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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

POSH Act & Work From Home: Is it Possible to Secure Rights for all Genders?

A. INTRODUCTION 

The (COVID-19) pandemic has drastically affected the ability of humans to go about their regular lives and accomplish their daily tasks. It has called for a number of adjustments to the current lifestyle of people. One such adjustment happened in the working culture of employees across India, known as work from home, wherein, as the name suggests, the employee works within the comfort of their home—without having to go to a physical office space. The practice of work from home is a particularly new concept in the Indian space; nevertheless, it was accepted with open hands in the wake of a global pandemic. In fact, various enterprises have shown interest in continuing this trend even when the lockdown gets lifted.[1]

However, in addition to embracing this trend, our country—even amidst the lockdown—has also witnessed an unfortunate rise in the cases of violence and harassment against women.[2] One such type is related to harassment of women at the workplace. Prior to the lockdown, and even in it’s a procession to some degree, women’s rights were safeguarded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [POSH Act hereinafter]. However, witnessing this shift in the trend of a workplace incorporate big houses and its acceptance thereof also forces us to ponder upon the possibility of harassment in these new circumstances and, if the efficacy of this legislation would suffice to combat said harassment thereunder. 
Ergo, the following article will conduct a thorough scrutiny of a small group of provisions within the POSH Act to draw emphasis upon various possible solutions apropos to the work from home culture and the global pandemic, while also keeping in mind the interests of all genders.

B. WORK FROM HOME CULTURE & NEED TO ADDRESS ITS UNDERLYING ISSUES

“The employer should ensure that the duties which are cast upon them by the said Act are complied in neat.” [3]

Changing the work environment also necessitates training of the employees of an enterprise which is requisite to said environment. In this respect, the POSH Act comprises, in addition to the local government’s responsibility for communicating, educating, training, and making women aware of this act,[4] the duty of an employer to conduct workshops for sensitizing their employees of this act.[5] However, even after the existence of these provisions, the cases of harassment of women at the workplace are a long way from a stop. It was pointed out in Medha Kotwal Lele and Ors. vs. Union of India (UOI) and Ors.[6] that even after the inception of Vishaka Guidelines—the predecessor for POSH Act—female employees weren’t made fully aware of their rights & remedies lying within the act, and as a result, faced harassment at the workplace.[7] As is the case with the POSH Act.[8] In addition to this notable fallacy, the continuance in the culture of work from home, coupled with the harassment of women at their extended workplace—without any knowledge as to the existence of proper remedies—would result in a misadventure for female employees.
It appears, prima facie, that the Indian Judiciary is fully conscious about the need to protect the interest of women; as evident from the decision of extension in the definition of the workplace.[9] But what lacks herein, and often neglected, is the proper enforcement and implementation of the provisions of this act.[10] Perhaps it has been rightly contended that “Indian women do not suffer from legal disparities but they suffer from practical disparities”[11] Therefore, in the wake of a global pandemic and acceptance of the work from home culture, enforcement of these provisions are the need of the hour because one could hardly imagine the horrors of reasoning otherwise. 

I. Appropriate Measures by the Employer 

Employers have to reconsider and strictly implement their anti-sexual harassment policy. Inclusion of “work from home” in the wider contextual definition of a workplace could be a healthy start. Lockdown or no lockdown, if an employer’s enterprise partakes in the culture of work from home, the inclusion and recognition of a women’s house, or for that matter, any other place she works from, should be taken into due consideration. In this regard, the Delhi High Court observed that the following factors would have bearing on determining whether the act has occurred in the ‘workplace’: 
I. Proximity from the place of work;
II. Control of the management over such a place/residence where the working woman is residing; and
III. Such a residence has to be an extension or contiguous part of the working place.[12] 

a. Acknowledgement of Extension in Workplace

In the aforementioned factors, while the former two limit the definition of a ‘workplace’ to a residence situated not far away from work and in control of the management, the latter, in interpretation extends that definition to the home of an employee. Additionally, the employer has to take into account the changing global outlook towards work culture—which has extended and redefined what a workplace is. Now, a workplace is not limited to a four-walled room wrangling a corporate air, or for that matter, a four-walled room filled with leisure. An employee could be working from anywhere, at any time, and it would be the obligation of an employer to bear this in mind and accordingly take the cogent measures to prevent any issue. 

b. Redefining what constitutes sexual harassment 

The employer, in consonance with the definition of “sexual harassment” within the POSH Act,[13] has to wider their own definition of what can constitute sexual harassment in their line of work. A derogatory email, a salacious phone call, or even a lascivious WhatsApp text could amount to sexual harassment. Since physical harassment is no longer in the purview, verbal conduct through the medium of a telephonic conversation, or non-verbal conduct through the medium of messages, emails, or sharing explicit content should also be taken into consideration. For instance, if an employer’s enterprise requires video calls for work purposes, a proper dress code should be mandated.

c. The Outlook of an employer 

The employer should ensure that victims or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment.[14] Many a time the complaint of sexual harassment is not duly taken into consideration and passed off as building camaraderie[15] or mere jokes. This attitude needs fixing. In the United States, in cases related to sexual harassment, it is not the standard of a “reasonable man” they follow, but the standard of a “reasonable woman”.[16] Perhaps the same outlook could also be accepted by the employer.

d. Training Sessions

It has been already established that many a time female employees are unaware of their rights under this act; however, they still wouldn’t face much trouble—working, say, in a traditional office situation—to render evidence against the perpetrator, as the woman in the question, would have witnesses against the perpetrator, and if not, inter alia, surveillance footage could be monitored and employee check-in-time could be analysed by the employer. But the scope of these measures is limited to an office space. Working from home, these measures would be difficult to come by. Therefore, training sessions to educate female employees about their rights and orientation for the members of the Internal Committee (IC) should be conducted to keep up with the changing environment. The employer could instruct the female employees to take measures like: 

a. Recording any salacious call from the preparator;

b. Screenshots of lascivious texts;

c. Storing this information on a secure drive;

d. Sending the same details to a trustable witness, IC member, or LC Member, as the case may be; and

e. Immediately record the dates, times and facts of the incident(s).

Employers need to genuinely be concerned with the safety of women at the workplace rather than staging a farce of compliance under the POSH Act. Furthermore, in research conducted, it was suggested that if the surroundings help the situation to occur, it automatically occurs, for example, if a person is responsible for sexually threatening one time, he will do it again if the system allows him to do so.[17] However, this behaviour could easily be prevented by strict enforcement of the guidelines and following the POSH Act to the word, not only in substance but also in spirit.

C. POSSIBILITY OF DEFAULT IN INQUIRY PROCEDURE

The POSH Act is not a gender-neutral act; meaning, that the act covers in its entirety the definition, scope, preventive measures, complaint mechanism, and penalty pertaining to the impartation of justice to a male perpetrator. While there is a section talking about malicious intent on the side of the victim,[18] there isn’t much to safeguard the rights of the other genders. Herein, the question of the disposal of proper justice arises. We work under a legal system where “innocent until proven guilty” is the norm; however, the provisions of the POSH Act do not leave much scope to implement this presumption—especially in a work from home context.
The Internal committee has various privileges specified within the act in this regard. For instance: 
I. The IC has the authority of a civil court and can summon and enforce the attendance of any person and examine him on oath.[19] This would not be practicable in lockdown, or to that extent, to organisations which operate on a work from home model. Employees in these organisations could work in different parts of the country, or even of the world, and in those circumstances, summoning of the victim, perpetrator, and witnesses would not be entirely possible. Herein, the contention of conducting such summonings through the mode of video conferences comes into the picture. This, again, would not be feasible. The author accepts that the speedy disposal of such cases to ensure the mental well being of the victim is required; however, it could not be at the expense of someone else’s rights. An online proceeding can never be similar to a real one and could pose difficulty in the process of imparting justice. For one, it would not be free and transparent—there would exist a slim possibility that malicious intent could be portrayed by any witness or the victim. Therefore, complaints of sexual harassment should be inquired into seriously and that too without any bias.[20] A contention similar to this nature has also been noted by the honourable High court of Kerala when it pointed out that the inquiry as per the POSH Act is supposed to be a full-fledged enquiry, similar to a disciplinary inquiry in cases of misconduct.[21]

II. Another provision requires the discovery and production of documents.[22] This, again, is not maintainable, as harassment of the employee could have been perpetrated through the internet and acquiring evidence for such is difficult. WhatsApp texts could be deleted, fake emails with no link to the owner could be made, a third party could enter the victim’s workplace to perpetrate such a crime, and listening to phone calls would require permission. In these circumstances, the production of evidence and necessary documents to prove the presumed innocence of the alleged perpetrator would be tricky. Furthermore, delivering judgement on the basis of available documents or evidence, without going beyond the necessary means would be an injustice to both the victim and the perpetrator. The totality of evidence not being considered in an inquiry is likely and has been raised as a contention in the past.[23] Lastly, it will also not abide by the principle of proportionally, which contends that while regulating the exercise of fundamental rights, the least restrictive measures have to be taken by the administrator to achieve the object of legislation,[24] as in this case, the POSH Act.

All things considered, the inquiry the procedure adopted to deal with the complaints of sexual harassment at the workplace has assumed a sacrosanct position in law and cannot be undermined under any pretext whatsoever. Further, it has been made clear that fairness and reasonableness are inalienable parts of any procedure established by law;[25] therefore, the constitutional mission of equalization would not be achieved fully due to the general ignorance of the law,[26] or to that extent, by a blatant disregard in its implementation procedure. Thus, a policy change is needed in this context to secure the rights of an alleged perpetrator; so justice, if found guilty, could be rightfully delivered.

D. CONCLUSION 

“Writing laws is easy, but governing is difficult.” — Leo Tolstoy
From the thorough scrutiny of various provisions presented in this article, two things are quite evident: First, there exists legislation capable of combating harassment to female employees even in these extraordinary times, and then some; however, what lacks herein, is the proper implementation of its provisions. It is the duty of the legislature to pass cogent legislation; which they did. It is also the duty of the judiciary to impart justice based on this legislation; which they did.[27] But it is also the responsibility of an employer, keeping in mind the changed circumstances, to take every possible measure in order to implement this act—for all genders, which bring us to point two; harassment could be of any gender and is not limited to females; therefore, the inclusion of other genders in the anti-sexual harassment policy of an enterprise should also be done. Furthermore, since the act does not acknowledge other genders, the IC, when in the process of imparting justice should try to ensure the rights of other genders are not curtailed. 
A safe working environment has been recognized by the International Labour Organisation as an indicator for a decent work environment.[28] To ensure the existence of this environment, Vishaka Guidelines were put in place over 23 years ago, which were superseded by the POSH Act, but both shared the same spirit. So perhaps it isn’t only the guidelines which have to be followed. The spirit of these legislative drafts, their vision and their mission, i.e., to create a safe working environment, should also be realized. To quote Salmond, “The essence of law lies in the spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it.” Keeping that in mind, it has to be understood that calling a workplace synonymous to a safe place could not be forced upon, but only ensured through constant checks and balances, or in the words of Pulitzer prize winner Charles Duhigg, “It isn’t a war…it’s an embrace.” 

This article is authored by Sanchit Sharma

[1] Rica Bhattacharyya & Prachi Verma, ‘Work-from-home going to stay, even after Covid-19 scare is over’ Economic Times (3 April 2020) https://economictimes.indiatimes.com/jobs/work-from-home-going-to-stay-even-after-covid-scare-is-over/articleshow/74956231.cms?from=mdr accessed 27 August 2020
[2] Susmita Pakrasi, ‘Significant increase in cybercrime against women during a lockdown: Experts’ Hindustan Times (New Delhi, 3 May 2020)https://www.hindustantimes.com/india-news/significant-increase-in-cybercrime-against-women-during-lockdown-experts/story-QNPwq5Jr1iAkAXzacLnc5K.html accessed 29 August 2020
[3] Vidya Akhave vs. Union of India and Ors. 2017 (1) Bom CR 518
[4] Section 24, Clause (a), POSH Act, 2013
[5] Section 19, Clause (c), POSH Act, 2013
[6] AIR 2013 SC 93
[7] Id.
[8] Nitish Desai Associates, ‘India’s Law on Prevention of Sexual Harassment at the Workplace’ (2019) 1 <http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Papers/Prevention_of_Sexual_Harassment_at_Workplace.pdf > accessed 24 August 2020.
[9] Saurabh Kumar Mallick v Comptroller & Auditor General of India & Anr 151 (2008) DLT 261; Jaya Kodate v Rashtrasant Tukdoji Maharaj Nagpur University LNIND 2014 BOM 1430
[10] Desai Associates, Supra note 8, at 1. See also: Versha Sharma, ‘Constitutional Provisions Relating to Women and International Instruments on Rights’ (2001-02) 16-17 ALJ <http://www.scconline.com/DocumentLink/EUwz9BJZ> accessed 25 August 2020.
[11] Versha, Id., at 177.
[12] Saurabh Kumar Mallick v. Comptroller & Auditor General of India 151 (2008) DLT 261
[13] Section 2, Clause (n), POSH Act, 2013
[14] Nisha Priya Bhatia vs. Union of India (UOI) and Ors. AIR 2013 SC 93
[15] Anjali Varma, ‘Dealing with sexual harassment in the virtual workplace’ Hindustan Business Line (22 April, 2020) https://www.thehindubusinessline.com/opinion/dealing-with-sexual-harassment-in-the-virtual-workplace/article31403719.ece accessed 29 August 2020
[16] Ellison v. Brady (1991) 9th Circuit, 924 F.2d, 872
[17]Subhani Muhammad Imtiaz, ‘Does Work Place Sexual Harassment Matter?’ (2012) Munich Personal RePEc Archive MPRA Paper No. 39103, 4 <https://mpra.ub.uni-muenchen.de/39103/1/MPRA_paper_39103.pdf> accessed 26 August 2020
[18] Section 14, POSH Act, 2013
[19] Section 11, Subsection 3, Clause (a)
[20] Vidya Akhave, Supra note 3.
[21] L. S. Sibu vs. Air India Limited and Ors. (2016) 2 KLJ 434
[22] Section 11, Subsection (3), Clause (b), POSH Act, 2013
[23] Vidya Akhave, Supra note 3.
[24] Id.
[25] Nisha Priya Bhatia, Supra note 14
[26] Versha, Supra note 10, at 177.
[27] Supra note 3;

Supra note 6; 
Supra note 9; 
Supra note 12; 
Supra note 14; & 
Supra note 21.
[28] International Labour Organisation, ‘ DECENT WORK INDICATORS GUIDELINES FOR PRODUCERS AND USERS OF STATISTICAL AND LEGAL FRAMEWORK INDICATORS’ (ILO, December 2013) <https://www.ilo.org/wcmsp5/groups/public/—dgreports/—integration/documents/publication/wcms_229374.pdf> accessed 29 August 2020

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