Sexual Harassment and Work From Home

Sexual Harassment and Work From Home
By Advocate Pavani Macker

Every situation/challenge is an opportunity to invent a new possibility. Likewise, the
ongoing Covid has invented and completely restructured the working manner and has
given birth to mass remote working.
However, according to a joint survey by the Southeast Asia Freedom of Expression
Network (SAFEnet) and Never Okay Project, 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. 30 respondents claimed they both
experienced and witnessed such unwanted advances.
Among the forms of harassment identified in the survey, it was revealed that victims
were subjected to sex jokes, receiving unwanted photos, videos and audio recordings,
as well as being seduced by coworkers.
They were made through various digital communication platforms, such as
messaging apps, video conference apps and email.
94 per cent of victims chose to remain silent and not report the incidents to their
human resources department. A majority believed their report would not be taken
seriously or addressed, while some were afraid that reporting such cases would only
put their jobs at risk.
According to the database of the National Commission of Women, 125 complaints of
sexual harassment of women at the workplace has been received in 2021.
In 2020, NCW received 201 such complaints. This is lower than the 330 such
complaints received in 2019, a year when most employees were still in their offices.
“While the number of cases may have dropped from the previous years, the problem
still persists, and the nature of workplace sexual harassment may have become more
difficult for women to identify or report”, according to Shakun Vijay, Head of the Ask
Sheroes Helpline.
The above survey leads to the question of whether the new Remote Working setup
comes within the ambit of the POSH Act?
* This article was published in thejakartapost.com with the title “Virtual harassment
rampant during work-from-home, survey finds”.

https://www.thejakartapost.com/news/2020/06/13/virtual-harassment-rampant-
during-work-from-home-survey-finds.html.

To answer the question, we need to answer the following questions:

1. Whether harassment over a virtual platform or by any other medium which
does not involve any physical contact will amount to Sexual Harassment?
2. Whether the remote working/working from home set-up comes under the
definition of ‘workplace’ defined within the POSH act?
Section 2 (n) defines “ Sexual Harassment” as follows
“ Sexual Harassment” includes any one or more of the following unwelcome acts or
behaviour whether directly or by implication namely:
1. Physical contact and advances; or
2. a demand or request for sexual favours; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual
nature;
Sub Clauses (ii), (iii), (iv) and (v) of Section 2 (n) of The Sexual Harassment Act
( Prevention, Prohibition and Redressal), 2013, clearly states that Sexual Harassment
not only occurs physically but can also occur verbally, virtually, over a phone or a
video call, etc.
For eg: The demand or request for sexual favours can also take place over a phone, or
while the employees/ colleagues are on a video call or any other platform which the
company might be using. Likewise, making a sexually coloured remark, sending
pornography links or videos, or any unwelcome conduct of sexual nature cannot only
take place physically but can also take place on a virtual platform or personal mobile
phones.
Section 3 subsection (2) of The Sexual Harassment Act ( Prevention, Prohibition and
Redressal), 2013 further widens the definition of Sexual Harassment which is as
follows :
The following circumstances, among other circumstances, if it occurs, or is present
about or connected with any act or behaviour of sexual harassment may amount to
sexual harassment:
(i) implied or explicit promise of preferential treatment in her employment; or
(ii) implied or explicit threat of detrimental treatment in her employment; or
(iii) implied or explicit threat about her present or future employment status; or
(iv) interference with her work or creating an intimidating or offensive or hostile
work environment for her; or

(v) humiliating treatment likely to affect her health or safety
The circumstances (if it occurs concerning the act of sexual harassment) given under
section 3 need not only occur physically to be called sexual harassment, such
circumstances can also occur over different platforms such as Mobile Phones, chats,
video calls etc, to be called an act of Sexual Harassment.
“Sexual harassment doesn’t necessarily mean physical harassment. In fact, workplace
harassment usually isn’t physical,” said Rekha Sharma, Chairperson of the National
Commission for Women.
The broad definition as stated under Section 2(n) and Section 3(2) covers some of the
pointers which women face while working from home such as
• Sending personal and inappropriate messages,
• Sexual jokes/forwards/videos/drawings/pics,
• Sexual descriptions over the telephone or video conferencing,
• Continuous idle chatter over the phone which is sexual,
• Unwelcome remarks while communicating,
• Digital stalking (stalking in all forms of social media),
• Lewd gossips on colleagues about sexual affairs/sexual orientation/preferences/
virginity,
• Vulgar humour or language while communicating,
• Relentless proposals for physical intimacy,
• Encroaching personal space by asking inappropriate questions,
• Passing Sexual comments on weight, body shape, size, or figure.
Coworkers Sending Sexts or Video-Chat Exposure
Therefore, concerning the question due raised, it can be concluded that the act itself
provides the instances of sexual harassment that one can encounter online while
working from home.
As per Section 2 (o) of the act, “ a workplace” includes :
(v) any place visited by the employee arising out of or during employment including
transportation by the employer for undertaking such journey;
(vi) a dwelling place or a house
The term “arising out of ” has been subjected to judicial interpretation from the very
beginning and most of the time it has been seen that the court has tried to give wide
meaning to it. Also, the phrase “out of or during employment” has been interpreted
by the courts from time to time by applying the theory of Notional Extension.
Generally, in employment law, the extension has been for governing compensation to

be awarded to employees or workmen in case they sustain injuries during their
employment.
As in the case of Union of India v. Mrs Noor Jahan, a railway gagman was ordered
by his employer to go to another place for cleaning and on the way from one place to
another an accident happened. Justice Shukla observed that the accident had occurred
in the duty hour and when he was going to do his duty on behalf of his employer. So,
the court concluded that the accident has occurred in the course of worker
employment. The same gets extended to remote places provided that the employee is
working under the employer’s order.
Also, in the case of Weaver v. Tredegar Iron Coal Co., Lord Atkin said that “the
course of employment cannot be limited to the time or place of a specific form in
which the workmen are employed to do so. There is some reasonable extension in
both time and space.” This gives us an overview of how courts have extended the
term ‘workplace’ and given compensation to the workers. Thus, applying the similar
interpretation in the above-discussed section 2 (o) (v), it can be concluded that the
term “workplace” can be extended to remote working to provide compensation to the
victims of sexual harassment.
Subsequently, according to Section 2(o) sub-clause (vi) includes the phrase “a
dwelling place or a house.
”Although the initial meaning derived from this phrase refers to domestic workers
and house helpers, yet, the intention of the act emphasises that it should logically
apply to everybody who is working from their own home, leased/rented home, a
company leased home or any other form of accommodation. Hence, every place of
work becomes the workplace.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India,
Delhi High Court held that “the aim and objective of the judgment of the Supreme
Court in Vishaka & Ors. v. State of Rajasthan was that a narrow and pedantic
approach cannot be taken in defining the term ‘workplace’ by confining the meaning
to the commonly understood expression ‘office’. To extend the protection of women
at workplaces it may reasonably be assumed that the scope of ‘workplace’ shall
usually be construed liberally, not in a restrictive manner.” Court also stated that “It
is imperative to take into consideration the recent trend which has emerged with the
advent of computer and internet technology and the advancement of information
technology. A person can interact or do a business conference with another person
while sitting in some other country by way of video-conferencing. It has also become
a trend that the office is being run by CEOs from their residence. In a case like this, if
such an officer indulges in 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.”

Also, in the case of Ayesha Khatun v. The State of West Bengal & others, Calcutta
High Court held that:
“Even though the workplace had not been defined either in the Vishaka guidelines or
in the Vishaka judgment, a logical meaning should be given to the expression
‘workplace’ so that the purpose for which those guidelines have been framed, is not
made unworkable. The workplace should be given a broader and wider meaning so
that the said guidelines can be applied where its application is needed even beyond
the compound of the workplace for removal of the obstacle of like nature which
prevents a working woman from attending her place of work and also for providing a
suitable and congenial atmosphere to her in her place of work where she can continue
her service with honour and dignity.”
Hence, it can be concluded that the courts have given a wide interpretation of what
would constitute a workplace whenever the need arose to extend its ambit. They have
broadened the concept of “workplace” as an “extended workplace” in the interest of
the protection of women at their workplace.