Addressing the Grey Areas in Sexual Harassment Definitions

When a male colleague publicly mocks a woman’s appearance at work, or when a manager assigns only menial tasks to women while fast-tracking male peers – is that sexual harassment? Under India’s current law, the answer is likely no. And that is exactly where the problem lies. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – widely known as the POSH Act – is a landmark piece of legislation. But its definition of sexual harassment carries some significant blind spots that courts, legal scholars, and workplace practitioners are increasingly grappling with.

What the POSH Act actually defines
The “unwelcome” problem: who decides?
Sexual acts only: the law’s biggest blind spot
What Indian courts have said
Non-sexual, gender-based harassment: what the law misses
The exclusion of same-sex harassment and non-women complainants
Power, hierarchy, and the limits of a complaint-based model
What a more inclusive understanding would look like

What the POSH Act actually defines

Section 2(n) of the POSH Act defines sexual harassment as any one or more of the following unwelcome acts or behaviour – whether directly or by implication: physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; or any other unwelcome physical, verbal, or non-verbal conduct of a sexual nature. Section 3(2) adds that certain circumstances – such as implied promises of preferential treatment, threats to employment, or the creation of a hostile work environment – can also amount to sexual harassment, but only when connected to conduct of a sexual nature.

On the surface, this seems comprehensive. In practice, however, two fundamental problems emerge: the difficulty of proving that behaviour was “unwelcome”, and the law’s exclusive focus on sexual conduct, leaving out a wide range of gender-based harassment that has nothing to do with sex.

The “unwelcome” problem: who decides?

The word “unwelcome” sits at the heart of every POSH complaint – and it is inherently subjective. What one person experiences as threatening or humiliating, another might claim was harmless or even friendly. This creates a fundamental evidentiary challenge for complainants.

The Vishaka Guidelines of 1997, which preceded the POSH Act, recognised that unwelcome sexually determined behaviour could be humiliating and constitute a health and safety problem. The Apparel Export Promotion Council v. A.K. Chopra (1999) judgment further expanded this by clarifying that physical contact is not always essential – the “unwelcome” nature of an act is sufficient. But the subjective standard still places a heavy burden on the person raising the complaint. She must demonstrate not only that the behaviour occurred, but that it was unwelcome to her – and that her experience was credible.

In practice, this opens the door to a defence that the accused simply didn’t realise the conduct was unwanted. Power dynamics make this worse: a junior employee may not have explicitly rejected a senior’s advances out of fear of professional repercussions, and that silence can later be construed as acceptance. The standard also varies depending on who is adjudicating – Internal Complaints Committees (ICCs) are made up of individuals with varying levels of sensitivity and training, which means interpretations of “unwelcome” are inconsistent across organisations.

Perhaps the most significant limitation of the POSH Act is that its entire framework is tied to conduct of a sexual nature. The Act does not address broader patterns of sex-based harassment – sexist remarks, gendered insults, deliberate exclusion of women from opportunities, or the reinforcement of gender stereotypes in the workplace.

A 2025 decision of the Bombay High Court in Vinod Narayan Kachave v. The Presiding Officer (ICC) and Anr illustrates this gap starkly. In that case, a male petitioner had publicly compared a female colleague’s hair to a JCB machine and sang a song about it. The Court found it difficult to read a sexual intent into the comment and declined to categorise the incident as sexual harassment under the Act. Yet the remark was plainly demeaning – it singled out a woman’s physical appearance in a professional setting, reinforced gendered scrutiny, and undermined her dignity. The law, however, had no room for it.

As legal scholar Jwalika Balaji (Vidhi Centre for Legal Policy) notes, the POSH Act is rooted in a traditional understanding of harassment as conduct motivated by unwelcome sexual desire, while feminist scholars like Vicki Schultz have argued for decades that harassment is more accurately understood as a mechanism for maintaining male dominance and reinforcing gender hierarchies – dynamics that often have nothing to do with sex at all.

What Indian courts have said

Indian courts have reinforced this exclusion. The Kerala High Court in Dr Prasad Pannian v. Central University of Kerala held that for an act to be redressed under the POSH Act, it must be directly or by implication connected to an unwelcome sexual advance or sexual undertone. Gender-based discrimination that lacks this sexual dimension falls outside the Act’s reach. The court in that case distinguished the ruling from the Supreme Court’s earlier decision in Nisha Priya Bhatia v. Union of India, which had held that the law also covers situations where a woman employee faces prejudice, discriminatory attitudes, and daily humiliation – even without an explicit sexual act. This judicial inconsistency leaves the law uncertain and the protection patchy.

Non-sexual, gender-based harassment: what the law misses

Consider some common workplace realities: a woman is routinely interrupted in meetings while male colleagues are not; she is assigned administrative or “soft” tasks despite having the same qualifications as male peers; she receives comments about her appearance that would never be directed at a man; or she is excluded from after-work networking because it is assumed she will be uncomfortable. None of these behaviours are sexual in nature. All of them are rooted in gender. And under the POSH Act, none of them are actionable unless they are tied to conduct of a sexual nature.

This is a significant gap, especially when measured against comparative legislation. The US Civil Rights Act of 1964 (Title VII) prohibits sexual harassment as a form of sex discrimination and extends protection to all forms of workplace hostility and intimidation based on an individual’s sex – not just sexual advances. The UK Equality Act 2010 similarly provides protection against discrimination on grounds of sex more broadly. Indian law, by contrast, limits its reach to acts of a sexual nature, leaving systematic sexism largely unaddressed through the POSH mechanism.

The exclusion of same-sex harassment and non-women complainants

The POSH Act’s definition also struggles when applied to same-sex harassment or to harassment faced by men and LGBTQ+ individuals. The language of the Act applies only to sexual harassment experienced by women – the complainant must be a woman, and the respondent is presumed to be a man. This means a woman harassed by another woman, or a man harassed by anyone, has no statutory remedy under the POSH Act.

A recurring critique of the POSH Act is that it is silent about protection for members of the workforce other than women. Men and members of the LGBTQ+ community who face workplace sexual harassment must seek recourse under other laws – primarily the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code – but these are general criminal provisions that are not tailored to the workplace context and offer no equivalent institutional mechanism like the ICC. The Supreme Court itself, in a 2023 order, declined to amend its own POSH Regulations to replace “aggrieved woman” with “aggrieved persons”, reasoning that doing so would shift focus away from the primary objective of protecting women. It did, however, invite the Gender Sensitisation Committee to formulate separate regulations for LGBTQ+ individuals.

The absence of gender-neutral provisions raises serious concerns about the rights of men and non-binary individuals who may face harassment. Cultural stigma, fear of ridicule, and the absence of a formal legal channel all compound the problem. Many organisations have responded by drafting gender-neutral internal POSH policies – over 90% of employer policies are reportedly gender-neutral in practice – but this is a voluntary measure, not a statutory right.

Power, hierarchy, and the limits of a complaint-based model

Beyond the definitional issues, the POSH Act’s architecture is fundamentally complaint-driven. A survivor must come forward, file a complaint, and withstand an inquiry process. Research shows that the implementation of POSH provisions is heavily mediated by socio-economic indicators – caste, class, gender, and one’s position in the organisational hierarchy. When the accused is in a position of power, initiating legal action becomes extremely difficult. High-profile cases, such as the allegations against former Chief Justice Ranjan Gogoi, exposed how structural power can render formal redressal mechanisms ineffective even when the law is technically applicable.

This points to a limitation that goes beyond definition. Even where harassment is clearly sexual and the law unambiguously applies, survivors – particularly those in lower-income, unorganised sector employment – face enormous barriers to accessing justice. Many incidents continue to go unreported due to lack of awareness or a deficit of trust in the complaints mechanism.

What a more inclusive understanding would look like

Scholars and legal practitioners have increasingly called for the POSH Act to be read more broadly, or amended to capture sex-based harassment beyond acts of a sexual nature. This would mean recognising that harassment rooted in gender stereotypes, sexist behaviour, gendered exclusion, and power-driven demeaning conduct – even when not sexual – constitutes a violation of a woman’s right to equality and dignity at work. It would also mean extending the statutory framework to all genders, not just women.

The POSH Act, though it affirms dignity and equality in its preamble, confines its operative provisions to sexual conduct – creating a gap between its stated values and its actual reach. India’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which it ratified in 1993, extend to prohibiting all forms of gender-based discrimination in the workplace – a standard the current POSH framework does not fully meet.

Closing this gap requires both legislative reform and judicial creativity: amendments that extend protection to non-sexual gender-based conduct, gender-neutral language that covers all individuals, and institutions equipped to recognise systemic patterns of harassment rather than treating each incident in isolation.

What do you think? If a colleague repeatedly makes demeaning remarks about a woman’s appearance without any sexual undertone, should that fall outside the definition of harassment entirely – or does the law need to catch up with the realities of how gender-based harm actually operates in the workplace? And given that the POSH Act protects only women, do men and LGBTQ+ individuals deserve an equally specific statutory mechanism of their own, or is a broader gender-neutral amendment the better path forward?

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PDF 📄

Table of Contents

What the POSH Act actually defines 🔗

The “unwelcome” problem: who decides? 🔗

Sexual acts only: the law’s biggest blind spot 🔗

What Indian courts have said 🔗

Non-sexual, gender-based harassment: what the law misses 🔗

The exclusion of same-sex harassment and non-women complainants 🔗

Power, hierarchy, and the limits of a complaint-based model 🔗

What a more inclusive understanding would look like 🔗

References

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