As the nations around the world grapple with the global pandemic COVID-19
by imposing lockdown, the dynamics of social security are changing. In India,
the pandemic shows no signs of ease and hence, the organizations are planning to
extend the work-from-home for their employees to ensure timely services and
connectivity across cross-regional offices. This pandemic-style working, also
known as work-from-home
has brought home, among other things, the menace of
virtual sexual harassment.
Sexual harassment occurs in all occupations and
industries, and organizational culture is the key to understanding how and why
it occurs in some places and not in others. In the eyes of law, it is considered
as a violation of a woman's fundamental human right to live with dignity and
equality guaranteed under Article 14, 15, 19 & 21 of The Constitution of India.
In general circumstances, three legislations deal with online sexual harassment,
namely, The Indian Penal Code, 1860; 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 is the
country's first comprehensive legislation specifically addressing the menace of
Sexual Harassment at work aimed at providing a safe, secure and dignified
working environment for women.
The enactment of Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act in 2013 post Bhanwari-Devi
, also known as Vishaka and Ors. v. Union of India
 case led to a landmark
victory for the working women class. The PoSH Act aims at preventing such Sexual
Harassment at first place and in case such harassment has occurred, it provides
for efficient Redressal of complaints by setting up of Internal Complaints
Committee, providing compensation and rehabilitation to the victim. The author
discusses succinctly common questions that people tend to ask related to virtual
sexual harassment vis-à-vis POSH Act.
The first and foremost question is whether or not the POSH Act
applies in work-from-home scenarios?Section 3 of the POSH Act provides that no woman shall be subjected to sexual
harassment at any workplace. The term workplace is defined in Section 2(o) of
the POSH Act in an inclusive and non-exhaustive manner. It recognizes the fact
that sexual harassment may not necessarily be limited to the traditional office
set-up, henceforth introduces the concept of an extended workplace.
life to the provisions of this social beneficial legislation, Courts have time
again applied the principle of notional extension to broaden the concept of
"workplace" as "extended workplace". Hence, the employee's home becomes the
notional office for the purpose of this Act. This is further fortified by Delhi
High Court's observations in Saurabh Kumar Mallick v. Comptroller & Auditor
General of India.
The Court observed, the aim and objective of formulating
the Vishaka Guidelines was obvious in order to ensure that sexual harassment of
working women is prevented and any person guilty of such an act is dealt with
sternly. Keeping in view the objective behind the judgment, a narrow and
pedantic approach cannot be taken in defining the term workplace by confining
the meaning to the commonly understood expression office.
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 another person while sitting in some other country by way of
Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, when the issue
of the scope of workplace arose, the Bombay High Court gave a liberal
interpretation to broaden the scope of workplace to be beyond the literal
physical workplace. The legislative intent is to provide safety and security to
women at all workplaces, that is why the definition of workplace under the Act
which is deliberately kept wide to cover any area where women may be subjected
to sexual harassment.
Therefore, the application of the Act cannot be restricted to only physical
workplace and would include the work-from-home scenario, work related phone or
What kinds and forms of sexual harassment can take place in
work-from-home scenarios?Sexual Harassment as defined in the POSH Act means and includes:
any one or more unwelcome acts or behavior whether directly or by
implication: physical contact and advances; a demand or request for sexual
favors; making sexually colored remarks; showing pornography; or any other
unwelcome physical, verbal or non-verbal conduct of sexual nature. Sexual
Harassment can take the form of humiliation, intimidation or abuse from a
superior or co-workers towards a female employee.
In online parlance, sexual harassment, inter-alia, may take
up the following forms:
Making sexually suggestive remarks or overtones during
work calls; serious repeated offensive remarks or such as teasing related to
persons body or appearance; indecent behavior during video calls; sexually
colored remarks in chats; lewd calls, messages or emails; offensive comments or
jokes; inappropriate questions, suggestions or remarks about persons sex life;
displaying sexiest or other offensive pictures, messages or e-mails;
intimidation, threat, blackmail around sexual favours; threat, intimidation or
retaliation about employees who speak against the harassment; unwelcome online
invitations, flirting; unwelcome advances with promises or threats explicit or
implicit; persistently asking someone out; online stalking; comments or rumors
about the victim's sexual activities; sharing sexually explicit photos without
Thus, any conduct or words with a sexual connotation that interferes with an
employee's ability to work or create an uncomfortable atmosphere while working
remotely can also be considered sexual harassment.
Are interns, trainees, contractual or temporary employees covered
under the Act?The definition of an employee as per Section-2(f) of the POSH Act is fairly
wide to cover 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, whether for remuneration or not, working on
a voluntary basis or otherwise, whether the terms of employment are express or
It is pertinent to mention that a complaint can be filed against an
employee of the organization, or even an outsider who comes into contact in the
course of or in relation to the work, such as a consultant, service provider
with the workplace or the organization.
Hence, interns, trainees, probationers, trainees, apprentice or other women
aggrieved by sexual harassment committed in relation to the work or workplace of
that organization are also covered under POSH Act.
According to a research conducted by the Indian National Bar Association, 68.9
percent of victims did not complain to the company's Internal Complaints
Committee (ICC) or to the management due to fears of retaliation, repercussions
and a sense that sympathy will remain with the offender. Non-reporting of
Sexual Harassment cases emanates from either lack of awareness or fear of losing
job. It is the solemn duty of the employer to provide a safe working environment
at the workplace under the Act. POSH Rules mandate formulation of Anti-Sexual
Harassment Policy by the employer.
The HR Department while drafting service
agreements, service rules, policies and procedures and standing orders should
state in clear terms the repercussions that would follow in sexual harassment
cases. Employer is under obligation to make the employees aware about the
provisions of this Act, company policies for prevention and redressal of Sexual
Harassment cases. Internal Complaints Committee along with the HR department
shall organize online workshops to guide the employees about instances that may
amount to sexual harassment and the procedure of reporting thereof, at regular
Employees should be encouraged to report any incidents of harassment
at virtual workplace to the HR or ICC. HR managers and supervisors must be
trained specially in dealing with complaints and keeping communication open with
the employees. Besides, the organizations must have an online counselor on board
who can advise and help those who are in distress. Employers must install
software and security system to prevent employees from sending emails containing
certain keywords, using certain websites, and online complaint box may be set
about for hassle-free reporting. The Ministry of Women & Child Development has
also launched The SHe-Box, an online platform for reporting complaints of Sexual
This can be used by government as well as private sector employees
and the progress of investigation can be monitored online by the ministry as
well as the complainant. #MeToo complaints may also be sent to the National
Commission for Women via email at [email protected]
The protection of the constitutional rights of women to a safe and equal work
environment, thus, requires the cooperation of all stakeholders, including the
policy makers, employers, employees and co-workers. Late Chief Justice J.S.
Verma in Vishaka v. State of Rajasthan, beautifully quoted- The meaning and
content of the fundamental rights guaranteed in the Constitution of India are of
sufficient amplitudes to encompass all facets of gender equality….
- Vishakha v State of Rajasthan, AIR 1997 SC 3011.
- Saurabh Kumar Mallick v. Comptroller & Auditor General of India, 2008
SCC OnLine Del 563.
- Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, 2014 SCC
OnLine Bom 814.
(visited on Nov 05, 2020)
* The content of this article is intended to provide a general guide to the
Written By: Bhawna Gandhi
Email: [email protected]