From Workplace To Cyber-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 recruitment in 2012.^[1] 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 organizations had not kept pace until the advent of COVID – 19.^[2] 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.

With the safety protocols recently implemented by the government as well as corporates, WFH has become the new normal for the workspaces all over the world. The advancement in Information and Communication Technology has enabled alternative working arrangements, including WFH, teleworking, telecommuting and remote working, which terms are often used interchangeably to refer to the models of working outside the employers' premises or workplace. The phenomenon of WFH was, in any case, quite common in tech jobs. Technological advancement has redefined workspaces and, as a result, the traditional brick and mortar offices are being replaced by the virtual workspaces.^[3] For example, a survey conducted in March 2020 of 250 large firms in Argentina found that 93 per cent had adopted teleworking as a policy and the Indian business process outsourcing giant, Tata Consultancy Services, reported that around 85 per cent of its 400,000 employees in India and elsewhere in the world were working from home in response to the COVID-19 pandemic.^[4] The Ministry of Home Affairs has also directed corporates to enable employees to 'work from home' as far as possible.^[5]

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")?

To answer this question, it is relevant to examine whether the legislature envisioned the alternative working arrangements and various methods of electronic communication/ e-meeting softwares being used today, e.g. Facebook, Twitter, Zoom, Microsoft Teams, Cisco WebEx, etc., while enacting the POSH Act and POSH Rules in 2013? This issue assumes greater significance in view of the large number of women comprising India's workforce and the absence of a clear policy/regulatory framework to address the present situation.

1. INTERNATIONAL CONVENTIONS/RESOLUTIONS

• Violence and Harassment Convention, 2019^[6]

The Violence and Harassment Convention 2019 is a gender-neutral convention which aims to urge member States to promulgate legislation ensuring and promoting a safe working environment with zero tolerance for violence and harassment. Article 3 of the Convention provides a wider definition of 'workplace' as follows:

"This Convention applies to violence and harassment in the world of work occurring in the course of, linked with or arising out of work:

(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;

(c) during work-related trips, travel, training, events or social activities;

(d) through work-related communications, including those enabled by information and communication technologies;

(e) in employer-provided accommodation; and

(f) when commuting to and from work."

Axiomatically, Article 3 of the Violence and Harassment Convention encompasses incidents of sexual harassment which occur in the virtual interface during "Work from Home".

The Convention has not been ratified by India, and these unprecedented times require that attention be drawn to it.

• Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW")

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 alia, sex. In Vishaka v. State of Rajasthan,^[7] 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.

• United Nation General Assembly Resolution 48/104 on the Declaration on the Elimination of Violence Against Women.

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.

III. DELIMITING THE CONTOURS OF THE "WORKPLACE"

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.

It is settled position, pursuant to the judgment of Hon'ble Supreme Court in Vishaka v. State of Rajasthan,^[8] that sexual harassment at the workplace violates women's fundamental right to equality, right to life and to live with dignity and right to practice any profession or to carry on any occupation, trade or business, which further includes a right to a safe environment free from sexual harassment guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. In the absence of a specific law addressing sexual harassment of women at workplace in India, the Supreme Court, in Vishaka case, had laid down certain guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and the same were followed by employers until the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013. In 2013, after Nirbhaya's case, pursuant to amendments to Indian Penal Code 1860 introduced by the Criminal Law (Amendment) Act, 2013 ("Criminal Law Amendment Act"), acts of sexual harassment, stalking and voyeurism have also been made penal offences.

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 of sexual nature.^[9] 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 or a house.^[10] 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 any age who is employed in such a dwelling place or house.^[11]

The definition of the 'workplace' is a determining factor to understand the scope and extent of application of the Act to sexual harassment complaints by women who are harassed while "Working from Home". As regards a dwelling house, the Act may have limited application as it recognizes 'dwelling place' or 'house' as the workplace of a 'domestic worker' as may be inferred from the definition of 'aggrieved woman'^[12] and 'workplace'^[13] provided in the Act. Furthermore, the report of the Department- Related Parliamentary Standing Committee on Human Resource Development, 239^th Report on the Protection of Women Against Sexual Harassment at Workplace Bill, 2010 (as it was then) ("the Bill, 2010") (the "Standing Committee Report") noted that the Bill, 2010 'did not cover harassment outside workplace like SMS and phone calls to home', thus exposing women to instances of sexual harassment which would intrude into the safety of a woman's house through electronic modes.^[14] In relation to definition of 'sexual harassment', it was noted in the Standing Committee Report as under:

"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):—

"whether verbal, textual, physical, graphic or electronic or by any other actions".

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."

Despite the above recommendations/observations, the words 'graphic' or 'electronic' were not included, though 'non-verbal' conduct was mentioned (and which was, in any case, included in the Bill, 2010), probably because "whether verbal, textual, physical, graphic or electronic or by any other actions" is only referring to the mode or manner in which such "physical, verbal or non-verbal conduct" is made/communicated and may have been considered to be surplusage by the legislature. Section 2(n) (v) of the POSH Act, 2013, reads as under:

"(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature."

Evidently, despite it being brought to the attention of the Parliamentary Standing Committee by the stakeholders and despite the Committee recommending in its Standing Committee Report to include the words "graphic" or "electronic" in the definition of sexual harassment, the Legislature chose not to expressly include the same, thereby leaving it open to the courts to interpret "physical, verbal or non-verbal conduct." The non-inclusion of the words "graphic" or "electronic" should not, in my opinion, be taken to mean that any verbal or non-verbal conduct of sexual nature committed via an online medium would not amount to sexual harassment, as that would run contrary to the very scheme of the POSH Act.^[15] Having said that, if the legislature had expressly used such terms like "graphic" or "electronic" or "any other means" in the POSH Act, as advised by the stakeholders, it would have sent the message loud and clear.

Further, in relation to the definition of "workplace", it was noted in the Standing Committee Report as under:

"6.28 The Committee observes that definition of the term 'workplace' covers all categories of workplaces falling under Government and private sector … On being asked about the viability of including an incident of sexual harassment occurring at a place visited by an employee, the Committee has been informed that women employees may face harassment not only within the physical boundaries of the workplace but even outside it, which may be during or in course of her employment. This may include harassment from a co-worker or from an employee of the workplace visited by her in course of her employment or by a third party at such place. While agreeing with the clarification given by the Ministry, the Committee would like to point out that a very crucial area which strictly speaking cannot be considered a workplace has remained out of the ambit of the Bill thereby leaving the aggrieved woman in situations which may cause harm to her. Very frequent incidents of women employees being sexually harassed during their journey from home to workplace and vice-versa are being reported. The Committee, therefore, feels that vehicles being provided by the employer should also be covered under the definition of 'workplace'. Accordingly, the words 'any vehicle provided by the employer' may be added at the end in sub-clause (iv)."

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."

It is also very evident from the consultation process conducted by the Parliamentary Standing Committee and its Report that 'dwelling place' or 'house' is used in the context of a domestic worker. At the same time, the Parliamentary Standing Committee was mindful of the fact that "women employees may face harassment not only within the physical boundaries of the workplace but even outside it, which may be during or in course of her employment" and therefore the definition of workplace was enlarged to include "any place visited by the employee arising out of or during the course of employment." Although, the said observation or recommendation was made in light of women facing harassment while working on client-sites, or in different offices of the same employer, or in transportation and the legislature specifically did not envisage 'work from home',' telecommuting' or 'teleworking', especially when the word "visited" immediately succeeds "any place". The word "visited" is used in common parlance "to go to place and look at it or to a person in order to spend time with them."^[16] However, the use of the word "visited" is also evolving in relation to visiting a website or an online meeting room. Therefore, it could be argued that the present definition of workplace is sufficient to take into its ambit the "virtual workspace". It can be further argued that POSH Act being a beneficial legislation, any act of sexual harassment taking place in the virtual space, may be construed as taking place at the workplace as defined in Section 2(o) (v), POSH Act, i.e. "any place visited by employee arising out of or during the course of employment."

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.

• NOTIONAL EXTENSION OF 'WORKPLACE' BY COURTS

The theory of notional extension is usually applied to cases under Workmen Compensation Act to ensure the applicability of the beneficial legislation to hold that the course of employment cannot and should not be limited to the time or place of the specific work. In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors.,^[17] the Hon'ble Supreme Court held that by applying the theory of notional extension the employer's premise shall include an area which the workman passes or repasses as part of work. "There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment even though he had not reached or had left his employer's premises."

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 India & Anr.^[18] 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-

1. Proximity from the place of work;
2. Control of management over such place/residence where woman is residing; and
3. Such a 'residence' has to be an extension or contiguous part of the working place.

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.

V. OTHER LEGISLATIONS ADDRESSING SEXUAL HARASSMENT

In addition to POSH Act and POSH Rules, which is a special legislation concerning sexual harassment at workplace, the Indian Penal Code, 1860 and the Information Technology Act, 2000 also criminalize certain non-physical sexually offensive acts against women.

A. INDIAN PENAL CODE, 1860 (the "Code")-

Sexual Harassment- S. 354 A of the Code is a gender specific provision criminalizing the acts of sexual harassment against women.

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, whoever, during an online conference or on a virtual interface does any of the aforesaid acts thereby insulting the modesty of a woman can be held liable under the Code.

B. INFORMATION TECHNOLOGY ACT, 2000-

Publishing, transmitting sexually explicit material- S. 67A penalises any person who publishes or transmits sexually explicit material in the electronic form. In the event of a co-worker transmitting any sexually explicit material through the virtual interface in the workplace, he shall be liable to punishment under the Act.

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

• In light of the above, it is imperative, as short term and immediate measure, for companies to voluntarily revisit its policies to provide for safety of its employees, including but not limited to adequate measures to prevent sexual harassment of women using electronic means, such as:

1. Sensitizing employees and employers as to what constitutes sexual harassment in the new work from home culture
2. Redefining "workplace" in its internal policies to include working from home/house/residential office,
3. Redefining "sexual harassment" to include verbal/non-verbal conduct using electronic means,
4. Prescribe online working hours, e.g. 10AM to 6PM,
5. Make policies to restrict audio/video calls after 6 PM,
6. Prescribe dress codes for men and women to be followed during working hours and thereafter, if the employees are engaging in video calls/ conferencing,
7. Making policies enabling women to choose to turn their camera off during online meetings,
8. Making policies to provide sufficient notice of a video call/conference to the woman employee,
9. Make policies in relation to use of appropriate language by employees,
10. Create online reporting mechanism, e.g. a virtual mailbox or a dedicated email address, to receive and forward complaints to ICC,
11. Hold the awareness programs virtually,
12. Arrange the meetings with ICC virtually,^[20]
13. Appoint a counsellor/psychiatrist to help and support women and to encourage reporting, etc.

These unprecedented times, indeed, require companies to explore new methods of addressing the menace of sexual harassment in the cyberspace workplace. The company policies should aim to sensitize and empower the victims to complain about the sexual harassment irrespective of the medium or place (physical or virtual), especially when the "work from home" culture may be here to stay, after all, post Covid-19.

• As a long term and for the government to clearly legislate and/or amend the POSH Act and Rules to include of WFH/remote working arrangements, working conditions, the rights and responsibilities of employers and workers.