Is a sexual harassment complaint valid under the POSH Act, 2013, if it's filed after the manager denied an increment citing poor performance?

Under the POSH Act, 2013, a complaint of sexual harassment can still be valid even if it arises after an adverse employment decision, such as the denial of an increment due to poor performance, provided that the complaint is related to circumstances outlined in Section 3(2) of the Act. To determine the validity of the complaint, it is crucial to examine whether the adverse decision or the environment was linked to sexual harassment, as described in the law.
 
Key points from Section 3(2) of the POSH Act, 2013:
1. Preferential or Detrimental Treatment:

• If the denial of an increment is perceived as being connected to an act of sexual harassment, such as the manager implicitly or explicitly threatening the employee with detrimental treatment in employment unless they complied with sexual demands, this could amount to sexual harassment under Section 3(2)(ii). The law covers both implicit and explicit threats to employment status or benefits.
• For example, if the manager had previously suggested that the employee would receive preferential treatment (e.g., an increment) in exchange for complying with inappropriate advances or behaviours, and then denied the increment due to the employee's refusal, this scenario could be a valid case of sexual harassment.

2. Hostile Work Environment:

• If the manager’s behaviour created a hostile, offensive, or intimidating work environment, and the denial of the increment is just one aspect of broader mistreatment, this too could amount to sexual harassment under Section 3(2)(iv).
• Even if the increment was denied based on performance, the overall atmosphere and treatment by the manager could be grounds for sexual harassment if it involved unwelcome sexual conduct that interfered with the employee’s ability to work or made the workplace unbearable.

 
3. Humiliating Treatment:

• If the manager's behaviour included sexual harassment that resulted in humiliating treatment, likely to affect the employee’s health or safety (such as emotional distress), the complaint would be valid under Section 3(2)(v).
• The denial of an increment, if accompanied by or following inappropriate sexual remarks or actions, could be seen as a continuation of such treatment.

 
Summary of the Complaint's Validity:

• If the employee claims the denial of the increment is connected to past or ongoing sexually inappropriate behaviour by the manager, this could fall under the scope of sexual harassment, particularly if there was an implied or explicit promise of preferential treatment for compliance or a threat of detrimental treatment for non-compliance with sexual advances.
• The timing of the complaint (i.e., after the increment was denied) does not invalidate it if the underlying cause involves the elements mentioned in Section 3(2), such as threats, hostile environments, or humiliating treatment related to sexual harassment.

Thus, even though the increment was denied due to poor performance, the complaint could still be valid if sexual harassment played a role in the decision-making or the work environment. The Internal Committee (IC) established under the POSH Act would need to thoroughly investigate the facts, including whether sexual harassment influenced the denial of the increment or created an intimidating work environment that may have impacted the employee’s performance.

Disclaimer: This document is for educational purposes only and does not constitute legal advice.

​Shekhar Ganagaluru
MSW, LLB, Dip. T&D
HR & IR Specialist | Published Author | Storyteller | Mentor |
Trainer | Community Outreach Coordinator |
​Workplace Safety & Motivation Strategist

Prevention of sexual harassment
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