections, procedures and remedies available under the POSH Act, while extending comparable protections to other employees.

Parliament’s silence on male, transgender, and non-binary employees does not prohibit employers from addressing the issue. For Indian employers, including those answerable to global parents, boards, and investors, adopting a harmonised policy would be a prudent and defensible approach before an actual complaint exposes the coverage gap.