Since the outbreak of the COVID19 pandemic, businesses across the world have shifted to models of remote work. In India, even with Phase V of the (un-)lockdown and its consequent relaxations in the offing, many companies view working-from-home as a medium to long term situation. While companies grapple with new systems of communication and workflow management during this shift, they must be cognizant of the fact that workplace harassment can also carry over to the virtual realm.
In 2013, the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act (“Act”) was passed to ensure that women had the right to be free from sexual harassment at their workplace, and that employers instituted adequate redressal mechanisms against such harassment. In this article, we highlight how the Act continues to apply to remote work, and how employers continue to be responsible to ensure a safe working environment for their employees.
Sexual Harassment under the Act:
The Act seeks to prevent and offer redressal against sexual harassment at the workplace by placing certain responsibilities on employers. These responsibilities include the setting up of an Internal Committee (“IC”), training employees on prevention of sexual harassment and following the specified mechanism for complaints redressal. The workplace is defined in the Act as ‘any place visited by the employee arising out of or during the course of employment’. The Act defines sexual harassment as the following:
Any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely:—
- physical contact and advances; or
- a demand or request for sexual favours; or
- making sexually coloured remarks; or
- showing pornography; or
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature
Thus, we see that the intent of the Act is to provide working spaces that are safe from acts that are sexual and unwelcome. It is crucial to note that, with the exception of sub-clause (i) above, the definition does not limit harassment to acts which take place in physical proximity or in a company’s physical place of business. Demands for sexual favours, passing of sexual remarks, the showing of pornography and other unwelcome verbal or non-verbal sexual conduct can equally take place in a physically distanced working environment as well.
Sexual Harassment in a remote work scenario
The Act does not exhaustively list situations and circumstances which would constitute sexual harassment. While the Act may not have contemplated a world where workplaces are remote, with the inclusion of the word ‘unwelcome’ in the definition of sexual harassment, the Act has already defined “sexual harassment” broadly as it focuses on the impact of an act on an aggrieved woman, rather than the intent of the aggressor. Hence, unwelcome acts can happen through any medium, online or offline.
There are many ways in which a woman may face sexual harassment even in the course of working virtually. A few examples include:
- Quid pro quo: This kind of harassment occurs in the context of a sub-ordinate and superior relationship, where the superior demands sexual favours in exchange for an advantage or threaten a disadvantage to the sub-ordinate. Such kind of demands or threats can happen through the official communication systems, instant messaging apps, or other social media communication platforms.
- Comments/Remarks: Sexually suggestive comments or remarks can equally be made through online communication channels, whether on group conference calls or one-on-one virtual meetings or through calls/messages/voice notes, etc. It could range from apparently innocuous comments on appearances, such as “hi beautiful”, to sexually explicit remarks and pornography.
- Cyberstalking: Such forms of harassment takes place through virtual communication platforms, and is often for a longer duration of time.
- Unwelcome sexual advances: While people are working from home, unwelcome gestures and propositions can continue to occur via online means of communication. This could include persistently asking someone out, flirting, etc.
The above acts are as detrimental to an aggrieved woman’s safety in the workplace, and to overall productivity, as any physical act of sexual harassment. Thus, to ensure the well-being of its employees even as they work from home, employers must ensure that they update their processes for continued compliance with the Act in letter and spirit.
What can Employers do to provide a safe and harassment free workplace now?
The Act stipulates certain responsibilities to be undertaken by any employer who employs more than 10 persons. Please refer to the below table as a checklist against your POSH compliance in an era of remote work.
|S.No.||Existing Compliance||Updation for Remote Work|
|1.||Finalization and dissemination of an internal Anti-Sexual Harassment Policy applicable to all employees||Check internal policies and ensure that online harassment is explicitly covered within its scope. Consider whether to include specific examples of ways in which online harassment can occur.|
|2.||Constitution of an Internal Complaints Committee, and conducting investigations into sexual harassments complaints as per the Act.||Provide training and orientations, if required, to all IC members on the use of video conferencing and online communication platforms. An employer must designate secure audio-visual conferencing facilities for meetings of the IC and enable recording of such proceedings, along with secure storage of such records. The IC will also have to adhere to the timelines prescribed under the Act to conduct and conclude their proceedings.|
|3.||Publication and prominent display of notices regarding the POSH Policy, members of the IC and their contact details.||Consider issuing a communication to all employees clarifying the modes of online complaints – email ID of the IC, phone number, available hours etc.|
|4.||Training and sensitisation of employees regarding the internal anti-sexual harassment policies and the Act.||(i) Remind employees that POSH Policies will continue to apply during work-from-home, and explain the forms of online sexual harassment that may take place. Everyone must remember that they continue to be responsible to provide a harassment-free workplace. |
(ii) Reinforce Code of Conduct, professional dress code during virtual meetings, etc. for online meetings
(iii) Empower employees to report unprofessional conduct during virtual meetings. This includes even employees who may witness objectionable behaviour (though they may not be a victim themselves).
|5.||Provision of interim relief by the IC by: transferring the aggrieved woman or the respondent to another workplace, granting leave of up to 3 months, or any other relief that the IC may deem suitable.||The modes of interim relief prescribed by the Act may not be suitable considering that both the respondent as well as the aggrieved woman may be working-from-home. In this context, interim relief may be in the nature of coordinating an internal reorganization such that the parties do not have to interact with one another.|
|6.||Preparation of Annual Report by the IC for submission to the employer and District Officers.||Collection of details such as number of complaints received online, number of cases pending beyond 90 days, number of online workshops or training programmes conducted, and the nature of action taken under any inquiry.|
As a matter of good practice, employers can consider:
- Issuing a communication to all its employees reminding them that all communication, whether on monitored platforms and channels like Slack or MS Teams, or unofficial communication such as WhatsApp, will be subject to the same standards as physical interactions;
- If feasible, create filters for official communication or screening of employee communication for offensive terms, which covers even vernacular language terms, and swear words.
- Conduct periodic one-on-one sessions to assess employee well-being.
Just as physical instances of sexual harassment also amount to offences under the Indian Penal Code, 1860 (“IPC”), online sexual harassment can also constitute a criminal offence under the Information Technology Act, 2000, and the IPC. For instance, publishing or transmitting any obscene material in electronic form is an offence punishable by fine or jail time under Section 67 of the Information Technology Act. Further, the following acts, whether they take place offline or online, are offences under the IPC:
- Making sexually coloured remarks, showing pornography against the will of a woman and a demand or request for sexual favours.
- Any man who watches, captures, or disseminates images of a woman engaging in a private act where she would have the expectation of not being observed.
- Contacting or attempting to contact a woman despite a clear indication of disinterest or monitoring the use by a woman of the internet, email or other form of electronic communication.
- Exhibiting any gesture or word or act intending to insult a woman’s modesty or intrudes upon her privacy, is an offence under the IPC.
It is thus crucial for employers to notify their employees of the consequences of engaging in such acts. In light of the restrictions associated with the ongoing lockdowns, it may be challenging for aggrieved women to file FIRs at police stations and initiate criminal proceedings. In this context, the role of the employer in providing redressal becomes all the more important.
While the Act itself prescribes a monetary penalty of INR 50,000 for non-compliance with its provisions, courts in India have been proactive in awarding exemplary damages to aggrieved women whose employers have not adequately met its obligations under the Act. The Madras High Court awarded INR 1.68 crores as compensation to a woman whose former employer had not constituted an IC. Beyond the avoidance of monetary penalties, there is sustained value for employers in ensuring a safe workplace for their employees and upholding a culture of gender equality, and an immeasurable loss of reputation.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.