With women entering the mainstream workforce with full motion, there was a greater need for an effective antisexual harassment law for women at workplace in India. The Supreme Court of India for the very first time in its landmark judgement Vishaka & Others Vs. State of Rajasthan dealt with the question of safety of women from any kind of sexual harassment at the workplace and laid down guidelines, famously known as “Vishaka Guidelines” to address and deal with the same, which inter alia mandated for every employer to set up an internal complaint committee and provide a mechanism to redress grievances pertaining to workplace sexual harassment. The Supreme Court also noted the absence of appropriate legislation specifically addressing the issue of workplace sexual harassment and issued directions to the Union of India to enact an appropriate law for combating workplace sexual harassment. Vishaka Guidelines were later superseded by the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the “POSH Act”), enacted in 2013 by the Ministry of Women and Child Development, i.e. after 16 years following the Vishaka Judgement. The key objective of the POSH Act is to prevent and protect women against sexual harassment at workplace, while also ensuring effective and time bound redressal of sexual harassment complaint made by a complainant.

The POSH Act defines ‘sexual harassment’ to include unwelcome sexually tinted behaviour, whether directly or by implication, such as (a) physical contact and advances, (b) demand or request for sexual favours, (c) making sexually coloured remarks, (d) showing pornography, or (e) any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. The aforesaid definition is not exhaustive and companies in India are free to include certain other acts amounting to sexual harassment or behaviour or circumstances that may amount to sexual harassment. The POSH Act further provides for certain circumstances, among other circumstances, if they occur or are present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment. The definition of an ‘employee’ under the POSH Act is fairly wide to cover regular, temporary, ad hoc employees, individuals engaged on a daily wage basis, either directly or through an agent, contract labourers, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied. Interestingly, the POSH Act introduces the concept of ‘extended workplace’ which is in contrast to the concept of traditional office set-up.

‘Workplace’ under the POSH Act is defined to include any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer. In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, the respondent was facing departmental inquiry for allegedly indulging in sexual harassment of his senior woman officer. The respondent contended that as the alleged sexual harassment and misconduct took place at an official mess and not at the workplace, he cannot be accused of sexual harassment and owing to the seniority of the woman officer, no favour could be extracted by the respondent from the complainant, hence not an act of sexual harassment. However, the Delhi High Court while concluding, held that the official mess where the employee was alleged to have been sexually harassed definitely falls under ‘workplace’ for the detailed reasons set forth in the judgment.

After the POSH Act and Rules came into effect, Indian legal landscape witnessed tremendous changes. Indian companies started putting in place a written policy on Sexual Harassment broadly based on the POSH Act and has been progressive in implementing it and the POSH Act and Rules framed thereunder. There is a greater awareness of the issue of sexual harassment at workplace now, which has created a safe and secure environment for women by preventing, prohibiting, and redressing instances of sexual harassment at workplaces in India. That said, there is still lack of clarity on various aspects pertaining to the POSH Act, including what constitutes sexual harassment, procedure of investigation, safeguards available to the victim, how to handle wrong or malicious complaints, legal or criminal consequences of sexual harassment etc. The understanding of the difference between terms ‘harassment’ and ‘sexual harassment’ is extremely important. On one hand the term harassment in common parlance is any situation or act that makes a person uncomfortable to work and creates a hostile work environment. On the other hand, term sexual harassment is any situation or act which is sexually abusive in nature and thereafter creates a hostile work environment in an organization. Therefore, it is imperative to draft POSH Policy with care and diligence, keeping in mind the following key aspects, including virtual or digitized sexual harassment, which companies in India are dealing with owing to employees working from home or remotely through electronic/ digitized platforms:

• While the POSH Act is applicable to only women and does not offer protection against sexual harassment to other gender including transgender, it may be worthwhile to have the POSH Policy which is gender neutral, specially in the era of globalization.
• The POSH Policy must have clear definitions in line with the POSH Act, including what constitutes sexual harassment, behavior or circumstance, constitution of IC must be clear and names of IC members should be made available in the POSH Policy itself and the procedure for right from lodging a complaint to completion of investigation within specified timelines and delivery of order must be set forth with clarity and without any ambiguity. The employer must check whether their current POSH Policy contains provision pertaining to lodging an online complaint within the organization. With the outbreak of COVID-19, many companies have resorted to working from home or remote location. While some companies have drafted a well-informed work from home policy which contains provisions of POSH, while working from home or remotely or connects with the existing POSH Policy, others have revised their existing POSH policies to update / include provisions pertaining to any sexually colored remark or making any advance of sexual nature on electronic medium, lodging an online complaint/ email, conducting online investigation (via video conferencing or phone and written or electronic recordings of it be maintained) with the main focus on protection of confidential information by including privacy clause to ensure protection of confidential information, complainant, respondent, witnesses, evidence placed on record, details of investigation process etc.
• POSH Policy must also define workplace clearly. As mentioned above, with employees working from home, whether the existing POSH Policy acknowledges the same or virtual sexual harassment or any work done or e-interaction with fellow colleagues, seniors or third party on electronic platform such as Skype, WhatsApp video calls, M-teams etc. while working from home or during the course of her employment. Further, employee must be aware if any sexual harassment incident has happened while working from home, which is now her workplace, through electronic medium such as on email, audio call or video conferencing, such employee is well within her rights to lodge a complaint with the IC.
• The POSH Policy should clearly specify timeframe of the complaint process. Some companies even provide a format for easy understanding of complainant. The companies must follow the timeframe specified therein including handling of any complaint filed via e-mail by employee working from home. This timeframe has to be adhered to even if the complaint has been filed by an employee working from home or in remote location.
• The procedure to communicate the findings of the investigation should be mentioned along with procedures pertaining to filing an appeal. Companies may also consider providing compensation procedures for the complainant.

The POSH Act also mandates employer to take necessary steps to create awareness among its employees regarding issue of sexual harassment, prevention and redressal of the same by holding on-site sessions, e-learning sessions, posters and banners or a video on the same. While holding any awareness session, employers must ensure that all employees attend the same including those who are not available on site. During the times of COVID-19, with employees working from home or remotely, e-learning sessions are excellent tool to create awareness against sexual harassment. Employees must be made aware of difference between harassment and sexual harassment or inappropriate behaviour that constitutes sexual harassment. Employer must also make efforts to create awareness regarding ‘virtual’ etiquettes, sending text messages or attending an audio or video call, dress codes and promoting a zero-tolerance policy for both on-site of virtual sexual harassment.