SEXUAL HARASSMENT IN THE DYNAMIC WORKPLACE
The Author is Bhanu Pratap Samantaray, 2nd Year Student at National Law University, Odisha
Work from home has gradually but slowly become the new standard during these unprecedented times. Work from home has now been the general rule instead of an exception to the general rule with the social distancing norms in place.
While the workplace has become diverse by moving from physical to virtual, sadly, the threat of harassment remains constant and sexual harassment at work continues to be an issue.
DOES A WORKPLACE INCLUDES A VIRTUAL WORKPLACE AS DESCRIBED IN THE SEXUAL HARASSMENT OF WOMEN AT WORK (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013?
The Sexual Harassment of Women at Work (Prevention, Prohibition and Redress) Act, 2013 (hereinafter referred to as the Act) is the sole legislation in India explicitly dedicated to the protection of women at work. Section 3 of the Act specifies that no woman at any workplace shall be subjected to sexual harassment.
This poses a question: whether the virtual workspace counts in terms of the aforementioned Act to be a workplace?
According to Section 2(o) of the Act, the definition of a workplace is an inclusive and non-exhaustive definition, and it encompasses any place visited by an employee arising out of or during the course of employment, including a place of residence or home.
It is understood from previous judicial pronouncements that labor rules, which are advantageous rules, are construed in a liberal and non-restrictive way to the benefit of the working class. Such laws attract the application of the idea of a notional extension to fulfill their intended intent.
In this sense, the Supreme Court held in the landmark case of S S Manufacturing Co. vs. Bai Valu Raja and Others that the notional extension principle is applicable to the premises of an employer. It took the view that the premises of the employer should not be limited to the strict perimeters of the office space and, taking into account the facts and circumstances of each case, could be extended beyond such physical territory.
The Delhi High Court noted in the case of Saurabh Kumar Mallick vs. CAG of India that, taking into account the intent of the judgement in Vishaka v. the State of Rajasthan, it is not possible to take a narrow and pedantic approach to define the word workplace by confining the definition to the widely known expression office.
Similarly, in the case of Ayesha Khatun vs. State of West Bengal and Others, the High Court of Calcutta recognized that although the workplace was not specified either in the Vishaka guidelines or in the Vishaka judgement, the term workplace should be given a rational definition so that the reason for which those guidelines were framed is not rendered unworkable.
In view of the current situation, many firms see work from home as a more feasible alternative than physical work on the premises of the office, moving the workplace from office to home.
Because the concept of the workplace under the Act itself envisages the concept of notional extension, and the same has also been upheld by different judicial precedents as set out above, it can be said that any act of sexual assault committed digitally in a workplace can be included in the notional meaning of a workplace.
It is important to say that if a complaint by an employee working from home falls within the definition of sexual assault under the Act must ultimately be decided, taking into account the facts and circumstances of each case, along with the complex definition of the workplace.
THE NON – PHYSICAL ACTS THAT CONSTITUTE SEXUAL HARASSMENT IN THE VIRTUAL WORKPLACE
With the help of interactive applications such as Microsoft Teams, Google Meet, Zoom, Skype, etc., the physical distance between workers has become negligible, and working from home without any physical barrier has now become a reality.
In certain cases, however, the transfer of the workplace from office premises to one’s home has also contributed to the transfer of violence to the home. In the minds of individuals, the pandemic has generated an intense sense of work uncertainty, and they do not want to risk their jobs at any cost. As a result, workers who perceive themselves in a marginalized role in the workplace have unwillingly become vulnerable to sexual abuse. It is important to remember that both physical and verbal/non-verbal (non-physical) acts are included in the Act within the definition of sexual assault.
In the case of Apparel Export Promotion Council v. A.K Chopra, the Supreme Court broadened the concept of sexual harassment by finding that physical contact was not necessary for sexual harassment to occur.
The Supreme Court clarified this:
Sexual harassment is a type of sexual discrimination projected through unwanted sexual advances, demands for sexual favors, and other verbal or physical behavior with sexual overtones, whether explicitly or by implication, particularly when the female employee was able to apply or refuse such behavior to affect the employment of the female employee and to unreasonably interfere with it.
The lack of a physical interaction between individuals in the digital work platform makes it easier for a person to say or do certain things that one wouldn’t do in person. Therefore, being prevalent in the virtual workplace, non-physical sexual harassment can take any of the forms listed below:
- Private comments on social media accounts
- Sexual favor’s email/text
- At strange hours, unwarranted video calls
- Holding the method informal during video calls
- Displaying pornography
- Sending sexual content on chats that are unsolicited
- In the Business Chat App, Sexual Jokes or Off-Colour Remarks
THE CHALLENGES FACED WHILE DEALING WITH CASES OF SEXUAL HARASSMENT AT THE VIRTUAL WORKPLACE
In dealing with sexual assault allegations in the simulated workplace, both the employer and the employee/survivor face major challenges. Most of them are listed below.
As most of the workers are new to the digital/virtual working paradigm, the victim finds it difficult to collect evidence on the digital platform and does not want to file the complaint even after collecting evidence in fear that the case will include the family members as the online inquiry would be conducted. Victims often have privacy issues about digital network protection and do not want the lawsuit to be pursued.
From an employer point of view, it is difficult for the employer to spot any early indication of sexual assault in the workplace because there is more space for offensive or aggressive conduct to hide in online channels, and they could be on a forum that the employer does not track or in one-on-one or small group conversations.
SUGGESTIONS FOR THE EMPLOYER SEXUAL HARASSMENT CAN BE PREVENTED IN THE VIRTUAL WORKPLACE
While welcoming technological change, companies need to develop, adapt, and strive to provide their workers with a healthy work environment. A strict policy on the prevention of sexual harassment in the virtual workplace should, without question, be established and enforced in this regard. Sensitization initiatives should be undertaken at all levels of staff, especially for supervisors. Employees should be made aware, and they should be told of what behavior is acceptable and what is not acceptable in the simulated workplace.
It should empower workers to speak up. The staff should be provided with several avenues for reporting incidents that are discreet, accessible, and quick. It is important to create a comprehensive remedy process, and timely and appropriate remedial action on complaints should be taken.
In modern networking outlets, managers should play an active role in paying attention to what is happening. This is considered as a red flag for possible workplace discrimination in the case of an employee who was previously engaged, or a vocal participant is suddenly much quieter. A typical way of reacting to sexual assault by an employee is by withdrawing, pulling away from work, and peers. If such an incident is noted among workers, it might be time for the employer to check the culture of the workplace and the sense of safety of each employee in their work environment.
Sexual harassment is specifically described by the Act of 2013 as improper physical as well as gestural and verbal actions and also applies in the virtual workplace. Sexual assault takes a subtle form in the virtual workplace several times, and people become a victim of it without even understanding it. Employers need to adapt and aspire to create a working atmosphere that is free from all forms of abuse in this complex work climate.
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