- Nathalia M Fenwick
The covid-19 induced pandemic has lead to a paradigm shift in the way we work. Work from home has become a viable option and with the advancement of technology and internet services, it is possible to work even from the remotest area. However, those who thought that there would be a relief when it comes to sexual harassment at work place while working from home are wrong. The same technology which helped us in these tough times is being misused by many as a tool to harass the co- workers. This article deals with the ways in which one can seek lawful remedy in case of sexual harassment.
In India, there are three laws that primarily deals with sexual harassment. They are; The sexual harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013, The Indian Penal Code, 1860 and the Information Technology Act, 2000.
The sexual harassment of women at workplace Act was enacted after the infamous Vishaka v. State of Rajasthan case.1The said Act defines workplace in a wider connotation. It includes not only the actual physical place but also the extended workplace. The Delhi High Court in the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India2 observed that the extended workplace also includes the employee’s home.
Thus, we can infer from the statement above that the laws for sexual harassment at work place includes work from home. Now, let’s find out what all amounts to sexual harassment as physical contact is not possible when one works from home. It essentially includes demanding, asking or requesting for sexual favors through messages, social media, email or implying that not providing a sexual favor can affect the work or career. Sending sexual innuendos, offensive jokes, remarks about sex or sexual orientation, showing or sending pornography, or any other sexual, verbal or non- verbal conduct with sexual overtones, or creating a hostile work environment for women by any of the above said manner.
Now, what can be done? First and foremost, the woman employee subjected to such sexual harassment has to take screenshots or record the calls to have a solid proof. It is necessary because the employer might be a person with influence and without proper evidence, he can use it to tarnish the employee’s reputation. Additionally, the employee can lodge a complaint with the Internal Complaints Committee (ICC) or with the Local Complaints Committee (LCC). Then, notice will be sent to the respondent within 7 days from the date of receipt of complaint. Enquiry will be conducted by the ICC or LCC within 90 days and whatever order follows must be complied with by the employer within 60 days. It is mandatory for every organization with more than 10 employees to have an ICC. If there is no ICC or LCC, the concerned employee can file a complaint to the police station. The complaint must be filed within 3 months from the date of allegation of sexual harassment and it can be extended to 6 months as approved by ICC in exceptional circumstances.
Remedies under the Sexual Harassment of Women at Workplace Act are; the aggrieved woman or the respondent depending on each scenario can be transferred to a different work place, in work from home case can be shifted to different teams. The respondent can be suspended, granting of leave to the victim up to 3 months, any other order as necessary. The ICC has additional powers in cutting the appraisal or stall the salary.
It is pertinent to note that the comments constituting sexual harassment must be made to the aggrieved person and not to others. The accused can also be jailed. Furthermore, the aggrieved person or victim can file a complaint under Sections 354A, 354C Voyeurism and 354D stalking among other IPC sections.
Here, one issue regarding the Act is that it does not deal with men’s harassment at workplace. Time and again we might have heard or read somewhere about several incidents of harassment against men in workplace. It cannot be ignored in today’s world.
What about the Interns? Recently, there are lot of concerns and issues raised by the interns at several workplaces about sexual harassment. The definition of ‘employee’ under section 2(f) of the POSH Act is fairly wide enough to include all employees, on regular, ad- hoc or temporary basis, employed directly or otherwise by an agent, contract laborers, co- workers, probationers, trainees and apprentices for remuneration or not.3 Thus, interns are also included under the Act.
Justice Ravindra Kumar Pandey while acquitting Ramani of defamation case observed; “the woman has a right to put her grievance at any platform of her choice and even after decades”. In 1993 she had no access to file a complaint under the POSH Act as it came in the year of \2013. And, in Indian scenario women who raise their voices are condemned and socially ridiculed, thereby, she was acquitted of defamation charges.
Even though there are plenty of laws in India for the protection of women, their implementation is hard. Also, many women try to conceal several incidents due to pressure from family or from the higher ups. There are also several online portals to file the complaints in different states. Thereby, at every district there must be effective bodies trying to create awareness and to encourage women from taking action.