The corporate sector has developed in tandem with the advancement in technology. Today, we have sophisticated means of working remotely from our homes on various cutting-edge online platforms. With this advancement in technology and change in our working style, the arena of what we perceive as ‘workplace’ has also widened.
The digitised workplace has opened avenues for sexual harassment in the virtual space and the problem is no longer limited to a physical office premise. As an result of Covid-19 imposed lockdown, the cases of online sexual harassment is expected to rise amongst remote wrokforces. Thus, it becomes imperative to identify and take necessary measures of prevention.
Understanding Online Sexual Harassment
It is relatively easy to demarcate what counts as sexual harassment in an office premise. Inappropriate touching or staring, lewd teasing, etc. can justifiably be understood as workplace sexual harassment. But, what happens when an employee starts sending crude and unwelcome sexual messages to other women employees over WhatsApp or Facebook? Or perhaps, some sexually colored remarks are passed on an employee’s profile picture on your company’s communication tool?
Generally, “sexual harassment” is understood as any unwelcome act or behaviour of a sexual nature. The Prevention of Sexual Harassment Act, 2013, further clarifies that such acts can be physical, verbal or non-verbal. This specification affirmatively posits the existence of sexual harassment which takes place over online workplace platforms, as the same occurs through verbal and non-verbal means.
Watch our Video on What constitutes Workplace Sexual Harassment under the Law
The Supreme Court of India has reiterated that physical contact is not a necessity for cases of sexual harassment. Rather, 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.
Instances Of Sexual Harassment On Online Platforms
Instances of sexual harassment taking place on online platforms can be broadly divided into the following categories:
- Unwelcome Behaviour Over Emails And Text Messages: This refers to unwelcome communications received by way of an electronic media. This includes any unwelcome, unsolicited and inappropriate content of a sexual nature sent over text messages, calls or emails, pictures, videos, etc.
- Unethical Practices Creating A Hostile Environment: In every organisation employees use various online platforms to connect readily with each other and the same should not be misused with foul intentions. For instance, reaching out to the co-worker beyond the working hours, for instance, calling them at 09:00 p.m. when the same work can be done at 10:00 am the next morning; calling for unnecessary meetings; disproportionate modes of communication like a video call when simply a text message would suffice, etc. are all situations which can create a hostile work environment for an individual and they are well within their right to approach the Internal Committee for the same.
- Unsolicited activities on social media: Apps like Facebook, Twitter, WhatsApp, etc have gained notoriety for being hubs of harassment, cyber-bullying, cyber-stalking, etc. Even for employees of an organisation, such platforms offer a myriad of opportunities of sexual harassment, having potentials of interfering with workplace health. This includes initiating conversations on these social media platforms, sending frequent messages, posting sexual innuendos on their co-workers’ public or private posts or publishing sexually coloured remarks, spreading lewd rumours, etc.
Online Sexual Harassment And The Law
Workplace sexual harassment, no matter the platform on which it occurs, is a form of gender discrimination which violates a woman’s fundamental right to equality and right to life, guaranteed under Articles 14, Article 15 and Article 21 of the Constitution of India.
Under the PoSH Law, the term “workplace” has been interpreted in an expansive way and extends to “telecommuting or other work related communication happening over any virtual platform.” In a relatively recent judgement, the Delhi High Court stated that in cases of sexual harassment at the workplace, it is imperative to take into consideration the recent trend which has emerged with the advancement of information technology. A person can interact or do business conferences with other people while sitting in some other country by means of video-conferencing and thus, a narrow approach cannot be taken in defining the term ‘workplace’ as it would defeat the objective of the Vishaka guidelines.
Additionally, on several occasions, the courts have emphasized that “sexual harassment” has a wide ambit. In a 2012 judgement, the Delhi High Court held that sexual harassment cannot be construed in a narrow sense, as it may include sexual advances and other verbal or physical harassment of a sexual nature. The Supreme Court recently adjudged upon a matter where an act of sexual harassment was committed through a letter. The letter sent by the appellant, which contained material offending the victim, was held to fall within the ambit of sexual harassment as it contributed in creating a hostile work environment.
Watch this video to understand how the concept of the average ‘workplace’ has expanded and includes virtual platforms
The Need To Tackle Instances Of Online Sexual Harassment
Online sexual harassment creates a hostile work environment, which can result in the decline of the mental and physical health of the victim, along with a depreciation in their work performance and productivity. For instance, a harasser continuously joking about the victim’s private life over the company chat channel, or anonymously posting derogatory or discriminatory remarks about her position in the company on social media, etc. leaves little room for her to focus her attention on her work.
Moreover, instances of virtual sexual harassment hamper the overall work environment of the organisation. It weakens the team-spirit and strains the interpersonal relations between colleagues. Not only does it interfere with the work performance and productivity of a company, but can also stunt overall growth to stunt.
Authored by Samya Gupta and Anushka Shrivastava
Please note the above insights are a product of our learning and advisory at Lawcubator. Write to us at firstname.lastname@example.org to partner with us to help you build a safe and PoSH Compliant workplace.