Sexual harassment in a ‘Remote/Digital Workplace’

The total number of sexual harassment complaints at workplaces climbed up by 27% in the financial year ending March 2022 as compared with the previous year, according to data analysis compiled by anti-sexual harassment advisers,

Remote working has become a constant for millions of employees around the globe since the pandemic upended our lives nearly two years ago. As offices shifted to hybrid or fully remote settings, instances of sexual harassment have assumed new forms. Getting unwarranted requests for video calls at odd hours; inappropriate comments on co-worker’s appearance during video meetings; unsolicited/inappropriate communication through company messaging apps; and stalking colleagues on social media are instances of harassment in a virtual work setting.

According to a survey conducted by the International Labour Organisation and its partners in 2022, more than one in five employees (almost 23%) worldwide experienced violence and harassment at work, whether physical, psychological, or sexual.

In 2021, Chairperson of the National Commission for Women (NCW), Rekha Sharma, speaking at the digital dialogue “Addressing Sexual and Gender-based Violence in the Post COVID World”, organised by Gujarat National Law University, said that, following the work-from-home culture induced by the lockdown, the instances of online harassment increased significantly in the absence of “etiquettes of online working.”

She added that “online abuse has continued even after a lockdown in the lack of designated working hours as meetings being conducted at night. Women are suffering online harassment since there are no defined ethics or no etiquettes on online working such as what to wear, and the gestures we make.”

Further, as per the 2020-21 NCW report, it received 26,513 complaints from women, marking a sharp rise from the 20,309 complaints registered in 2019-20, which is an increase of 25.09% in complaints. The total number of sexual harassment complaints at workplaces climbed up by 27% in the financial year ending March 2022 as compared with the previous year, according to data analysis compiled by anti-sexual harassment advisers, Also, as per a 2021 judgment, the Rajasthan High Court held that “with the global shift to the work-from-home model owing to the ongoing pandemic, more individuals and particularly women are finding themselves vulnerable to online sexual harassment.”

It is therefore important to understand what constitutes sexual harassment in a digital space (as many people still assume that harassment occurs only in a shared workplace) and how companies should navigate and effectively address this issue remotely.

Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“PoSH Act”), the primary legislation that seeks to ensure the protection of women against sexual harassment, defines sexual harassment as any unwelcome act or behaviour (whether directly or by implication), namely, physical contact and advances, demand or request for sexual favours, making sexually-coloured remarks, showing pornography, and any unwelcome physical, verbal, or non-verbal conduct of a sexual nature.

Section 3 broadens the concept of sexual harassment by stating that any of the given situations related to sexual harassment may indeed add up to sexual misconduct: implied or explicit (a) promise of favourable treatment in the victim’s career; (b) risk of deleterious intervention in a victim’s work experience; (c) threat about the victim’s present or prospective employability; (d) intervention with work or constructing a threatening, aggressive, or hostile work environment. Further, the PoSH Act defines the workplace to include any place visited by the employee arising out of or during employment, including a dwelling place or a house.

To enforce the applicability of the PoSH Act, sexual harassment needs to occur in the ‘workplace’, but the question is whether sexual harassment occurring during ‘work from home’ comes under the definition of ‘workplace’. Answering the question in the affirmative, the Delhi High Court in Saurabh Kumar Mallick v. Comptroller & Auditor General of India (2008) observed that “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 other people while sitting in some other country using video-conferencing. A narrow and pedantic approach cannot be taken in defining the term ‘workplace’ by confining the meaning to the commonly understood expression ‘office.’

The Delhi High Court observed that the following factors would determine whether the act has occurred in the ‘workplace’:
(a) proximity to the place of work;
(b) control of the management over such a place/residence where the working woman is residing; and
(c) such a residence has to be an extension or contiguous part of the workplace.

Similarly, in Ayesha Khatun v. The State of West Bengal & Others (2012), the Calcutta High Court held that “workplace, in my view, cannot be given a restricted meaning to restrict the application of the said guidelines within the short and narrow campus of the school compound. A workplace should be given a broader and wider meaning so that the said guidelines can be applied where the application is needed, even beyond the compound of the workplace for the removal of the obstacle of like nature that prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her in her place of work where she can continue her service with honor and dignity.”

Further, in the case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (2013), the Bombay High Court stated that “the definition of ‘workplace’ under the POSH Act is inclusive and deliberately kept wide by the Parliament to ensure that any area where women may be subjected to sexual harassment is not left unattended.”

Owing to the remote/hybrid model, organisations need to be mindful that even though the employees are working from home, they continue to electronically operate in a ‘workplace’ and therefore, organisations must continue ensuring a safe working environment for all their employees.

To help navigate this tricky new environment, here are a few measures organisations can take to handle sexual harassment effectively while working remotely. Working from home requires certain work etiquette to be re-emphasized. For instance, being mindful of the content being shared; body language and dress code during work calls should be strictly professional; ensuring no inappropriate emails/messages on Teams, WhatsApp, or any other social media platform; and, no request for video calls after office hours.

The rules framed under the PoSH Act provide that every organisation drafts an internal policy that prohibits sexual harassment in the workplace. The organizations need to update their PoSH policy to (a) specifically cover ‘work from home/ remote work’; (b) provide protection to men and members of the LGBTQIA+ community; (c) enable digitalized proceedings. The victim/aggrieved person must keep all records of the incidents whenever possible, such as taking screenshots of the relevant messages, call records, or texts.

Madhvi Dutta
Principal Associate at JSA

Managers should set clear expectations about appropriate behaviour while working remotely and reinforce that the organisational policy on PoSH remains the same. While companies must conduct training and awareness sessions for employees (even when working remotely), newly recruited staff and interns who are getting on-boarded virtually should also be sensitized to expected standards of professional behaviour.

For many working professionals, digital/virtual workplaces are becoming an unavoidable tool. Under the PoSH Act, employers are responsible for providing a safe working environment in the workplace and thus, with the new normal of digital workspaces, these responsibilities should unquestionably extend to include virtual workplaces as well.

Disclaimer: The views expressed in this article are those of the author and do not necessarily reflect the views of the Economic Times – ET Edge Insights, its management, or its members

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