We discussed in our previous post that the Prevention of Sexual Harassment at Workplace Law has adopted a wider narrative at defining “workplace”, which includes the online or the so called virtual workspaces. This implies that instances of sexual harassment, whether verbal or non-verbal, which take place on the online platforms can come under the jurisdiction of the Internal Committee.
To understand the scope of “workplace”, watch our video on Defining the ambit of ‘Workplace’ under the PoSH Law.
Two colleagues, let’s say Trisha and Nikhil, added each other on social media and started interacting. Later during the conversation, Nikhil made certain unwelcome sexual remarks which made Trisha uncomfortable. Should a complaint of such an incident taking place on social media be taken by the Internal Committee of the company? Some might claim that social media instances cannot be brought under the purview of workplace sexual harassment. But, what if the alleged incident of sexual harassment caused interference in the employee’s working environment?
In this blog post, we dwell over the factors that must be considered by the Internal Committee Members while dealing with complaints of online sexual harassment and also the approach that can be adopted by the companies in formulating their policy.
For better understanding, lets divide instances of online sexual harassment in two heads:
- Instances on official channels; and
- Instances on social media or unofficial messaging apps.
A. Instances on official channels
An unwanted message sent over Slack, a lucid remark passed over a Zoom call, an unsolicited remark on an employee’s display picture on Teams or any other act sexually colored in nature, which takes place over company authorized work channels, must be taken up by the Internal Committee.
B. Instances on social media or unofficial messaging apps
As much as it’s easy to demarcate alleged instances on official channels, it gets complicated if the same alleged act happened over WhatsApp or a social media platform like Facebook, Instagram or Twitter. While deciding a complaint of sexual harassment which has solely taken place in a virtual workplace, the following factors must be considered:
- If the alleged act or acts took place within the working hours; or
- If the alleged act or acts took place using an office device; or
- Has the alleged act caused interference in the working environment of the employee.
If the answer to any of the above is affirmative, it is best recommended that the complaint must be taken up by the Internal Committee for investigation.
If the alleged act ‘spilled over in the workplace’
An article on Lexology suggests that the investigation in online sexual harassment cases should analyze if the conduct, or its effect, has spilled over into the workplace. Meaning thereby that, online sexual harassment doesn’t happen in a vacumm, and may have far reaching consequences. For instance, if frequent messages to an employee by her team manager on Facebook has created a hostile working environment for the employee, it must be deemed as a case of workplace sexual harassment and should be taken up by the Internal Committee.
With remote working becoming a normal practice, it’s important that your PoSH Policy addresses instances of virtual sexual harassment and also adopts measure to prevent the same. It is also extremely important that the Internal Committee members are well versed with the Company Policy and are all on the same page with tackling and investigating complaints of online sexual harassment.
Authored by Samya Gupta, Legal Executive at Lawcubator Technologies.
The above insights are a product of our learning and advisory at Lawcubator. Write to us at firstname.lastname@example.org to for queries, feedback or consultation of PoSH.