This article is written by Bhumitra Dubey and co-author Ananya Bhargava from Dharmashastra National Law University, Jabalpur. 

Introduction

The current era of social distancing has unwittingly sparked off a giant global experiment of mass remote working. This restructured working policy might have changed the working pattern of the employees but the challenges have still been the same. One of the major challenges is Sexual harassment at the workplace, which continues to be a problem for working women. According to a joint survey by Southeast Asia, Freedom of Expression Network (SafeNet), and Never Okay Project, it was found that 86 of 315 respondents claimed they were sexually harassed while working from home. These figures indicate the relevance of protecting women from such abuses even during virtual working. At present, the sexual harassment at the workplace is primarily governed by The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”).

So, this article focuses on the issue that POSH Act successfully governing the Sexual Harassment in remote working or there is a need for new legislation to protect those women’s who work from home. It is divided into 4 parts. Part I deals with Brief background of the POSH Act. Part II deals with applicability and detailed analysis of POSH Act concerning Remote Working. Part III deals with the Challenges and Recommendations that would emerge due to Remote Working. Lastly, Part IV provides the conclusion of the article.

Brief background of POSH Act

Sexual Harassment created not only an insecure and hostile environment but also affected the woman’s performance at work. It also affected their social and economic growth and put them through a lot of physical, emotional and psychological stress. So, the Supreme Court of India, in 1997, in the Vishaka Judgment, laid down the Vishaka Guidelines. For the first time in the guidelines, the apex court acknowledged sexual harassment at the workplace as a human rights violation. The Supreme Court relied on the Convention on the Elimination of All Forms Discrimination Against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both signed and ratified. After 16 years of Vishaka, the Ministry of Women and Child Development enacted and passed Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013. This Act stated the exact meaning of Sexual Harassment, employee, workplace, the role and responsibility of the Employer, the internal Complaints Committee, complaint processes and procedures, penalties and redressal, actions for preventing such cases by holding training and workshops. The act made it mandatory for all organizations with 10 or more employees to set up an Internal Complaints Committee to deal with the cases of sexual harassment. The main aim of this legislation is to protect women at workplaces. It ensures that sexual harassment of working women in the workplace is prevented and the person guilty of such an act is dealt with sternly.

Subsequently, the main focus of the article on the need to extend the protection of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 to digital workspaces by examining the scope and ambit of the provisions of POSH Act in the light of relevant judicial pronouncements, thereby providing similar protection to the victims as it exists in physical workplaces.

Whether remote working set-up comes within the ambit of the POSH Act or not 

The best way to answer this question could be, by applying the provisions of the POSH Act on all the challenges faced by women in Remote Working. In between answering the above question, there are 3 bullet points we need to look at:

1. Does the act recognise the forms of non-physical harassment that occur while working from home? 
2. Whether the remote working/working from home set-up comes under the definition of ‘workplace’ defined within the POSH act or not? 
3. Whether redressal mechanism includes virtual working set up?

Forms of non-physical sexual harassment/ Virtual

The answer to this can be found under Section 2 and 3 of the Sexual Harassment of Women at Workplace Act, 2013, which defines what constitutes sexual harassment. The subclause (ii), (iii), (iv), and (v) of Section 2(n) deals with the unwelcome acts or behaviour that can occur while working in remote such as “(1) demand or request sexual favours (2) making sexually coloured remarks (3) showing pornography (4) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.”

Section 3, has further widened the definition of sexual harassment by providing that any of the following circumstances, related to sexual harassment, may also amount to Sexual Harassment such as: implied or explicit “(1) promise of preferential treatment in victim’s employment (2) threat of detrimental treatment in victim’s employment (3) threat about the present or future employment status (4) interference with work or creating an intimidating or offensive or hostile work environment (5) humiliating treatment likely to affect victim’s health or safety.”

The definition provided in section 2 and 3 is very wide, as it provides for direct or implied sexual conduct, constitutes sexual harassment from both unorganized and organized sector. In the case of Dr Punita K. Sodhi v. Union of India & Ors. W.P. the court also acknowledged the subjective nature of sexual harassment and stated- “Conduct that many men consider unobjectionable may offend many women. Men tend to view some forms of sexual harassment as harmless social interactions to which only overly-sensitive women would object”. 

Hence, this broad definition covers some of the pointers which women face while working from home such as- Sending personal and inappropriate messages, Sexual jokes/forwards/videos/drawings/pics, Sexual descriptions over the telephone or video conferencing, Continuous idle chatter over the phone which is sexual, Unwelcome remarks while communicating, Digital stalking (stalking in all forms of social media), Lewd gossips on colleagues about sexual affairs/sexual orientation/preferences/virginity, Vulgar humour or language while communicating, Relentless proposals for physical intimacy, Encroaching personal space by asking inappropriate questions, Passing Sexual comments on weight, body shape, size, or figure. Therefore, concerning the question due raised, it can be concluded that the act itself provides the instances of sexual harassment that one can encounter online while working from home.

Extension of term ‘workplace’

The answer can be found under Section 2(o) and various precedents where the definition of the workplace has been extended to the broader sense.

According to Section 2(o) of the act, “workplace” under sub-clause (v) includes “any place visited by the employee arising out of or during employment.” The term “arising out of ” has been subjected to judicial interpretation from the very beginning and most of the time it has been seen that the court has tried to give wide meaning to it. Also, the phrase “out of or during employment” has been interpreted by the courts from time to time by applying the theory of Notional Extension. Generally, in employment law, the extension has been for governing compensation to be awarded to employees or workmen in case they sustain injuries during their employment. As in the case of Union of India v. Mrs Noor Jahan, a railway gagman was ordered by his employer to go to another place for cleaning and on the way from one place to another an accident happened. Justice Shukla observed that the accident had occurred in the duty hour and when he was going to do his duty on behalf of his employer.  So, the court concluded that the accident has occurred in the course of worker employment. The same gets extended to remote places provided that the employee is working under the employer’s order. Also, in the case of Weaver v. Tredegar Iron Coal Co., Lord Atkin said that “the course of employment cannot be limited to the time or place of a specific form in which the workmen are employed to do so. There is some reasonable extension in both time and space.” This gives us an overview of how courts have extended the term ‘workplace’ and gave compensation to the workers. Thus, applying the similar interpretation in the above-discussed section 2 (o) (v), it can be concluded that the term “workplace” can be extended to remote working to provide compensation to the victims of sexual harassment.

Subsequently, according to Section 2(o) sub-clause (vi), includes the phrase “a dwelling place or a house.” Although the initial meaning derived from this phrase refers to domestic workers and house helpers, yet the intention of the act emphasizes that it should logically apply to everybody who is working from their own home, leased/rented home, a company leased home or any other form of accommodation. Hence, every place of work becomes the workplace. 

In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, Delhi High Court held that “the aim and objective of the judgment of the Supreme Court in Vishaka & Ors. v. State of Rajasthan was that a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression ‘office’. To extend the protection of women at workplaces it may reasonably be assumed that the scope of ‘workplace’ shall usually be construed liberally, not in a restrictive manner.” Court also stated that “It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and the advancement of information technology.  A person can interact or do a business conference with another person while sitting in some other country by way of video-conferencing. It has also become a trend that the office is being run by CEOs from their residence. In a case like this, if such an officer indulges in an act of sexual harassment with an employee, say, his private secretary, it would not be open for him to say that he had not committed the act at ‘workplace’ but at his ‘residence’ and get away with the same.”

Also, in the case of Ayesha Khatun v. The State of West Bengal & others,  Calcutta High Court held that 

“Even though workplace had not been defined either in the Vishaka guidelines or in the Vishaka judgment, a logical meaning should be given to the expression ‘workplace’ so that the purpose for which those guidelines have been framed, is not made unworkable. The workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honour and dignity.” Hence, it can be concluded that the courts have given a wide interpretation of what would constitute a workplace, whenever the need arose to extend its ambit. They have broadened the concept of “workplace” as an “extended workplace” in the interest of the protection of women at their workplace.

Redressal mechanism for virtual working

Filing complaint

Section 9 of the Act specifies the written procedure to file a complaint about sexual harassment faced by aggrieved women. During this course of online working, women also have the recourse of filing complaints online. The government of India launched a single-window complaint portal called “she-BOX”. Under this portal, any woman irrespective of her working status can file the complaint of harassment, and the complaint will directly be transferred to the concerned authority having jurisdiction to take action. This portal is an effective way to file written complaints if any women face harassment in the course of working from home.

Interim relief and compensation

At the same time, section 12 and 13 of the Act which provide interim relief and compensation to the victim can also be extended to remote working. The act under section 12 provides a brief description of the actions that can be taken or should be taken in case of pendency in the inquiry procedure. As the inquiry process in the act suggests that it usually takes 3 to 6 months for the entire matter to resolve. During this time, the aggrieved women might have to work under or with the respondent, which can slump the spirit of the act itself. To avoid such a hostile working environment, IC is empowered to provide interim relief to the victim, if a request is made in writing. The first part of the section states that 3 following interim relief that can be provided- 

(a) transfer the aggrieved woman or the respondent to any other workplace; or

(b) grant leave to the aggrieved woman up to three months; or

(c) grant such other relief to the aggrieved woman may be prescribed.

Above mentioned relief could be provided in remote working or working from home as well. Women working from home could request the IC committee via mail to provide any of the above relief including transfer, leave. Generally, in the online working of Organisations, different teams work under different project managers. These teams work separately within the contact with their teammates only. The IC can transfer the respondent or the aggrieved women to a different team to ensure minimal or no contact between the victim and respondent. In the case of educational institutions, the committee can change the mentorship of the aggrieved so that the respondent is no longer supervising or mentoring her academic activities. 

Also, Part (C) of the section has extended the relief to any other order which provides relief to aggrieved women. This part can be extended for the adoption of any way possible during the remote working to restrain the respondent from contacting the aggrieved.

Consequently, Section 13 sub-clause (3) of the act prescribes compensation of the victim if the IC or LC concludes that the allegation against the respondent has been proved. The compensation as provided in the section can also be provided during the working from home. As the section mentions about deduction from salary or wages of the respondent by the employer to provide compensation, within the section it also extends to direct the respondent to pay the sum to the aggrieved if the employer could not deduct the appropriate amount. This mechanism can be facilitated by online medium as well. Employers while transferring the salary to the accounts of the employees can deduct a part of the sum from the salary of the accused to compensate the aggrieved women. He may also be directly accused to transfer the compensation via online medium. 

Applying the various sections of the act along with its respective interpretations it is evident how the provisions of the POSH Act through its broad ambit cover remote working and protect women, who work through online medium faces any kind of harassment virtually.

Challenges and recommendations

The paradigmatic shift in the working of the organizations to work from the home model has its share of problems, one of them being the possibility of sexual abuses. With the increase in virtual working, there is a proximity between all the employees of an organization. This brings up the online communication channel be it for formal or informal purposes.  With the working advances, the workforce has found more efficient ways to inflict harm to women, by sending sexually discriminatory views, sexual advances, and other inappropriate comments via e-mails, video calls, and social media believing it to be harmless. That might not get highlighted in these online communication channels, as managers are not monitoring every message of the groups so formed. 

During this pandemic, many women are experiencing this new kind of harassment. As their boss asked about their personal lives as what they are wearing, after-hours and unwelcome calls in the middle of the night, or pressure to attend after-hours Zoom parties on a full-body visual. which makes them uncomfortable. Generally, women remain unsure about what counts as harassment in virtual working, and whether they can raise their voice or not. This is the reason often aggrieved women internalize their anger and fright, which may result in physical illness, decreased work productivity, and depression.  

Redrafting WFH policy/Guidelines/Handbook

So, to avoid these abuses, The POSH policy should be updated to ensure that any passing remark or advance of sexual nature on an electronic medium is still sexual harassment even in the WFH situation. 

In 2015, after the POSH act came into force, the Ministry of Women and Child Development, released HANDBOOK on Sexual Harassment of Women at Workplace for Employers/ Institutions/Organisations/Internal Complaints Committee/Local Complaints Committee. Subsequently, a separate WFH/Remote Working Conduct Policy or handbook should also be drafted with clear terms “work from home” as indicative of a formal workplace in which dos and don’ts for employees are mentioned, like what can be shared on social media, decorum and proper timing for online meetings and calls, language, dress code, camera use, and what constitutes a workday.  

Training and Awareness

The spirit of the IC committee recruited by the organization is not only the redressal of the cases of sexual harassment but also, prevention. In the light of the same mandatory POSH training should include not just topics like dressing appropriately and keeping the conversation limited to work, but should also ensure that employees understand what is appropriate and what is not in the context of a video call. They must not insist that female colleagues log on to one-on-one video calls, as they can opt for the option of “audio-only” mode. Employees must not assume that because they are working late hours, they can send chat messages to colleagues at those hours. And all the office work should not be discussed in personal chats but official groups. As more personal attention helps them absorb the anti-harassment message. Organizations and institutions must provide employees with regular chances to offer feedback and ask questions related to the working environment. Employees by providing feedback through google forms can raise their voice regarding what problem they face. Through these recommendations, organizations and institutions can solve online problems with online solutions. 

Working from home has also developed the trend of online meetings and digital communication. Related to online meetings there have been instances where the women could not present exact pieces of evidence concerning the incident that happened. As the sudden shift in the working from home policy, most of the women are not aware of sexual harassment laws for virtual working and what steps should be taken if they face harassment. So, to deal with such problems company should recruit new ICC staff and interns who are now getting on-boarded virtually, conduct training, awareness sessions, webinars, short videos for employees that explain and provide examples of the possible steps to be taken, like to collect pieces of evidence for easy inquiry process by download email, or document the offensive video, taking screenshots of relevant messages and conversations when face harassment. To show employees where to draw the line between work and private life and establish their liability as employers if they cross that line.

Reforms in Complaint committee

Further, the sexual harassment internal committee, comprising of those members who are employees at the same workplace would defeat the entire purpose of having such a committee to check cases of sexual harassment since the employer will be in a position to put some sort of pressure on the members. So, setting up an employment tribunal recommended by J.S. Verma Committee report, which receives and adjudicate all complaints of sexual harassment, faced by women in organized or unorganized sector i.e. office and online working, instead of the Internal Complaints Committee, would be more productive. It also ensures speedy disposal of complaints, as the tribunal should not function as a civil court but may choose its procedure to deal with each complaint.

Conclusion

Providing safe workspace to employees is a legal right, while sexual harassment constitutes a gross violation of the same. So, employers and organizations have the key responsibility of eradicating sexual harassment in all forms within their workplace. The POSH Act is successful in providing a safe and secure environment to women in physical as well as virtual workplace. Provided that the recommendations mentioned above if implemented then it may result in better implementation of this Act which can go a long way in protecting the rights of women at the workplace(s). 

References

1. The Sexual Harassment of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013, available at http://legislative.gov.in/sites/default/files/A2013-14.pdf.
2. Namrata Singh, Mumbai: Sexual harassment goes online complaints pour in, available at
   https://timesofindia.indiatimes.com/city/mumbai/sexual-harassment-goes-online-plaints-pour-in/articleshow/76114455.cms.
3. Jeevan Ballav Panda & Shalini Sati Prasad, The dynamic workplace in a work from home Era: Operation of the Sexual Harassment of Women at Workplace Act 2013, available at https://www.barandbench.com/columns/the-dynamic-workplace-in-a-work-from-home-era-operation-of-the-sexual-harassment-of-women-at-workplace-act-2013.
4. Alyssa George, The Blind Spots of Law and Culture: How the Workplace Paradigm of Sexual Harassment Marginalizes Sexual Harassment in the Home,17 Geo. J. Gender & L. 645 (2016).
5. Home is No Haven: An Analysis of Sexual Harassment in Housing, 1061 Wis. L. Rev. (1987).
6. Nishith Desai, India’s Law on Prevention of Sexual Harassment at the Workplace, available at http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf.
7. Sohini Sen & Rashmi Menon, What you should know about sexual harassment in the workplace, available at, https://www.livemint.com/Leisure/5I2kUYC42XHl0OC2qtDl8J/What-you-should-know-about-sexual-harassment-in-the-workplac.html.
8. What Sexual Harassment Looks Like When You Work from Home, available at https://www.eandblaw.com/employment-discrimination-blog/2020/03/26/what-sexual-harassment-looks-like-when-you-work-from-home/.
9. Divya Nair, Are you protected by anti-Sexual Harassment laws when you work from home, available at https://sabrangindia.in/article/are-you-protected-anti-sexual-harassment-laws-when-you-work-home
10. Jehosh Paul, Does the POSH Act Apply When Working from Home During Lockdown, available at https://feminisminindia.com/2020/05/27/posh-act-apply-working-from-home-lockdown/.
11. Robyn Swirling, Sexual Harassment Still Happens When You Work from Home During a Pandemic, available at https://medium.com/swlh/sexual-harassment-still-happens-when-you-work-from-home-during-a-pandemic-3bba3e230399.
12. Nishith Desai, India’s new labour law – prevention of sexual harassment at the workplace, available at https://www.lexology.com/library/detail.aspx?g=cb74f2ac-f7c5-44f8-b607-aea2f735cef4.
13. Smita Paliwal, India: Notional Extension of Workplace vis-à-vis POSH Act 2013, available at https:/www.mondaq.com/india/employee-benefits-compensation/816388/notional-extension-of-workplace-vis-vis-posh-act-2013?signup=true.

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