SEXUAL HARASSMENT IN PANDEMIC STYLE WORKING

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As the nations around the world grapple with the global pandemic COVID-19 by imposing lockdown, the dynamics of social security are changing. In India, the pandemic shows no signs of ease, and hence; the organizations are planning to extend the work-from-home for their employees to ensure timely services and connectivity across cross-regional offices. This pandemic-style working, also known as “work-from-home” has brought home, among other things, the menace of virtual sexual harassment. Sexual harassment occurs in all occupations and industries, and organizational culture is the key to understanding how and why it occurs in some places and not in others. In the eyes of law, it is considered a violation of a woman’s fundamental human right to live with dignity and equality guaranteed under Article 14, 15, 19 & 21 of The Constitution of India. In general circumstances, three legislations deal with online sexual harassment, namely, The Indian Penal Code, 1860; The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as (the ‘ PoSH Act’) and The Information Technology Act, 2000. The PoSH Act is the country’s first comprehensive legislation specifically addressing the menace of Sexual Harassment at work aimed at providing a safe, secure, and dignified working environment for women. The enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act in 2013 post-Bhanwari-Devi case, also known as Vishakha and Ors. v. Union of India[1] case led to a landmark victory for the working women class. The PoSH Act aims at preventing such Sexual Harassment in the first place and in case such harassment has occurred, it provides for efficient Redressal of complaints by setting up of Internal Complaints Committee, providing compensation and rehabilitation to the victim. The author discusses succinctly common questions that people tend to ask related to virtual sexual harassment vis-à-vis POSH Act.

  1. The first and foremost question is whether or not the POSH Act applies in work-from-home scenarios?

Section 3 of the POSH Act provides that no woman shall be subjected to sexual harassment at any ‘workplace’. The term workplace is defined in Section 2(o) of the POSH Act in an inclusive and non-exhaustive manner. It recognizes the fact that sexual harassment may not necessarily be limited to the traditional office set-up, henceforth introduces the concept of an ‘extended workplace’. To give life to the provisions of this socially beneficial legislation, Courts have time again applied the principle of notional extension to broaden the concept of “workplace” as “extended workplace”. Hence, the employee’s home becomes the notional office for the purpose of this Act. This is further fortified by Delhi High Court’s observations in Saurabh Kumar Mallick v. Comptroller & Auditor General of India[2]. The Court observed, “the aim and objective of formulating the Vishaka Guidelines were obvious in order to ensure that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly. Keeping in view the objective behind the judgment, a narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression “office”. 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.”

 Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University[3], when the issue of the scope of workplace arose, the Bombay High Court gave a liberal interpretation to broaden the scope of the workplace to be beyond the literal physical workplace. The legislative intent is to provide safety and security to women at all workplaces, that is why the definition of the workplace under the Act which is deliberately kept wide to cover any area where women may be subjected to sexual harassment.

Therefore, the application of the Act cannot be restricted to only physical workplace and would include the work-from-home scenario, work related phone or e-communication.

  • What kinds and forms of sexual harassment can take place in work-from-home scenarios?

Sexual Harassment as defined in the POSH Act means and includes “anyone or more unwelcome acts or behavior whether directly or by implication: physical contact and advances; a demand or request for sexual favors; making sexually colored remarks; showing pornography; or any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Sexual Harassment can take the form of humiliation, intimidation, or abuse from a superior or co-workers towards a female employee.”  In online parlance, sexual harassment, inter alia, may take up the following forms- Making sexually suggestive remarks or overtones during work calls; serious repeated offensive remarks or such as teasing related to a person’s body or appearance; indecent behavior during video calls; sexually colored remarks in chats; lewd calls, messages or emails; offensive comments or jokes; inappropriate questions, suggestions, or remarks about people’s sex life; displaying sexiest or other offensive pictures, messages or e-mails; intimidation, threat, blackmail around sexual favors; threat, intimidation or retaliation about employees who speak against the harassment; unwelcome online invitations, flirting; unwelcome advances with promises or threats explicit or implicit; persistently asking someone out; online stalking; comments or rumors about the victim’s sexual activities; sharing sexually explicit photos without consent, etc.

Thus, any conduct or words with a sexual connotation that interferes with an employee’s ability to work or create an uncomfortable atmosphere while working remotely can also be considered sexual harassment.

  • Are interns, trainees, contractual or temporary employees covered under the Act?

The definition of an ‘employee’ as per Section-2(f) of the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract laborers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied. It is pertinent to mention that a complaint can be filed against an employee of the organization, or even an outsider who comes into contact in the course of or in relation to the work, such as a consultant service provider with the workplace or the organization.

Hence, interns, trainees, probationers, trainees, apprentice or other women aggrieved by sexual harassment committed in relation to the work or workplace of that organization are also covered under POSH Act.

Recommendations-

According to research conducted by the Indian National Bar Association, “68.9 percent of victims did not complain to the company’s Internal Complaints Committee (ICC) or to the management due to fears of retaliation, repercussions and a sense that sympathy will remain with the offender.”[4] Non-reporting of Sexual Harassment cases emanates from either lack of awareness or fear of losing a job. It is the solemn duty of the employer to provide a safe working environment at the workplace under the Act. POSH Rules mandate formulation of Anti-Sexual Harassment Policy by the employer. The HR Department, while drafting service agreements, service rules, policies and procedures, and standing orders should state in clear terms the repercussions that would follow in sexual harassment cases. The employer is under obligation to make the employees aware of the provisions of this Act, company policies for prevention and redressal of Sexual Harassment cases. Internal Complaints Committee along with the HR department shall organize online workshops to guide the employees about instances that may amount to sexual harassment and the procedure of reporting thereof, at regular intervals. Employees should be encouraged to report any incidents of harassment at the virtual workplace to the HR or ICC. HR managers and supervisors must be trained specially in dealing with complaints and keeping communication open with the employees. Besides, the organizations must have an online counselor on board who can advise and help those who are in distress. Employers must install software and security system to prevent employees from sending emails containing certain keywords, using certain websites, and an online complaint box may be set about for hassle-free reporting.  The Ministry of Women & Child Development has also launched The SHe-Box, an online platform for reporting complaints of Sexual Harassment. This can be used by the government as well as private-sector employees, and the progress of the investigation can be monitored online by the ministry as well as the complainant. #MeToo complaints may also be sent to the National Commission for Women via email at [email protected].

The protection of the constitutional rights of women to a safe and equal work environment, thus, requires the cooperation of all stakeholders, including the policy makers, employers, employees and co-workers. Late Chief Justice J.S. Verma in Vishaka v. State of Rajasthan, beautifully quoted- “The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitudes to encompass all facets of gender equality….”

[1] Vishakha v State of Rajasthan, AIR 1997 SC 3011.

[2] Saurabh Kumar Mallick v. Comptroller & Auditor General of India, 2008 SCC OnLine Del 563.

[3] Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC OnLine Bom 814.

[4] https://www.indianbarassociation.org/wp-content/uploads/2017/01/Garima-1INBAs-Book.pdf  (visited on Nov 05, 2020)

(The content of this article is intended to provide a general guide to the subject matter.  Bhawna Gandhi is an advocate practicing in Delhi High Court and can be reached at [email protected])

Bhawna Gandhi

Bhawna Gandhi

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