In a two-part series, lawyer Chethana V revisits the existing contours of sexual harassment in the workplace and how technology and current circumstances have re-drawn boundaries.

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Voices Sexual Harassment Sunday, October 24, 2021 - 13:52

Trigger Warning: Sexual Harassment, Rape

Note – This article is not a substitute for legal advice or consulting with a lawyer, who will be in a better position to advise you with respect to the facts and circumstances of your case, but merely a tool to help the reader understand better about laws relating to prevention of sexual harassment in the workplace. 

The coronavirus has created lasting changes in the world. Companies have gone online, employees are required to log in from their homes, and the definition of a workplace has changed. Workplace colleagues are interacting on social media, employers are coming across tweets that their employees post on Twitter, dating apps are matching people who work in the same organisation. Companies are also navigating towards “mentorship” models where senior colleagues mentor juniors, often in closed settings. These layers increase the complexity of workplace relations. In this context, it is important to revisit the existing contours of sexual harassment in the workplace and how technology and current circumstances have re-drawn boundaries.

In a typical workplace, a session on prevention of sexual harassment will be greeted with any of the following – “Sigh, there goes an hour of being productive” or “This again?” and “We all know what to do, nobody needs this.” However, the reason why these sessions are conducted is the same reason we have fire-drills. Hopefully, you will never have to use the knowledge, but if there ever is a situation where you do – you will not be unprepared.

A Brief History of Anti-Sexual Harassment Laws in India

In 1992, Bhunwari Devi worked as a social worker in the state’s Women Development Programme in Rajasthan. She was on duty when she tried to prevent a child marriage from taking place. She was brutally gang raped by a group of men from the dominant caste community who participated in the child marriage ceremony. A case was filed in the Supreme Court of India in 1997 (Vishaka versus the State of Rajasthan and others) highlighting this incident. 

The lack of a framework, regarding sexual harassment faced by Indian women in their workplace, was recognised, and certain guidelines were passed by the Supreme Court that was in effect, until a comprehensive law regarding sexual harassment in the workplace was implemented. These guidelines were called the “Vishaka Guidelines” and included the definition of sexual harassment, disciplinary action for sexual harassment, and the formation of a complaints committee to investigate complaints of sexual harassment.  

POSH Act, 2013

The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (also referred to as the “POSH Act”) came into existence in 2013. It has its foundations in the Vishaka Guidelines, and establishes a mechanism for dealing with sexual harassment complaints in the workplace. Under the POSH Act: 

>The person who can file a complaint has to be a woman, the POSH Act is not gender neutral.

>Any workplace with over 10 employees should have an Internal Committee  (formerly known as the Internal Complaints Commitee), which will deal with sexual harassment complaint.

>When a complaint is filed, the Internal Committee (IC) will conduct an inquiry and forward their recommendations to the employer with respect to their finding of guilt or innocence, and the consequences of the same. 

What is sexual harassment? 

Under the POSH Act, sexual harassment consists of explicit acts like physical advances, demanding or requesting for sexual favours, showing pornography, making sexually coloured remarks, sending sexually explicit messages, and any other unwelcome conduct that is sexual in nature in a workplace. It also includes implicit acts, where the refusal to engage in sexually inappropriate behaviour is coupled with threats that can affect employment, or create a hostile work environment.

Illustration - A sends inappropriate forwards that have sexual content to their employee, B.  B does not reply to it, and ignores it. A invites the entire team, except B, to the closing of a deal. When B asks why they are not invited, A tells them that the others replied to the messages, whereas B did not. 

What is a workplace? 

A workplace is not limited to the brick and mortar walls of the office. It extends to wherever you go, during the course of your employment. It extends to commute in office-provided transportation, conferences and meetings, and off-site visits. 

It also includes zoom calls or other online team meetings.

Illustration - C passes inappropriate and sexually coloured comments about D’s attire during a zoom farewell party thrown by the office. D is extremely uncomfortable, and asks C to stop, but they do not. D is confused whether the online party falls under the definition of a “workplace” to report it. Since the party was thrown by D’s employer, and D took part in the online party by virtue of their employment, the actions of C will be considered as sexual harassment in the workplace. 

What is the Internal Committee? 

Under the POSH Act, the IC are a group of people who look into complaints of sexual harassment, and come up with recommendations to the employers about the consequences of the same. There should be a minimum of four people in the IC, and it should be headed by a senior woman employee, and have at least one external member. 

The composition of the IC should be informed to all the employees, including the contact details of the chairperson and the committee, so that employees know where they can send their complaints in or who to reach out to for any clarification. 

Illustration - E has been subjected to sexual harassment in their workplace, and they have filed a complaint. The IC consisted of two people – E’s superior and a HR personnel from the same organisation. The constitution of this IC goes against the POSH Act.

I think I faced an act of harassment. What can I do? 

If it is possible to speak to the person who has committed the act, you can express your discomfort and ask them to stop. If they do not stop, or if it is an act of grave magnitude, or if the person is somebody you are not comfortable confronting, a complaint can be given to the IC. 

Check if your company has their own sexual harassment prevention policy. If they do, a good place to start is reading through it. The details of the Internal Committee will be provided in that, and the email ID or person to whom you can complain will also be mentioned. 

If your company does not have its own anti-sexual harassment policy but has more than 10 people working in it, reach out to the HR representative or your superior, and ask where you can file the complaint. 

If your company has less than ten people working in it, the employer is not obligated to constitute an IC. You can complain to the Local Committee (or the LC), which is an entity that is supposed to be constituted at the district level by the government. Presently, there is no clarity on the functioning of the LC, and it seems to be a solution that is only present on paper and not in practice. There is no readily available information about the LC online, the members, and how to file a complaint with the LC. 

Workplace Harassment and Sexual Harassment 

It is important to note the distinction between workplace harassment and sexual harassment. Workplace harassment can exist in many forms and extend across caste, class, and gender barriers. Sexual harassment is conduct that has a sexual overtone, and the discomfort exists because the person feels uncomfortable because of the sexual subtext – this need not be explicit, and can also be implied from the circumstances, the people involved, their equations in the workspace, power structures, and the act itself.  

Illustration - F calls and messages G till late into the night to enquire about assignments and deadlines even though the work hours end at 8 pm for all employees. F continues to do so even after G tells them that the same is disturbing and invasive. This is workplace harassment. 

Illustration - F, who is G’s superior, calls and messages G till late into the night to enquire about work, and proceeds to ask G personal questions about their life, their partner, and other details that G finds invasive. F also asks G out on a date during these calls, even though G repeatedly requests F to act professionally. While nothing sexually explicit has occurred, this is a clear abuse of power-hierarchy, and a hostile work environment being created by a superior. Constantly asking a colleague out romantically, after they have been clear about their disinterest and refusal also amounts to harassment that can become sexual harassment depending on the further facts and circumstances of the case. 

Illustration - H keeps saying G has put on weight in front of their other colleagues during office lunch hours. G asks them to stop, however they continue making such comments. This is workplace harassment. 

Illustration - One day, while commenting about G’s weight, H makes fun of how G’s clothes have become tighter around their chest, and how it is hugging their body. This is an observation about G’s body, and a sexual overtone can be implied because of the nature of the comment. This can be considered as sexual harassment. 

When can I give a complaint? 

A complaint has to be given within three months of the act of harassment taking place. However, if the IC feels the person had a valid reason for filing the complaint at a later date, the same can be considered even after the expiry of the 3 month period. 

Read part two: How to file a workplace harassment complaint and what happens during the inquiry

​​Chethana is a lawyer practising in family courts, trial courts, and in the Madras High Court. She also conducts POSH training sessions and assists in drafting policies for organisations. Her email ID is advchethana@gmail.com.

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