Is Disclosing POSH Inquiries in Background Verification Legal? A Guide for HR and Managers

Many companies unwittingly expose themselves to defamation suits by reporting a former employee as "guilty" of sexual harassment in a Background Verification (BGV) check when the inquiry is either pending, inconclusive, or the person was merely an "accused" (Respondent) without a final verdict.

Confidentiality is a critical aspect for an effective inquiry and redressal mechanism under the PoSH Act. The primary legal framework governing non-disclosure is Section 16 of the Act.

Section 16 establishes an absolute prohibition on the publication or making known of certain information, specifically:

1. The contents of the complaint made under Section 9.

2. The identity and addresses of the aggrieved woman, respondent (accused), and witnesses.

3. Any information relating to conciliation and inquiry proceedings.

4. The recommendations of the Internal Committee (IC) or the Local Committee (LC).

5. The action taken by the employer or the District Officer under the provisions of the Act.

This prohibition stands "Notwithstanding anything contained in the Right to Information Act, 2005". Therefore, disclosing any of these elements—which would naturally form the core of a background verification query regarding past PoSH incidents—is strictly prohibited under the law.

Given the legal mandate under Section 16, disclosing the details of a PoSH inquiry, including the identity of the respondent, the nature of the allegations, or the specific findings, during a routine background verification process is illegal and constitutes a direct contravention of the PoSH Act.

The law aims to protect the privacy of all parties involved. Victims often hesitate to come forward due to fear of compromising their privacy, resulting in shame, humiliation, and career setbacks. While the PoSH Act primarily protects the victim's identity from exposure, judicial guidelines have reinforced the anonymity of both parties in court proceedings.

The prohibition on publishing names, addresses, or other personally identifiable information (PII) of the parties is absolute.

Judicial Emphasis on Anonymity

The strict requirement for confidentiality has been reinforced through judicial guidelines. The Bombay High Court, in a 2021 order, recognised the imperative need to protect the identities of parties from disclosure in PoSH proceedings.

The judicial guidelines, intended as a working protocol for orders, hearings, and case file management, include several key measures relevant to handling sensitive PoSH data:

1. Anonymisation: Parties should be referred to anonymously (e.g., as Plaintiff or Defendant) in the body of orders and filings, not by their names.

   
   

2. Protection of PII: Personally identifiable information (PII) such as email IDs, mobile numbers, addresses, and the names/addresses of witnesses should not be mentioned in the body of any order.

   
   

3. Sealed Records: The entire record of the case is to be kept sealed and should not be given to any person without a specific court order. Fresh filings must also be sealed.

   
   

4. Non-Disclosure Agreements: Witnesses are required to sign a statement of non-disclosure and confidentiality along with the usual oath.

While these guidelines were later confined to the specific case from which they arose, they underscore the extreme importance placed on safeguarding sensitive information related to sexual harassment complaints by ensuring that no unrelated third party can access sensitive information without permission.

Guidance for HR and Managers

HR departments and managers have specific duties under the PoSH Act, including treating sexual harassment as a misconduct under service rules and initiating action. However, these actions must be balanced with the absolute duty of confidentiality imposed by Section 16.

1. Internal Policy Development: Employers can use judicial guidelines as a guiding principle to incorporate specific provisions regarding maintaining the anonymity of parties into their internal policies. This may include encrypting party statements and evidence.

2. Handling Inquiries from Subsequent Employers: When responding to background verification requests, HR must meticulously filter information to ensure compliance with Section 16. While an employer must initiate action for sexual harassment as misconduct under service rules, the action taken by the employer (e.g., termination, warning) is considered part of the inquiry proceedings and is explicitly listed among the items that "shall not be published, communicated or made known to the public, press and media in any manner".

Sharing details of the misconduct or the resulting punishment with a future employer via a background check risks contravening Section 16, particularly if the disclosure reveals the identity of the respondent (accused) or the nature of the complaint.

3. Penalties for Breach: Any person entrusted with the duty to handle or deal with the complaint, inquiry, recommendations, or action taken under the Act, who contravenes the provisions of Section 16, shall be liable for a penalty in accordance with the applicable service rules or as otherwise prescribed. Furthermore, failure to comply with confidentiality requirements, as per judicial guidelines, may be considered contempt of court.

4. Limited Permissible Disclosure: The only exception to the blanket prohibition allows for the dissemination of information regarding justice secured to any victim of sexual harassment under the Act, on the strict condition that it does not disclose the name, address, identity, or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.

Conclusion

For HR and management, the PoSH Act provides clear statutory guidance: disclosing information related to PoSH inquiries—including the identities of the involved parties, the substance of the complaint, or the specific disciplinary action taken—to external third parties, such as during background verification, is not legal. The prohibition is absolute and failure to comply exposes the individual and the organisation to penalties and potential charges of contempt.

Adherence to confidentiality is paramount, serving as the cornerstone of trust that enables victims to utilise the redressal mechanism provided by law. When dealing with PoSH records, HR should act as a vault, keeping sensitive information sealed and accessible only when strictly necessary and legally compliant.