Drawing the Line on Workplace Sexual Harassment in the Work From Home Era

The advent of technology has led to new forms of harassment at workplaces. It is important to understand the POSH law (The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013) at this juncture to protect yourself from any form of sexual harassment while working from home. In 2019, a survey by Pink Ladder has revealed that 56% of women believe sexual harassment at the workplace has increased over the years.

Sexual Harassment is not just physical in nature. There are many non-physical forms of harassment and yes it can happen to you even if you work from home!

A short film from 2017 took on the same issue and showed how the onus is unfairly thrust upon women to behave in a certain way so as to not attract the male gaze: Her: Let The Voice Be Yours, stars Maanvi Gagroo playing a character who calls out her boss for his predatory behaviour.

VIRTUAL PARTIES OR ONLINE PARTIES

A new growing trend during the COVID-19 lockdowns and curfews across nations has resulted in virtual parties being conducted on applications such as Zoom, Google Meet’s etc.

Even though “parties” do not involve ‘work talk’, or may be after business hours – it is still an extension of your workplace and gets covered under the POSH law even if you are working from a remote location. Please note that anyone who sexually harasses you during such parties or calls are considered to be harassers and you have a right to file a complaint against them.

Section 2(o) of the Act defines “workplace” in an inclusive and non-exhaustive manner which under its subclause (vi) includes ‘a dwelling place or a house’. 

Apart from the provisions of the POSH law, such acts of inappropriate behaviour which would amount to harassment may also attract provisions of the Information Technology Act, 2000. This is commonly referred to as online abuse or online violence.

In 2008, the Delhi High Court in Saurabh Kumar Mallick Vs CAG (2008) held that the expression ‘workplace cannot be narrowly described to confine its meaning to the commonly understood expression  of an “office” – that is a place where any person of the public could have access. It also made a reference to Vishaka v. State of Rajasthan (1997) case which placed emphasis on the object of ensuring that sexual harassment of working women is prevented and any person guilty of such an act is dealt with sternly.

In this context, in the landmark case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., the Supreme Court opined on the applicability of the theory of ‘notional extension’ of the employer’s premises. The Supreme Court also clearly set out that the scope of such extension of workplace would have to be determined in the facts and circumstances of each case. The Court reasonably concluded that an employer’s premises were not restricted to the strict perimeters of the office space and could be extended beyond such physical territory.

The law uses the phrase “any workplace” in Section 3 and “out of or during the course of employment” in Section 2(o) of the Act. This along with the series of cases makes it clear that anyone who is working from home is covered.

INSTANCES OF SEXUAL HARASSMENT WHILE WORKING FROM HOME

According to POSH law under Section 2(n), several acts can be considered as sexual harassment. Most of these acts include a discernible sexual element. For example, if your boss video calls you every night at 2 am to talk to you and this makes you uncomfortable, it is workplace sexual harassment.

Everyone knows that touching or any other form of physical contact that someone does not want is a clear instance of sexual harassment. However, there are several other forms of harassment which have transgressed onto the online space since many companies and offices are now working from home. Let’s look at some of these instances:

Asking for or demanding sex or any other sexual acts

Electronically communicating or saying things that are sexual in nature over the phone or on video calls

Showing someone pornography in any form that they do not want to see—for example, videos, magazines, or books.

Repeatedly calling you online 

Sending lewd texts

Showing private parts on video calls

Email harassment

Sharing nude images or receiving unwanted photos

Sending Audio or Video Recordings

Email harassment

Being seduced by co-workers

Some of these instances are specifically catered to show the kinds of workplace harassment a woman can face while working from home. A joint survey by the Southeast Asia Freedom of Expression Network (SAFEnet) and Never Okay Project found 86 of 315 respondents claimed they were sexually harassed while working from home and 68 said they witnessed sexual advances being made on their colleagues. Thirty respondents claimed they both experienced and witnessed such unwanted advances.

COMPLAINING AGAINST SEXUAL HARASSMENT

The law has provided a detailed mechanism for filing complaints related to sexual harassment at the workplace. If you have been sexually harassed at the workplace, follow the steps given below to file a complaint for sexual harassment against your harasser.

Step 1: Take screenshots, collect evidence

It is always helpful to collect information so that you can submit them along with your complaint.

Step 2: See if you can bring in any witnesses

If you know someone who has witnessed any online harassment or you have a close colleague you have been complaining about the incident to, you can bring them in as a witness. You can collect their contact details and the Internal Committee will look into the matter during the inquiry.

Step 3: Check if you are covered under your harassment policy/law

Position

You can be a full-time employee,  part-time employee, a contractual employee, working for compensation, volunteer, etc. to file a complaint under this law.

Gender

Under Section 9 of the POSH law, only women can file a complaint for workplace sexual harassment.  Men or transgender persons or other gender identifies who face sexual harassment at work, are not protected in the same way as women. However, this varies according to the policy of the organization, which may cover other identities as well. If that is the case, then you will have to follow the service rules or policy of the organization.

Step 4: File the Complaint to the Internal Committee

Workplaces with more than 10 employees are required to set up a committee that specifically handles cases of Sexual Harassment as per Section 4(2) of the POSH law. This is known as the Internal Committee.

This is what you have to do to file a complaint:

• Draft a complaint

• Make six copies of the complaint

• Submit any supporting documents with the complaint

• Submit the names and addresses of any witnesses who are supporting your complaint

• Submit your complaint to the Internal Complaints Committee* within three months of the sexual harassment.

If you cannot write the complaint on your own, the Committee can help you. A complaint can be filed by someone else on your behalf, such as:

• Your relative or friend

• Your co-worker

• An officer of the National Commission for Women or State Women’s Commission

• Any person who has knowledge of the incident, with the written consent of the victim

You can also complain on the website of the Ministry of Women and Child Development through the SHe-Box

Fun Fact: It was the Repealing and Amending Act, 2016 that changed the name of the Internal Complaints Committee to Internal Committee and Local Complaints Committee to Local Committee.

UNDERSTAND YOUR ALTERNATIVE OPTIONS

All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or Interna Committee. If this provision is not available to you at your workplace, you can go to the Local Committee that is closest to you. It is not easy to contact the Local Committee during the COVID-19 lockdown. Section 7 of the POSH Act mandates the constitution of local committees by the state government. However, there remains a lack of data when it comes to understanding the functioning of the local committees. Only 29 per cent of Indian districts have confirmed that local committees exist to address sexual harassment at workplace, as per an RTI study by Martha Farrell Foundation.

You also have an option to file a criminal complaint if you are being sexually harassed at work. A Criminal Complaint, if proved, will put your harasser in jail. The provisions of the law that will be used in the FIR filed by the police will be either from the Indian Penal Code, 1860 for sexual harassment or Information Technology Act, 200 for online violence. Read more here.

Workplaces need to give sensitization trainings and update their workplace harassment policies to make co-workers understand not only the law but also boundaries applicable while working from home. If you would like to read on sexual harassment at the workplace laws, check out this link.