Sexual Harassment in online workplace

This article is written by Anshumi Maloo, a student from Karnavati University, Gandhinagar. This article focuses on the different situations which are faced by women during work from home which includes the biggest crime of sexual harassment.

Addressing Sexual Harassment In Online Workplace

The people of India were to conduct social distancing to prevent the spread of the deadly disease Covid-19 due to the nation-wide lockdown under the advice of Prime Minister Narendra Modi. The economy of India was adversely affected by the lockdown. All the businesses were kept closed until the Government provided the guidelines. All the corporate firms, courts, and other activities were shifted from physical workspace to online workspace.

Technology and, more specifically, the Internet has its own share of issues, with the likelihood of violence being one of them. The concerns of cyber-bullying, online abuse, and stalking have multiplied, and their consequences are now growing louder in the workplace.[1] One such example of gross abuse of technology is the crime of sexual harassment in the cyber workplace and must be curbed expeditiously. Workplace harassment is not a big or small business issue, this issue is seen to be increasing day by day.

Women are always at risk of being subjected to sexual harassment/unwanted sexual advances, especially in the workplace, because of the presence of unwanted elements in Indian society. The Sexual Harassment of Women at Work (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’) was enacted by the Ministry of Women and Child Development, India in 2013. India’s first law directly addressing the problem of workplace sexual harassment.

The purpose of the POSH Act legislature was to ensure that working women in the country are given equal status and equal protection of the law. Work from Home is the new normal for the businesses as well. Some business has made new rules and policies to develop the trend of providing benefits for their employees who are working from home.

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  Sexual Harassment in online workplace

image credits- i-sight.com

Laws Addressing The Issue of Sexual Harassment

According to the law in India, under Article 14 and Article 21 respectively, sexual harassment violates the basic rights of women to gender equality and to live with dignity. While there are no clear laws in India to curb sexual harassment at work, there are some clauses in other legislation, such as the Indian Penal Code, which provides protection against sexual harassment of women.[2]

Section 294 deals with obscene acts and songs in a public place.

Section 354 deals with assault or criminal force against women.

Section 376 deals with rape.

Section 510 deals with uttering words or making gestures that outrage a women’s modesty.

The Supreme Court of India acknowledged sexual harassment in the workplace in India for the very first time in its landmark judgment of Vishaka v. State of Rajasthan[3], in which the Supreme Court set out certain rules and gave directives to the Union of India to enact an effective law to tackle sexual harassment in the workplace.

The Vishaka judgment, ‘Sexual Harassment’ includes such unwelcome sexually determined behavior (whether directly or by implication) as Physical contact and advances and demand or request for sexual favors and Sexually colored remarks and Showing pornography or any other unwelcome physical, verbal or nonverbal conduct of sexual nature.

Guidelines provided under the case: 1] It is every employer’s responsibility to provide every female employee with a sense of security.

2] Government laws and regulations should be strict in order to prohibit sexual harassment.

3] Any conduct of that nature should lead to administrative action and criminal charges against the wrongdoer should also be brought.

4] In the employees’ conference, topics related to sexual assault should not be a secret and should be addressed positively.

5] If a sexual assault happens due to the act or inaction of a third party, the employer or the individual in charge is expected to take the appropriate and fair action to provide support to the victim.

According to the Vishakha guidelines, it is mandatory to create a complaint committee in every workplace, but they are hardly implemented by private companies, whereas government organizations do it on paper. Other serious problems are faced by the organizations in which these committees operate, as victims have indicated that the committee members do not even have a clue of their duties, powers to deliver justice.

In two points, sexual harassment can be differentiated, one of which is quid pro quo in which a woman is sexually abused in exchange for job benefits and sexual favors, which often leads to retaliatory acts such as demotion and making her work in challenging circumstances. Another is a ‘workplace atmosphere’ that imposes an obligation on the employer to have a supportive working environment for the female worker and forbids sexist graffiti, pornographic sexual comments, and brushing against female workers.[4]

Online sexual harassment takes place on an interactive forum and the defense against such harassment is also applied to this Act by the Information Technology Act, 2000 [‘IT Act’]. The disciplinary measures for publishing and/or distributing obscene material on an electronic platform are prescribed in accordance with Section 67 of the IT Act. Section 67A provides for penalties for publishing or transmitting materials containing any sexual forms.

In the case of Saurabh Kumar Mallick vs The Comptroller and Auditor General of India[5] The court indicated that it is not possible to accept a narrow definition of ‘workplace.’ The court agreed that while it might be difficult to describe the word ‘workplace’ in a straitjacket as the same would depend on the facts and circumstances of the case at hand, by considering the following variables, the court set a test to decide whether a particular place can be called a ‘workplace’: proximity and control of management over that place.

The new approach to this dynamic concept of the workplace will need a broader scope from the side of legislation as well. It is the responsibility of the courts to interpret a provision in a liberal manner, as per the rules of interpretation of statutes that have developed over time in Indian jurisprudence.

Government legislation dealing with this topic should be separate. It should also be remembered that women workers are also a part of India’s working population and it is the government’s responsibility to provide them with protection at work. The government should recognize that separate laws do not bring about equality in gender relations, but women will be greatly helped in their battle by a law dealing with sexual harassment.

In the case of Dr. Punita K. Sodhi v Union of India[6] Delhi High Court held that “A complete understanding of the complainant’s view requires… an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women… Men tend to view some forms of sexual harassment as “harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement… Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.”

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Prohibition Of Sexual Harassment Act, 2013 (POSH ACT)

Although verbal and psychological are the most basic types of harassment, there are also more extreme forms, such as physical and sexual harassment. All forms of abuse in the workplace are unlawful and not only impact the efficiency, comfort, and protection of an employee at work but also put the company in danger.

The POSH Act does not classify sexual harassment in an exhaustive way, which is clear from the language of the clause that if it makes the woman to whom it is addressed uncomfortable, any inappropriate act or comment counts as harassment.[7]

Section 2(n) of the POSH Act defines sexual harassment as any unwelcome act or behavior (whether directly or by implication) namely, physical contact and advances, or demand or request for sexual favors, or making sexually colored remarks, or showing pornography, or any unwelcome physical, verbal or non-verbal conduct of sexual nature. Section 3 of the POSH Act states that no woman shall be subjected to sexual harassment at any workplace.[8]

Although workers may be physically at home when communicating with colleagues, they continue to function in a “workplace,” and businesses must convey this to employees in no uncertain terms. The employees passing jokes to lighten the mood or the background used while attending video-conference will also come within the ambit of sexual harassment under the POSH Act if any employee is not comfortable. [9]

The Rajasthan High Court has expanded the scope of the word “workplace harassment” to include online harassment in the recent case of Sanjeev Mishra vs. Bank of Baroda[10]. The Court held that the workplace for employees employed in the bank and who may have worked in the same branch of the bank and later transferred to separate branches in the current digital environment would be viewed as one workplace on a digital platform regardless of whether the employees are located in different branches/States.

The POSH Act is explicit that both the structured and unorganized sectors are protected by a workplace and involves any work-related offsite, office party, get-togethers, social media groups, in reality, any location within the framework of a work-related partnership.

In the case of Punjab and Sind Bank & Others vs. Mrs. Durgesh Kuwar[11], the Supreme Court of India held that sexual abuse of a woman at work is an affront to her fundamental rights of equality, the right to live with dignity, and the right to exercise any career or to pursue any occupation, trade or business.

Any workers may be able to use their work computers to access or submit pornographic materials. Computers at work should only be used for business purposes and the staff should never use them for displaying pornographic materials. As an employer, you can install software to prevent those places from being reached by people.

The most likely age demographic to encounter online abuse is young adults between the ages of 18 and 29. While harassment can be experienced by men and women, women are more likely to receive more extreme types of it, particularly younger women. The most popular medium is social media, but it can also happen inside a website’s comments section and via personal email.

Compulsory POSH training should not only address issues such as proper dressing and keeping the discussion confined to work but should also ensure that workers understand thoroughly what is acceptable and what is not in the sense of a video call.

While the sexual assault prevention law since 2013, has been in effect at the workplace, where there is still a lack of clarification on various issues relevant to the rules, including what constitutes sexual activity Injury, and sexual harassment.

Circumstances of sexual harassment: The harasser may be the boss of the victim, a supervisor in another country, an employer’s agent, a co-worker, or a non-employee.

The victim may not have to be the harassed person, but anyone affected by the offensive actions may be affected.

Without economic damage to or discharge of the victim, unlawful harassment can occur.[12]

In return for a promotion or job protection, sexual harassment involves unwelcome sexual advances, such as inappropriate contact, sexual jokes, exchanging pornography, sending sexual messages, or requesting sexual favors.[13]

Conclusion

The current circumstances require a certain widening of its reach, notwithstanding the security of the POSH Act. As a whole, information and communication technology has its own benefits, but at the same time, it has the ability to be exploited in a manner that adversely affects society’s moral fabric.

Sexual harassment in the workplace not only creates an unsafe and hostile working atmosphere for women, but it also impedes their capacity to compete in the dynamic world of today. It also adversely affects their social and economic development and puts them in physical and emotional pain, in addition to interfering with their success at work.

-Edited by Drishti Meena

(Editor)

 

[1] https://www.theleaflet.in/prevention-of-sexual-harassment-at-online-workplace/#

[2] http://www.legalservicesindia.com/article/716/Sexual-Harassment-at-Workplace.html

[3] 1997 6 SCC 241: AIR 1997 SC 3011

[4] Supra 2

[5]  WP(C) No. 8649/2007

[6] 367/2009 & CMS 828, 11426/2009

[7] Supra 1

[8] https://www.lexology.com

[9] https://www.thehindubusinessline.com/opinion/dealing-with-sexual-harassment-in-the-virtual-workplace

[10] (2011) 15 SCC 498

[11]CA 1809/2020

[12] Workplace Harassment by Skye Schooley

https://www.businessnewsdaily.com/9426-workplace-harassment.

[13] Supra 8