Male HR Manager Using Women's Restroom: Does This Violate POSH Guidelines? How Should We Respond?

Hi, A man has the practice of using the ladies' restroom even though there are separate restrooms for women and men employees. The person with this habit is from the HR department and holds the position of General Manager of HR. A female employee from the same HR department discovered this and filed a complaint with management. Does this fall under POSH? How should we proceed with this situation? Your suggestions are appreciated.

Thanks,
Abi

Dear member,

Oh my God! I never thought that this kind of post would come up on this Citehr!

We don't know why the accused person of the stature of GM (HR) has been doing this. He could be a pervert, or he may have developed desires to identify himself with the female gender. Though a male, mentally he could be considering himself a female.

Whatever the cause of his actions may be, his behavior is noxious. I can imagine how embarrassed the women folk could be when they found a male using their washroom!

The case need not be handled under POSH. The company can check their standing orders and find out whether "indecent behavior while on duty at the place of work" has been defined as misconduct and take action.

Other learned members can give their valid opinions.

Thanks,

Dinesh Divekar

I support Mr. Dinesh's remark. Also, we are unsure whether this man is suffering from a mental problem or intentionally acting this way, but this behavior should not be tolerated under any circumstances. He should be given a notice and warning for misconduct as per your company policy first.

You mentioned that a complaint has already been filed with management. Can you please provide an update on whether any action has been taken by management or not?

If management has not taken any action, this could lead to a serious situation among employees and may also cause embarrassment for the management. This type of behavior by a male staff member makes female staff feel insecure at the workplace and is very disturbing.

If he is found repeating such behavior even after being warned, you should take action under the Prevention of Sexual Harassment (PoSH) guidelines.

If this man has been repeatedly doing this, it should be considered serious misconduct. There is misconduct in not following the instructions or policies. The policy or instruction is that men should use toilets meant for them only, and any deviation should be viewed as a violation of policies. Based on this deviation and negligence, the company can initiate disciplinary action against the person.

Now, if the women employees have complained that they can't go to the washroom for fear that he will be there, then it falls under the scope of the PoSH Act as well.

Before taking any next step, let someone talk to this man to understand what is really happening with him. Is he doing this repeatedly on a regular basis or rarely due to emergencies? This is a sensitive issue involving very senior management. You need to understand the matter thoroughly before deciding on the next step. I'm also puzzled; there may be some behavioral issues in him, like 'split personality disorder'.

Understanding Sexual Harassment Under the Workplace Act

Under the Sexual Harassment of Women at Workplace Act, 2013, the following amounts to sexual harassment:

- Physical contact of a sexual nature: This includes unwanted touching, groping, or any other physical act of a sexual nature.
- Making sexually colored remarks: This includes offensive jokes, comments, or innuendos of a sexual nature.
- Showing pornographic or sexually suggestive material: This includes displaying or distributing offensive images or videos.
- Demanding or requesting sexual favors: This includes asking for sexual favors in exchange for employment or promotion.
- Any other unwelcome act of a sexual nature: This includes any other behavior of a sexual nature that can create a hostile work environment.

The last point could extend to cover the actions of the GM. It is indeed contributing to a hostile work environment. Women employees could also claim that this was intended to 'outrage the modesty of women' or an attempt at sexual assault and rape.

Legal Provisions Under BNS

Under BNS (which replaces IPC):
- Sec. 74: Assault or use of criminal force to a woman with intent to outrage her modesty (IPC 354).
- Sec. 75: Sexual harassment (IPC 354A).
- Sec. 76: Assault or use of criminal force to a woman with intent to disrobe (similar to IPC 354B).
- Sec. 77: Voyeurism (IPC 354C).
- Sec. 78: Stalking (IPC 354D).
- Sec. 79: Word, gesture, or act intended to insult the modesty of a woman.

With all these requirements (and I think Sec 75, 77, 79 do apply directly), it would be a good idea for this to be taken up by the ICC under POSH rather than risk the matter going to the District Committee or police. In both cases, company management, HR, and the POSH ICC committee will face action from the government and police.

Action Steps for HR and ICC

The ICC can go to the root of the problem, give the GM a chance to explain the reason, and provide counseling if required or force termination of his employment if it is considered without justification.

It would definitely be a good idea for HR to issue a warning letter and a show cause notice.

Dear Abi,

The conduct of the person is unusual and falls under the category of misconduct. The conduct can be addressed under POSH directly, as there is already an existing complaint. The matter and incident should be brought to the attention of the establishment head for appropriate action in writing. The victims or the targeted members should meet with the management head and can avoid immediate termination on the grounds mentioned above, as the individual holds the position of Manager.

Hi Abi,

I wanted to share my experience regarding a General Manager (Unit Head) at a well-reputed company who has been using the female washroom, even though a separate male washroom is available. He has even placed a sticker on the female washroom to mark it as his own. A female HR executive had to walk to another complex, where the laboratory is located, to use the washroom. This behavior clearly reflects his egoistic attitude, as he wanted to set himself apart from the other employees and abuse his power.

A complaint was raised by the HR head, which led to him using the common male washroom for a while. However, after two months, when the situation seemed to settle down with the support of the Executive Director and the exit of the HR Head, he resumed using the female washroom again. Since this unit is located far from the corporate office, no employee feels comfortable raising concerns, as they don't trust the top management to take appropriate action.

I wanted to share this experience, as this GM's behavior appears to reflect either a severe ego issue or some underlying mental problem.