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SEXUAL HARASSMENT VIS-À-VIS WORK FROM HOME
This article has been authored by Sanya Mehta, a student at Symbiosis Law School, Noida.
This article is one of the winning entries of National Online Article Writing Competition organised by Lucknow University.
Introduction
The COVID-19 pandemic is a global health crisis with no clear ending in sight. It continues to adversely impact global economy and business sectors. Outbreak of the COVID-19 pandemic and imposing of lockdowns by the Government to curb the spreading of the disease has changed the workplace dynamics. The organizations have adapted work-from-home policy to ensure that the productivity and timely service is not compromised. As the employer and employees try and adjust to this new normal, the difficulties faced due to Sexual harassment at the workplace remain intact.
Sexual harassment occurs in all occupations and industries. Sexual harassment at workplace is considered violation of women’s right to equality, life and liberty. It creates an insecure and hostile work environment, which discourages women’s participation in work, thereby affecting their social and economic empowerment.[1]
At present, there are three legislations that may be applied to deal with online sexual harassment namely, the Indian Penal Code, 1860 which criminalize the offences of sexual harassment, stalking and voyeursim[2], 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 was the first comprehensive legislative which was enacted with objective of preventing and protecting women against workplace sexual harassment. It ensures that there is effective and timely redressal of complaints of sexual harassment. Supreme Court realized the need for such legislation while dealing with case of Vishaka v State of Rajasthan[3] wherein Supreme Court recognized sexual harassment at workplace as a gross violation of human rights. In the light of the powers available to the court under Article 32[4] laid down the guidelines that were to be followed at all workplaces or institutions. While forming these guidelines the court relied on the Convention on the Elimination of All Forms Discrimination Against Women and basic human rights principles enshrined under Article 14[5], Article 15[6], Article 19(1)(g)[7] and Article 21[8] of the Constitution.
Changing Dynamics of Workplace
In a work-from-home setting, a person’s home/residence has become the new workplace and virtual platforms have become an extension to it. While the Vishaka Guidelines were confined to the traditional office set-up, PoSH act incorporated the concept of ‘extended workplace’ acknowledging the fact that sexual harassment may not be necessarily be limited to primary place of employment. It defines workplace in an inclusive and non-exhaustive manner and includes “a dwelling place or a house” as stated in Section 2(o)(vi)[9]. Therefore, by applying the literal rule of interpretation, work-from-home falls under the purview of PoSH act. It is essential that courts do not take a narrow approach in defining the term workplace so that perpetrators of sexual harassment are not acquitted due to technical interpretations. In the case of Saurabh Kumar Mallik v Comptroller and Auditor General of India[10] wherein Delhi High court opined that if a person indulges in an act of sexual harassment with an employee while working through video conferencing, he cannot take defence that he had not committed the act at a ‘workplace’.
Forms of Sexual Harassment
A work-from-home scenario has provided employees safety from the physical form of harassment at workplace but the same has manifested in the form of online communication. Section 2 and Section 3 of POSH Act has interpreted sexual harassment in a wide and non-exhaustive manner which provides for direct or implied unwelcome behavior, sexually colored remarks, showing pornography or any other kind of verbal or non-verbal conduct of sexual nature from both unorganized and organized sector. High Court of Delhi opined that sexual harassment is subjective in nature and the conduct which may be unobjectionable and harmless for men may be offensive for women.[11].
Sexual harassment in the virtual workplace may include inappropriate messages, unwelcome sexual advances by means of sexual jokes/forwards/pictures/videos, Messages with sexual undertone over the telephone or video conferencing, directly or wherein Delhi High court opined that if a person indulges in an act of sexual harassment with an employee while working through video conferencing, he cannot take defence that he had not committed the act at a ‘workplace’ate questions and/or passing Sexual comments on weight, body shape, size, or figure etc. Thus, any conduct or words with a sexual undertone that interferes with an employee's ability to work or create a hostile an uncomfortable atmosphere while working remotely may amount to sexual harassment by virtue of PoSH Act and is punishable under the applicable Indian Laws.
Complaints and Remedies
Section 9 of the PoSH Act provides a written procedure in order for an aggrieved-women to file a complaint about sexual harassment. However, this isn’t possible in the course of online working, so government of India launched a portal called SHE-BOX. It is an effective way to file complaints in work-from-home scenario wherein an aggrieved woman irrespective of her working status can file the complaint of harassment that are directly transferred to the authority having jurisdiction to take action.
Similarly to the procedure of complaints, the grant of the interim relief and compensation provided under Section 12 and Section 13 of the PoSH Act is extended to remote working as well. Section 12 provides a brief description of the reliefs that may be granted during the pendency of the inquiry which usually takes upto 3-6 months. A situation may arise that during the said period of inquiry period the aggrieved women may have to work under or with the respondent. Such a situation goes against the spirit and aim of the act itself; it is essential that all the efforts are made to avoid it. Therefore, IC is empowered to provide interim relief to the victims and it is pertinent to note that the same reliefs could be provided in work-from-home scenarios as well. The aggrieved women while working from home may request the IC committee via mail to grant an interim relief including transfer of herself or the respondent to another department or leave upto the period of three months. Part (C) of the Section provides that IC may grant any other relief to aggrieved women as may be prescribed. Therefore, IC has the power to adopt other means possible that may be required during the remote working to restrain the respondent from contacting the aggrieved.
Section 13(3) of the PoSH act provides for compensation of the victim when, after the inquiry it is concluded that the allegations against the respondent are true. The same may be provided in work-from-home scenarios as the compensation is provided from the deductions made from salary or wages of the respondent or by directing the respondent to pay the sum to the aggrieved women.
Conclusion
In the light of the above sections, case laws and the interpretations stated, it is evident that Sexual harassment of women in work-from-home scenario is covered under the broad ambit of the PoSH Act. Work from home has become a new reality, with the increase in virtual working scenario, there is a proximity between all the employees that has blurred the distinction between formal or informal channels of communication. Online platforms have become a catalyst for this new form of sexual harassment and pandemic has made women vulnerable to it. Lack of awareness about the same has left women unsure as to what constitutes as harassment in the virtual working scenarios. Such a situation calls for appropriate actions and a dynamic change in policies of an organization. One of measures that government may take is drafting of Handbook providing clear guidelines for do’s and don’ts for employees in the case work-from-home similar to handbook on sexual harassment of women at workplace drafted by in 2015. A safe working atmosphere is a legal right of every employee which include 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, for remuneration or not, working on a voluntary basis or otherwise.[12] It is the responsibility of employers and organization to eradicate sexual harassment in all the forms of the workspace. Norms for code of conduct needs to be followed strictly and it is essential that professional decorum is maintained even in work-from-home scenarios.
[1] Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, No. 14 of 2013, India Code(2013) [2] Criminal Law (Amendment) Act, Act No. 13, Acts of parliament 2013 (India). [3] Vishaka v State of Rajasthan (1997) 6 S.C.C. 241 (India). [4] INDIA COST. art.32. [5] INDIA COST. art art.14. [6] INDIA COST. art art.15. [7] INDIA COST. art art.19. [8] INDIA COST. art art.21. [9] Id. at 1. [10] Saurabh Kumar Mallik v Comproller and Auditor General of India (2008) S.C.C Online Del 563 (India). [11] Dr. Punita K. Sodhi v. Union of India & Ors.(2011) SCC Online Del 371 (India). [12] Id. At 1.