POSH Updates – The POSH Act Now Includes a Virtual Workplace as Well

Considering the quick and drastic shift in our work environments because of the deadly pandemic we are in, has undoubtedly brought many issues in the virtual world to the forefront. This includes sexual harassment and other cybercrimes. According to a survey conducted by Southeast Asia, Freedom of Expression Network and the Never Okay Project, it was found that 86 of 315 respondents claimed that the male employees in their company sexually harassed them while remotely working. Hence, the rising numbers of cybercrimes cases against women led to the question of whether the PoSH Act includes a virtual workplace. The answer is YES; the PoSH extends its definition of ‘workplace’ to remote working environments.

 

View this post on Instagram

 

A post shared by Ungender (@ungender.in)

A more detailed explanation is available in the definition given in Sections 2 and 3 of the Act. Section 3 has broadened the definition of sexual harassment by terming it both explicit and implicit forms will be covered under this definition. The act states the following points:

A) Promise of preferential treatment in victim’s employment

B) Threat of detrimental treatment in victim’s employment

C) Threat about the present or future employment status

D) Interference with work or creating an intimidating or offensive or hostile work

E) Humiliating treatment likely to affect victim’s health or safety.

Hence, this definition covers sexual and inappropriate messages, cyberstalking, passing sexual comments, inappropriate comments on a person’s virginity, body type, physical qualities, etc.

 

View this post on Instagram

 

A post shared by Ungender (@ungender.in)

On to the wider definition of ‘workplace’, under Section 2(o), it defines it as “any place visited by the employee arising out of or during employment”. In cases like Weaver v. Tredegar Iron Coal Co, the course of employment cannot be confined to the place or time of a specific form in which employees are employed to work. Therefore, the “workplace” is widened to remote places to provide justice to those affected by sexual harassment. Furthermore, Section 2(o) sub-clause (vi) “states a dwelling place or house.”  The motive of this law is to ensure that anyone working from a form of accommodation like their rented/leased home, their own home, or a company leased home.

The case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India, Delhi High Court held that the Vishakha guidelines, which initially defined what a workplace is, cannot be taken in the literal sense and must widen it to prevent sexual harassment cases from taking place in unconventional workplaces with the rise in internet technology.

Written by: Tharika Sai

Ungender Insights is the product of our learning from advisory work at Ungender. Our team specializes in advising workplaces on workplace diversity and inclusion. Write to us at contact@ungender.in to understand how we can partner with your organization to build a more inclusive workplace.