FAQ: Am I Protected Under Sexual Harassment Laws During WFH?

What must you do if you face sexual harassment during work from home? Experts answer.

The coronavirus pandemic has brought in a paradigm shift in the way we work – bringing work spaces into our homes.

So, what should you do if you are subjected to sexual harassment during work from home (WFH)? What non-physical activities constitute as sexual harassment?

The Quint spoke to lawyers Jyotica Bhasin and Malavika Rajkumar to understand how the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 – or POSH Act – works in the WFH scenario.

Here’s all you need to know. All answers are based on responses from the lawyers.

Does the POSH Act recognise WFH?

Yes, it does. The ‘workplace’ doesn’t necessarily mean the physical space of an office (or, when it comes to domestic workers, the dwelling place or house they work at), but also covers any place visited by an employee arising out of or during the course of their employment. A person’s home becomes the notional extension of this.

What forms of non-physical actions are considered sexual harassment?

• Demanding or asking for sexual favours – this could be verbal, or through email or text message, or even of an implied nature, such as indicating that not providing a sexual favour could adversely impact a woman’s career, or that doing the favour would be beneficial to her
• Saying something that’s sexual in nature, such as overt sexual innuendos, offensive jokes, remarks about a person’s sexual orientation or sex life
• Showing pornography
• Any other unwelcome physical, verbal or non-verbal conduct with sexual overtones
• Creating a hostile work environment for a woman, in connection with any of the above

My colleague is flirting with me online. Is that sexual harassment?

If the act of flirting makes the person uncomfortable and is seen as an unwelcome behavior, then it constitutes as sexual harassment. However, if the flirting is consensual, it is not considered sexual harassment.

Can you give me some examples of scenario which can constitute as sexual harassment?

What should I do if I am facing sexual harassment?

• Before filing the complaint, take as many screenshots and record as many conversations as possible
• The woman employee must then approach the Internal Complaints Committee (ICC) or Local Complaints Committee (LCC)
• The respondent will be issued a notice within seven days on the receipt of complaint
• Inquiry into the complaint must be completed within 90 days
• The employer must fully implement the orders of the ICC within 60 days

What is the role of an ICC?

If you wish to make a complaint to an organisation with less than 10 employees, or against someone for whom you work in any other capacity, or the employer, you can approach the LCC which has been constituted at the district-level by the government.

How do I know if my workplace has an ICC?

It is mandatory for any organisation which has more than 10 employees to have an ICC. If your HR says there is no ICC in your organisation, you must encourage them to set one up.

What if there is no ICC or LCC? What option do I have left?

In this case, you can approach a local police station and file a complaint. However, you have to note that the sexual harassment allegation then becomes a criminal complaint and not a civil one, and will have sections under the Indian Penal Code.

Is there a time limit within which a complaint must be filed?

A complaint generally needs to be filed within three months from the date of the alleged incident of sexual harassment (in case it involves a series of incidents, the most recent incident needs to be cited). However, this can be extended up to six months, if the ICC acknowledges the prevailing circumstances prevented the woman from filing complaint earlier.

How does the ICC hold proceedings during the pandemic?

The ICC now holds the meetings online, while seeking permission from all parties involved to record the call. A copy of the call is then emailed to the complainant and respondent, and an acknowledgement is sought from them.

What are the remedies available under the Act?

The remedies available under the Prevention of Sexual Harassment at Workplace Act, 2013 are either interim relief and/or compensation.

• The aggrieved woman or the respondent can be transferred. However, given that this would be a Work From Home scenario, they could be made to work on different teams
• The respondent could be placed on suspension
• The aggrieved woman could be granted leave for a period of up to three months
• Any other order that would mean the respondent does not contact the woman often
• The ICC also has the power to recommend a salary cut, stall on appraisal etc
• However, it is to be noted that this is based on recommendations by ICC

Is it sexual harassment if someone makes a sexually charged comment to someone else about me, but doesn’t say this to me?

No, unfortunately. The comment has to be made to the complainant for this to constitute sexual harassment.

Can the person face jail term if they are found guilty?

Can I file a police complaint even if I have approached the ICC?

Yes, you can. Section 354A of the Indian Penal Code specifically deals with sexual harassment (not just at the workplace), and depending on the conduct, you could also file a complaint with the police for stalking (354D), voyeurism (354C), among other things.

Can a man file a complaint of sexual harassment against a woman?