“Cases of online harassment have seen an increase by five times since the outbreak of the Covid-19 pandemic”, as disclosed by the National Commission for Women. There has been a paradigm shift from physical offices to Work from Home (WFH) and business meetings have been taking place over online platforms such as Zoom, Skype, Meet or through any other digital medium. This being a blessing for majority of the working professionals, has turned to be a nightmare for some facing harassment online.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 of India (“POSH Act”) was enacted in December 2013 and has completed more than 8 years as of now. However, it is still facing unique challenges in the post-pandemic world due to the inclusive nature of the terms “sexual harassment” and “workplace”. In this article, the author has discussed about the sexual harassment taking place in the online workspace.
Applicability of POSH on Virtual Sexual Harassment
The concept of workplace goes beyond the corporate offices as defined under Section 2(o) of POSH Act. The definition includes “a dwelling place or a house” also, which can cover the employees working from home or any other place. The definition also covers any place to be visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey.
Even the courts have acknowledged the fact that incidence of sexual harassment need not be taken place only at the office where employees are working. In the matter of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, the Bombay High Court clarified that the definition of the term “workplace” is inclusive and deliberately kept wide to ensure that any area where women may be subjected to sexual harassment is not left unattended or unprovided for.
Delhi High Court in the case of Saurabh Kumar Mallick v. Comptroller & Auditor General of India observed that in order to be a workplace, it is not necessarily a place where the actual work takes place and thus considered the concept of “extended workplace” to give it a broader sense.
From the foregoing, it is amply clear that the workplace has a much broader scope and is not limited to just the office of employer. Now, Corporate world was caught off guard when covid pandemic occurred and it resorted to a “work from home” policy to keep the work going. This policy in the ‘new normal’ has also given rise to a lot of new ways of sexual harassment because even if employees are not meeting physically they have to communicate in the virtual world.
In 2021, High Court of Rajasthan dealt with a case of sexual harassment in the present digital world in the matter of Sanjeev Mishra vs. Bank of Baroda. In this case, a charge sheet was issued with respect to sending messages after working hours wherein the complainant who had lodged a complaint for sexual harassment was in another State. The court held that “In the present digital world, work place for employees working in the Bank and who have earlier worked in the same Branch and later on shifted to different branches which may be situated in different States has to be treated completely as one work place on a digital platform. Thus, if a person may be posted in Jaipur and acts on a digital platform harassing another lady who may be posted in a different State, it would come within the ambit of being harassed in a common work place.”
It is evident from the above judgements and the definition of the term “workplace” that virtual harassment also falls under the ambit of POSH Act.
Kinds of Sexual harassment in work from home scenario
It is pertinent to understand what sexual harassment exactly includes in this virtual world because it has been considered to be safe in comparison to the physical corporate offices when it certainly is not.
Various forms of sexual harassment are unique in the digital workspace which were not known/ discovered in the pre-pandemic era. MeTooEP, a European Parliament-based campaign group conducted a survey to obtain data and evidence about “new forms” of sexual harassment and to assess the safety of “online workspace” for women. The survey disclosed “zoom-bombing” as a new form of sexual harassment. Further, sending inappropriate messages, voice notes, pictures or behaving inappropriately during audio or video calls are certain instances of virtual secual harassment.
The definition of “Sexual harassment” includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature
All of the above (except physical contact) will also fall under the ambit of Sexual harassment in the work from home setup. Therefore, unnecessarily calling after office hours, making derogatory comments/ jokes, inappropriate dress code, taking screenshots during virtual meetings are also examples of online sexual harassment.
Suggestions for employers:
First and foremost, the employers need to acknowledge that sexual harassment happens in digital environment also and therefore, such inappropriate acts shall attract the provisions of the POSH Act and may also fall within the ambit of Information Technology Act, 2000.
There is lack of awareness as to what will be considered as online sexual harassment because the working culture in the post-pandemic era is entirely new for both the employers and employees. Therefore, the Anti-Sexual Harassment Policy should also include details regarding harassment in the remote working environment to make the employees aware as to what amounts to sexual harassment.
In physical work space, we can find evidences through CCTV cameras, other employees witnessing the incidents, etc. However, in virtual space, evidences can only be extracted through the digital gadgets.
The employees must be encouraged to report the incidents of harassment even if there is no actual evidence of proving the same. Special sessions/ workshops can be conducted for the employees to make them aware about the harassment instances which may take place in the digital environment, at regular intervals. The organizations might also engage a counselor who can guide the employees who are facing harassment but resort not to file a complaint out of fear of losing job or embarrassment.
Following steps should be taken by the employer to show its commitment towards a harassment-free workspace in the virtual era: