Definitions
How is sexual harassment defined under POSH Act?
According to the POSH Act, any of the following unwelcome behaviors is defined as sexual harassment:
- Physical contact and advances.
- Demand or request for sexual favors.
- Making sexually colored remarks.
- Showing pornography.
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
It is also considered sexual harassment if any woman employee is subjected to any of the following:
- Promise of preferential treatment in the employment in return of a sexual favor.
- Threat of detrimental treatment in the employment for denying a sexual favor.
- Threat about the present or future employment status for denying sexual favor.
- Any behavior/act with sexual nature that interferes with an employee’s work or creates an intimidating, offensive or hostile work environment.
- Any kind of humiliating treatment that relates to any behavior that has explicit or implicit sexual undertones. The kind of treatment that is likely to affect the health or safety of the woman employee.
What is Workplace according to POSH Act?
The POSH Act defines workplace as “any place visited by the employee arising out of or during the course of employment including the transportation facilities provided by the employer”. This includes:
- The premises of any establishment owned and run by the government or private parties.
- Any place owned by individuals or self-employed workers and engaged in production and sale of good or providing service.
- A dwelling place arranged by the employer, like house, hostels and hotel rooms.
- Any kind of office sponsored entertainment, like team dinner or outing.
- All virtual or online platforms used by employees to connect with each other during or outside work hours and
- Any place the employees are at when working remotely.
Is Home Considered Workplace When Working Remotely?
With working from home becoming the new normal due to the Covid impact, Corporate India has seen a shift in the concept of workplace. Since the majority of the workforce started working from home, the boundary between office and home is practically non-existent. Is home considered as a workplace? Yes!
POSH Act recognizes home as workplace because it is a “place visited by the employee arising out of during the course of employment”. This means if employee is subjected to sexual harassment when working from home, her organization is obligated to redress the grievance.
This is significant because there was an increase in sexual harassment cases when people started working remotely. Stalking, sharing of inappropriate images and videos, Zoom bombing, sexist or derogatory WhatsApp messages, pressurizing lady employees to come on video calls are some of the many ways employees were subjected to harassment when working from home.
Courts in India have also made observations emphasizing that home of the employee is covered under workplace when working from home.
In the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, Delhi High Court held the following:
“It is imperative to take into consideration the recent trend which has emerged with the advent of computer and internet technology and the advancement of information technology. A person can interact or do a business conference with another person while sitting in some other country by way of video conferencing. It has also become a trend that the office is being run by CEOs from their residence. In a case like this, if such an officer indulges in 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.”
Who is an Employer according to POSH Act?
An employer is any person discharging contractual obligations with respect to his or her employees. As per the POSH Act, here are the three definitions of employer:
- For a Government or a local authority: An employer for a dwelling place or house is “head of the department, organization, undertaking, establishment, enterprise, institution, office, branch or unit specified by the Government or the appropriate local authority.”
- For a dwelling place or house: An employer is the “a person or a household who employs or benefits from the employment of domestic worker, irrespective of the number, time period or type of such worker employed, or the nature of the employment or activities performed by the domestic worker.”
- For any other establishment: Employer is any person responsible for the management, supervision and control of the workplace. This includes the person or board or committee responsible for formulation and administration of policies for such organization.
Features
What is the scope of POSH Act?
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted as an attempt to ensure a woman’s right to live with dignity and the right to carry out any occupation. The POSH Act provides protection against sexual harassment for every woman who has visited a workplace. That means, a woman can complain if she faces sexual harassment in her workplace or a workplace of another person.
POSH Act is also applicable to every public/private establishment that carries out any commercial, vocational, educational, entertainment, industrial or financial activities in the whole of India. This includes organized and unorganized sector and non-governmental organizations. Yes, the maid who works in your home is protected by the POSH Act.
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