Sexual Harassment Vis-a-Vis Work from Home

Source : Work Lawyers PC

This article is authored by Shaaivi Shukla & Akhshat Pandit of Amity Law School, Delhi.

This article is one of the winning entries of National Online Article Writing Competition organised by Lucknow University.

Sexual harassment stems from gender conditioning that begins at the nascent stage of life. It might be in the form of subtle anecdotes or overt actions of the society. Men and women are conditioned to believe in their respective gender roles, these roles act as a catalyst to make women believe they are inherently inferior to men, and men to believe that they are superior and women must comply to all their demands. Such behaviours later turn to be the root cause of men to abuse, ill-treat or become violent towards women and to treat them with disrespect.

Sexual Harassment is the violation of the fundamental right to Life and Liberty of the victim, right to equality and freedom to work. These rights are guaranteed under Article 14,15 and 21 of the Constitution of India. As the name suggests these rights are so fundamental to the woman that a violation of this right may directly be addressed at the Supreme Court. One ambit of sexual harassment is sexual harassment of women at workplace. In 1993 at the International Labour Organisation Seminar held at Manila, Philippines recognized that sexual harassment of woman at the work place was a form of gender discrimination against women. The mere discrimination against women at workplace based on gender does not constitute the offence of 'sexual harassment'.[1]

Over the years every country has been able to set guidelines as to what amounts to sexual harassment and its recourse. What constitutes a workplace has changed amidst the COVID-19 pandemic that the world is facing. People have been forced to stay within the confines of their home, and companies have been forced to implement work-from-home “WFH”. Since homes have turned into workspaces, does this mean an end to sexual harassment at workplace, or does this change the definition of sexual harassment at workplace?

Sexual harassment of women at workplace in India is covered under both the civil as well as criminal law. Its overall history can broadly be divided into two stages; the pre-Vishaka state and the post-Vishaka state.

The Supreme Court of India for the first time dealt in detail with sexual harassment of women at work places in the landmark Vishaka judgment.[2] In the absence of any legislature to the extent of effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, the court laid down various guidelines to reduce and check this evil.

These guidelines, popularly known as the Vishaka guidelines were followed to deal with cases of sexual harassment but they did not include women of unemployed sectors.

This changed in 2013 when The Sexual Harassment At Workplace (Prevention, Prohibition And Redressal) Act, 2013 was enacted with a view to provide a comprehensive statute regarding sexual harassment. The Act protected all women employees whether working in the organized sector, unorganized sector or even a dwelling house.

The definition of sexual harassment as found in the Vishaka judgement has been incorporated under Section 2(n) of the Act, “sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature;

The post Vishaka state was seemingly sufficient till the pandemic, the unforeseen nature of which did not prepare us for the new age of work-from-home.

In the current scenario of work-from-home many video calling applications such as Zoom, GoogleMeet, MicrosoftTeams along with many softwares personal to the company are being used to host meetings, daily checks, or progress meetings etc. All communication has shifted to audio or video calls and “office hours” skewed beyond reason. In these circumstances all instances of sexual harassment as defined by the Act under Section 2(n) (ii),(iii),(iv) and (v) may still very well be prevalent. Physical contact is not an essential ingredient to determine sexual harassment. While deciding this question the Supreme Court in Apparel Export Promotion Council v. A.K. Chopra, held that a conduct which is against moral sanctions and which does not withstand the test of decency and modesty and which projected unwelcome sexual advances.[3] Such as action would be squarely covered by the term sexual harassment. Any action or gesture, whether directly or by implication, aims at or has the tendency to outrage the modesty of a female employee, must fall under the general concept of the definition of sexual harassment.

Whether there was actual physical molestation or not should not be the decisive criterion for Sexual Harassment. Courts must examine the broader probabilities of a case and not get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of the expression molestation.[4] Hence women are just as vulnerable to be victims of sexual harassment in a WFH set up as they were in an office set up.

The Act may be applicable in WFH set ups too. It is well known that legislature often adopts the phraseology means and "includes" in defining terms where terms are given an artificial meaning, and this method of defining terms generally has the effect of enlarging the meaning of the words or phrases occurring in the body of the statute.[5] The definition of ‘workplace’ under Section 2(o) (v) of the Act, is an inclusive and non-exhaustive definition and includes any place visited by the employee arising out of or during the course of employment including transportation by the employer for undertaking such journey.

The words ‘arising out of or during the course of employment’. It is clear that there two conditions to be fulfilled. What arises ‘in the course of the employment’ is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man's service[6], the latter to a connection to the employment. The standard set by the Act is lower than that of the parallel provision of the Workmen’s Compensation Act, 1923 which requires both the conditions to be met, whereas in the Act if either of these conditions suffice it is considered ‘workplace’.

Since WFH provisions arise out of employment and during the course of employment, individual’s house would be considered a part of ‘workplace’.

Furthermore Section 2 (o) (vi) of the Act includes a dwelling place or a house within the definition of ‘workplace’. This provision was to include within the context, a domestic worker employed in such a dwelling place or house, but as discussed above the legislators wanted to make this section an inclusive one and the Act to encompass the widest scenarios possible. Since it is well settled that the essence of law lies in its spirit and not the letter in such unprecedented times, it may help to generalize home and dwelling place to encompass situations of sexual harassment in a WFH scenario.

Sexual harassment at workplace is still very much a reality though now a virtual one. The Act is wide enough to protect women who face sexual harassment in a work from home set up but the need to sensitize both men and women by the help of workshops and activities is more than ever. However the Act only covers sexual harassment of women at workplace, it neglects and does not recognize men who are harassed at workplace. Sexual harassment of men is a reality which must be addressed. For any country to progress all its citizens must be given equal respect and dignity, no person should be subjected to such harassment and hence the Act must be expanded to include men. Gender roles condition society to believe that only the men can be perpetrators; the corollary to this is that men can never be victims. This false sense of belief is extremely toxic and must be redressed by making the Act gender neutral and inclusive.

[1] Dr.Prasad Pannian v. Central University of Kerala, 2020 SCC OnLine Ker 6550. [2] Vishaka and Ors v. State of Rajasthan and Ors, AIR 1997 SC 3011. [3] Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625. [4] Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625. [5] State Of Bombay v. Jamnadas Gordhandas, (1955) 57 BOMLR 155. [6] Shakuntala Chandrakant Shreshti v. Prabhakar Maruti Garvali & Anr, AIR 2007 SC 248