Documente Academic
Documente Profesional
Documente Cultură
Workspace: Practical
Challenges Under Sexual
Harassment Of Women At
Workplace (Prevention,
Prohibition And Redressal)
Act,2013
INTRODUCTION
Long bygone are the days when men used to be the solitary bread-earners of the
family. Women empowerment and globalization have brought a revolutionary
change in the status of women worldwide as more and more women have been
stepping out of their domestic spheres to contribute to the world's ever-increasing
working population. In the Indian IT industry women's representation is
increasing rapidly, e.g. IBM offered jobs to 52 per cent women through campus
[1]
recruitment in 2012. The number of women constituting the workforce have
been increasing with each passing day. Employment in Computer science and IT
are considered more appropriate for women due to positive organizational culture,
though female workforce participation is on the rise in other sectors as well, such
as education, consulting but efforts to minimize work–family conflict on part of
[2]
organizations had not kept pace until the advent of COVID – 19. COVID-19
pandemic has left no other options to the corporates and they are compelled to
consider the newer methods of working or the alternative working arrangements,
e.g. work from home (hereinafter referred to as "WFH"), teleworking,
telecommuting, etc.
While the expansion of the workplace, through the virtual set-up, is facilitating
the corporates to seamlessly continue their operations, it also poses a great
challenge as the virtual interface has brought the menace of sexual harassment to
the realm of home. In such a situation, the moot question that arises is whether an
act of sexual harassment committed by a perpetrator virtually while a woman is
working from home would be covered under the provisions of Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
("POSH Act") and Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Rules, 2013 ("POSH Rules")?
1. INTERNATIONAL CONVENTIONS/RESOLUTIONS
(a) in the workplace, including public and private spaces where they are a place
of work;
(b) in places where the worker is paid, takes a rest break or a meal, or uses
sanitary, washing and changing facilities;
The Convention has not been ratified by India, and these unprecedented times
require that attention be drawn to it.
Article 1, CEDAW, provides that one of the purposes of the United Nations is to
achieve international cooperation in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to, inter
[7]
alia, sex. In Vishaka v. State of Rajasthan, Supreme Court of India observed
although there was no domestic law addressing sexual harassment at workplace in
India, there was an international obligation under CEDAW to ensure safe working
environment. As such, even though India may not have ratified Violence and
Harassment Convention, it is obligated under CEDAW to provide a 'safe working
environment' and which should include a harassment free environment
irrespective of whether the workplace is 'physical' or 'virtual' so long as the
woman is discharging her functions or duties during the course of the employment
and for the employer.
Even after the adoption of CEDAW, as violence on the basis of sex remains a
continuous problem, the General Assembly issued aforesaid resolution on 20th
December 1993 to ensure elimination of violence against women.
POSH Act and POSH Rules were enacted to protect the women against sexual
harassment at their workplace and provide a mechanism for the redressal of their
complaints of sexual harassment. Needless to say, sexual harassment at workplace
creates an insecure and hostile working environment for women and also hinders
their ability to work efficiently in today's competing world. In addition to
interfering with their work performance, it adversely affects their social and
economic growth and puts them through unnecessary physical and emotional
trauma.
POSH Act provides that the term "sexual harassment" includes any one or more
of the following unwelcome acts or behavior (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
[9]
of sexual nature. POSH Act further provides that the term "workplace" includes
— (i) any department, organisation, undertaking, establishment, enterprise,
institution, office, branch or unit which is established, owned, controlled or
wholly or substantially financed by funds provided directly or indirectly by the
appropriate Government or the local authority or a Government company or a
corporation or a co-operative society; (ii) any private sector organisation or a
private venture, undertaking, enterprise, institution, establishment, society, trust,
non-governmental organisation, unit or service provider carrying on commercial,
professional, vocational, educational, entertainment related, industrial, health
services or financial activities including production, supply, sale, distribution or
service; (iii) hospitals or nursing homes; (iv) any sports institute, stadium, sports
complex or competition or games venue, whether residential or not used for
training, sports or other activities relating thereto; (v) any place visited by the
employee arising out of or during the course of employment including
transportation by the employer for undertaking such journey; (vi) a dwelling place
[10]
or a house. An "aggrieved woman" in relation to a workplace, means a woman
of any age, whether employed or not, who alleges to have been subjected to any
act of sexual harassment, and in relation to a dwelling house, means a woman of
[11]
any age who is employed in such a dwelling place or house.
"6.24 The Committee believes that the present definition of 'sexual harassment'
would suffice and serve its purpose as it is based on the definition given by the
Supreme Court. However, keeping in view various developments in technology
and harassment through these mediums, the following words as given in the
definition of 'sexual harassment' in the NCW draft Bill, 2010 can be added at the
end of sub-clause (v):—
Sexual harassment will thus include any other unwelcome physical, verbal or
non-verbal conduct of sexual nature whether verbal, textual, physical, graphic or
electronic or by any other actions."
As such, Section 2(o) (v) of the POSH Act, 2013 reads as under:
"(v) any place visited by the employee arising out of or during the course of
employment including transportation by the employer for undertaking such
journey."
Alternatively, it can be argued that the terms "house" or "dwelling place" used in
Section 2 (o) (vi), POSH Act in the definition of "workplace", is sufficient to take
within its ambit the "work from home" situations, even though the legislature had
originally intended to include 'house' or 'dwelling place' as the workplace for
domestic workers.
Notwithstanding the above, the lack of clarity in the POSH Act and POSH Rules
concerning the present WFH situation, expose a lacuna in the POSH Act, 2013,
which may come to haunt several women who are presently 'working from home'
or 'teleworking' or 'telecommuting' during Covid-19 pandemic. It is, therefore,
imminent that the parliament recognizes this lacuna and takes immediate action to
rectify it, instead of leaving it upon the courts to apply their judicial activism to
come to the aid of such women.
The concept of notional extension of workplace was applied by the Hon'ble High
Court of Delhi with respect to the definition of 'Workplace' under POSH Act,
2013 in Saurabh Kumar Mallick v. the Comptroller and Auditor General of
[18]
India & Anr. While dismissing the petition, the Hon'ble High Court of Delhi
observed that the word 'workplace' could not be given a restrictive meaning-
"21. It is imperative to take into consideration the recent trend which has emerged
with the advent of computer and internet technology and advancement of
information technology. A person can interact or do business conference with
other person while sitting in some other country by means of video-conferencing.
It is also becoming a trend that offices are run by certain CEOs from their
residence. Obviously, members of the public would not have access to that place,
though personal staff of such an officer would be present there. In a case like this,
if such an officer indulges into an act of sexual harassment with an employee, say,
his private secretary, it would not be open for him to say that he had not
committed the act at 'workplace', but at his 'residence' and get away with the
same. It is also a matter of common knowledge that in educational institutions,
hostel accommodation is provided to students and teachers are also provided the
residential flats. These may be within the vicinity of the college complex. An
officer or teacher may work from the accommodation allotted to him. He would
not be allowed to say that it is not a workplace. These are some of the illustrations
which are given to bring home the point that we cannot accept the narrow
definition of the expression 'workplace' as sought to be projected by the learned
Counsel for the petitioner."
As such, the High Court of Delhi laid down general guidelines to determine a
workplace as follows-
Thus, the determination of a place as a workplace shall depend on the facts and
circumstances of the case.
Adapting to changes is imperative to achieve justice, and the legislative gap did
not restrain the High Court of Delhi from judicially recognizing the new changes
in the work culture. In the absence of an authoritative decision by the Supreme
Court of India, it cannot be said with certainty whether other courts would apply
the concept of notional extension of 'workplace' to such 'work from home',
'teleworking' or 'telecommuting' situations. Further, a lack of physical contact or
physical space should not disable a victim from seeking redressal, as a definition
which excludes the virtual workspace from the definition of workplace would
defeat the very purpose of the POSH Act and encourage otherwise abhorrent acts
in the present virtual work culture. Indeed, in the absence of a definitive
legislative framework, judicial interpretation and company policies can alone
address this wide gap.
S. 354 C of the Code criminalizes the acts of Voyeurism and S. 354 D of the Code
criminalizes the act of stalking.
Insulting the modesty of a woman- S. 509 of the Code provides that whoever with
an intention to insult the modesty of any woman; utters any words, makes any
sound or gesture, or exhibits any object, intending that it be heard or seen by such
woman, or intrudes upon her privacy shall be liable to punishment.
Thus, while the legislative lacunae in POSH Act and POSH Rules continue to
prevail, recourse may be available to women under the Indian Penal Code and the
Information Technology Act, when faced with acts of sexual harassment while
working from home or tele-working.
VI. CONCLUSION
Though the POSH Act may not explicitly express any reference to "virtual"
workspace within the definition of "workplace" or may have omitted to use words
like "graphic" or "electronic" from the definition of "sexual harassment", it is
very likely that the Courts of this country will only uphold a construction or
interpretation of "workplace" (whether by interpreting provisions of Section 2(o)
(v) or Section 2(o)(vi) of POSH Act to include alternative working arrangements,
such as WFH, or by extending the theory of notional workspace) which will
further the objectives of the POSH Act, is concomitant with India's international
obligations and will come to the rescue of women, especially when the POSH Act
is a beneficial legislation which came to be enacted only after the guidelines were
passed by the Supreme Court in the Vishaka case.
Having said that, "work from home" is the new normal post Covid-19, and several
companies are already experimenting with alternative working arrangements
(such as WFH) to replace the physical workplace to reduce infrastructural costs,
rent, expenses, etc. and to increase efficiency of employees. There has been an
increase in the cases of sexual harassment in the cyberspace or cyber- workplace.
[19]
The prevailing circumstances of COVID- 19 pandemic and the technological
advancements may have paved way for the new ways of working, such as WFH,
but the Companies must recognize that the virtual link to work has also opened
new vistas of intrusion into the personal home space of women and their personal
or family life, which in turn has the effect of intrusion into the privacy of a
woman. Thus, the Companies must ensure that adequate measures are in place to
prevent acts of sexual harassment in the virtual workspace and/or prevent
violation of privacy of the woman employee. At the same time, the
Companies/employers/managers/supervisors need to be mindful of the fact that
there ought to be disruption, background noise, connectivity issues, unintentional
interference by family members/children of the woman employee while working
from home. The Companies need to ignore such unintentional glitches or
disruptions and maintain constructive and progressive outlook to ensure that
women employees are not considered incompetent for such reasons and no
prejudice is caused to them.
Way Forward
[1]
Sumita Raghuram, South Asian Journal of Human Resources Management, 1,
2 (2014): 207–220 210.
[2]
Sumita Raghuram, ibid.
[3]
Millennium & Copthorne International Ltd. v. Aryans Paza Services Pvt. Ltd.
& Ors., IA No.15008/2016, High Court of Delhi, 05.03.2018.
[4]
ILO, "Working from Home: A potential measure for mitigating the COVID-19
pandemic", Policy Brief, April 2020.
[7]
1997 6 SCC 241: AIR 1997 SC 3011.
[8]
1997 6 SCC 241: AIR 1997 SC 3011.
[9]
Section 2(n), POSH Act.
[10]
Section 2(o), POSH Act.
[11]
Section 2(a), POSH Act.
[12]
Supra, at 9.
[13]
Supra, at 8.
[14]
239th Report of Department- Related Parliamentary Standing Committee on
Human Resource Development on the Protection of Women Against Sexual
Harassment at Workplace Bill, 2010, at
https://rajyasabha.nic.in/rsnew/publication_electronic/SEXUAL_HARASMENT.pdf
4.1 During the course of its interactions with various stakeholders and also in the
memoranda received on the Bill, quite a few issues, directly or indirectly
connected with the proposed legislation and implementation thereof were raised.
Some of the pertinent issues raised are indicated below:-
— The Bill does not cover harassment outside workplace like SMS and phone
calls to home."
The Committee finds all the above issues very crucial and relevant for the proper
implementation of the proposed legislation. The Committee is of the view that all
these aspects need to be incorporated in the legislation itself to the extent possible
and in the Rules to be framed thereunder."
[15] See, for example, Apparel Export Promotion Council v. A.K. Chopra (SC),
where it was held that a mere lack of physical contact would not redeem an
otherwise sexually unwelcome act from the definition of sexual harassment. See
also, Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (W.P.
Nos. 3449, 3450 & 3451 of 2013), where the Bombay High Court observed that
the definition of workplace was deliberately kept wide by the Parliament to ensure
that any area where a woman is subjected to sexual harassment is not left
unattended or unprovided for.
[16] https://dictionary.cambridge.org/dictionary/english/visited
[18]
WP(C) No. 8649/2007.
[19] https://www.newindianexpress.com/nation/2020/jun/01/covid-19-lockdown-
working-women-complain-of-online-sexual-harassment-say-experts-
2150824.html
[20]
https://timesofindia.indiatimes.com/india/work-from-home-brings-virtual-
sexual-harassment-home-too/articleshow/76543669.cms (Though it has been
reported that though many companies are conducting inquiries online, often
inquiries are delayed as the parties find it uncomfortable to attend the proceedings
in the presence of their family).