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Sexual Harassment in the Dynamic Workplace

During these unprecedented times, Work from Home has slowly but steadily become the new normal. With the social distancing norms in place, Work from Home has now become the general rule instead of an exception to the general rule.

Even though the workplace has become dynamic by shifting from physical to a virtual one, the menace of harassment unfortunately remains constant and sexual harassment at workplace still continues to be a problem.

In this article, we seek to answer some of the basic queries pertaining to sexual harassment in the virtual workplace:

  • Whether workplace as defined in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 includes  virtual workplace?
  • What are the non - physical acts that constitute sexual harassment in the virtual workplace?
  • What are the challenges faced while dealing with cases of sexual harassment at the virtual workplace?
  • How the employer can prevent sexual harassment in the virtual workplace?

Q. Whether workplace as defined in Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 includes virtual workplace?

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the Act) is the sole legislature exclusively for protection of women at workplace in India. Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any workplace'.

This raises a question: Whether the virtual workspace qualifies to be a workplace' in terms of the aforementioned Act?

The definition of workplace under Section 2(o) of the Act, is an inclusive and non-exhaustive definition and includes any place visited by the employee arising out of or during the course of employment, including a dwelling place or a house.

From the past judicial pronouncements, it is understood that labour legislations being beneficial legislations, are construed to the advantage of the working class, in a liberal and non-restrictive manner. Such legislations attract the application of the principle of notional extension', to serve their intended objective.

In this context, in the landmark case of S S Manufacturing Co. vs. Bai Valu Raja and Others[1], the Supreme Court held that the theory of notional extension is applicable to an employer's premises. It opined that the employer's premises cannot be restricted to the strict perimeters of the office space and could be extended beyond such physical territory considering the facts and circumstances of each case.

In the case of Saurabh Kumar Mallick vs. CAG of India[2], the Delhi High Court observed that taking into account the objective of the judgment in Vishaka v. State of Rajasthan[3], a narrow and pedantic approach cannot be taken in defining the term workplace' by confining the meaning to the commonly understood expression office'.

Similarly, in the case of Ayesha Khatun vs. State of West Bengal and Others[4], the Calcutta High Court had recognized that even though workplace had not been defined either in the Vishaka guidelines or in the Vishaka judgment, a logical meaning should be given to the expression workplace' so that the purpose for which those guidelines have been framed, is not made unworkable.

In view of the current situation, many companies are considering work from home as a more viable option than actual working in the office premises, thereby shifting the workplace from office to home.

Since the definition of workplace under the Act, itself envisages the concept of notional extension, and the same has also been supported by various judicial precedents as elaborated above, it can be said that any act of sexual harassment effected virtually in a home working space can be included in the notional definition of a workplace'.

It is needless to say that whether a complaint by an employee working from home falls within the purview of sexual harassment as per the Act shall necessarily be determined considering the facts and circumstances of each case, keeping in mind the dynamic scope of workplace'.

Q. What are the non - physical acts that constitute sexual harassment in the virtual workplace?

The physical distance between the employees has become insignificant with the aid of collaborative applications such as Microsoft Teams, Google Meet, Zoom, Skype etc., and working from home without any physical barrier has now become a reality.

However, in certain cases shifting of workplace from office premises to one's home has also resulted in shifting of harassment to home. The pandemic has created an overwhelming sense of job insecurity in the minds of the people and they don't want to risk their jobs at any cost. As a result, employees considering themselves at a disadvantaged position in the workplace have unwillingly become a prey to sexual harassment.

It is pertinent to note that the Act includes both physical as well as verbal/ non - verbal (non - physical) acts under the purview of sexual harassment.

The Supreme Court in the case of Apparel Export Promotion Council v. A.K Chopra [5] enlarged the definition of sexual harassment by ruling that physical contact was not essential for it to amount to an act of sexual harassment.

The Supreme Court explained that:
sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.

In the digital work platform, the lack of a physical link between people makes it easier for a person to say or do such things that one wouldn't do in person.

Hence, non-physical sexual harassment being predominant in the virtual workplace can take up any of the below mentioned forms:

  • Personal comments on social media handles
  • Email/ texts for sexual favours
  • Unwarranted video calls at odd hours
  • Keeping it casual approach during video calls
  • Cyber stalking
  • Showing pornography
  • Sending unsolicited sexual content on chats
  • Sexual Jokes or Off-Color Comments in the Company Messaging App

Q. What are the challenges faced while dealing with cases of sexual harassment at the virtual workplace?

Employer as well as the employee/ victim face significant challenges while dealing and reporting sexual harassment complaints at the virtual workplace.

Since most of the employees are new to the digital/ virtual working model, the victim finds it difficult to gather evidence on the digital platform and even after gathering evidence, does not want to file the complaint in fear that the case might get the family members involved as the inquiry on the matter shall be conducted online. Victims also have privacy concerns on the security of the digital platforms and do not wish to pursue the complaint.

From an employer point of view, it is difficult for the employer to detect any early sign of sexual harassment at workplace because inappropriate or hostile behaviour has more room to hide in online platforms, and they may be on a channel that the employer isn't monitoring or in a one-on-one or small group messages.

Q. How the employer can prevent sexual harassment in the virtual workplace?

While embracing the technological change, organizations need to evolve, adapt and work towards providing a safe work environment to their employees. In this regard, a stringent policy on prevention of sexual harassment in the virtual workplace should be devised and implemented without any exception.

Sensitisation programs across all level of employees, especially for the supervisors should be conducted. Awareness should be created among employees and they should be apprised on what conduct in the virtual workplace is acceptable and what is not.

Employees should be encouraged to speak up. Multiple avenues for reporting incidents which are safe, secure and simple should be provided to the employees. A robust redress mechanism should be established, and prompt and effective remedial action should be taken on the complaints.

Supervisors should play an active role in paying attention to what's happening on digital communications platforms. In case of an employee who was previously been active, or a vocal participant suddenly is a lot quieter, this is considered as a red flag for probable harassment at the workplace. A common way an employee respond to sexual harassment is by withdrawing, pulling away from work and colleagues. In case such an incident is noted among employees, it may be time for the employer to check in about workplace culture and each worker's sense of safety in their work environment.

The Act of 2013 clearly defines sexual harassment as inappropriate physical as well as gestural and verbal behaviour and applies in the virtual workplace as well. Many a times sexual harassment in the virtual workplace takes a subtle form and people without even realizing, become a victim to it. In this dynamic work environment, employers need to evolve and endeavor to establish a workplace environment that is free from all sorts of harassment.

End-Notes:
  1. AIR 1958 SC 881, (1958) IILLJ 249 SC
  2. Civil Writ Petition No. 8649 of 2007
  3. AIR 1997 SC 3011
  4. Writ Petition No. 905 Of 2011
  5. AIR 1999 SC 625

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