The COVID-19 pandemic caught the entire world off guard and tossed it into upheaval. It forced people to stay indoors and constrained companies to shift to work from home mode. Remote work became the new normal, and home became an extended workplace. Platforms like Zoom, Skype, and Meet became the ideal choice for business meetings. A large body of data and reports from those on the front lines have shown that the resultant stay-at-home orders have spurred increases in violence against women and girls, severe enough to be marked a pandemic itself, a “shadow pandemic.” Although a great deal of the attention has focused on domestic violence, we underline another element of the shadow pandemic, i.e. the workplace sexual harassment. It is the most predominant type of violence against women and girls worldwide and adversely affects employees’ physical and psychological health, disturbs employment trajectories, and reduces financial prosperity.
Although workplace sexual harassment is globally criticized as gender discrimination and a violation of human rights, and more than 75 countries legally prohibit it, yet it remains rife and widespread. Neither the laws nor market incentives have been able to eradicate it. Experts have claimed that incidents of workplace sexual harassment have dramatically increased following the lockdown triggered by the COVID-19 pandemic and sexual predators have found new tools to threaten and abuse women. A large number of women reported being subjected to new forms of sexual harassment online such as “zoom-bombing” in a survey conducted by a European Parliament-based campaign group. Further, a recent study carried out by the Charity Rights of Women, United Kingdom, found that the last year’s lockdown exacerbated workplace sexual harassment and is still taking place remotely. Instances of such workplace sexual harassment misconduct included: taking screen captures during video calls without permission and circulating them on social media, managers demanding women colleagues to attend impromptu meetings post office hours, using phallic emoticons, and offering to send pictures. The National Commission for Women in India has recently disclosed that the cases of online sexual harassment had seen an upsurge by five times since the outbreak of the COVID-19 pandemic.
Owing to the unpredictable nature of the pandemic and advances in digital technology, it appears that remote working is here to stay in some form. Further, numerous organisations are considering permitting their employees to work remotely for a long time to come. Thus, it is a critical time for policymakers and organisations to review and update their internal policies so that it reflects changes in working order, including the upsurge in remote working.
Understanding virtual sexual harassment and laws in India
In India, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is the primary legislation that seeks to ensure the protection of women against sexual harassment at the workplace. The POSH Act defines sexual harassment as any unwelcome act or behaviour (whether directly or by implication), namely, physical contact and advances, or demand or request for sexual favours, or making sexually coloured remarks, or showing pornography, or any unwelcome physical, verbal or non-verbal conduct of sexual nature. Hence, acts like indulging in sexual insinuations and abusive and intimidating behaviour would need to be perceived within the ambit of sexual harassment.
Further, the POSH Act has been very clear with its definition of workplace and employee, thus making virtual offices and employees working remotely well within the purview of the Act. It defines “workplace” in an inclusive and non-exhaustive manner to include within its purview any place visited by the employee in the course of employment, including “a dwelling place or a house”. Therefore, it can be construed that the employee’s own home would be included within the purview of a workplace. In 2008, the High Court of Delhi in the case of Saurabh Kumar Mallick vs. the Comptroller & Auditor General of India held that the expression “workplace” could not be narrowly described to confine its meaning to the commonly understood expression of an “office” – that is a place where any person of the public could have access. The Court further held that if a person conducting work through video conferencing indulges in the act of sexual harassment with an employee, it cannot be open for him to say that he had not committed the act at a “workplace”. Recently, the High Court of Rajasthan, in its judgment in the case of Sanjeev Mishra vs. Bank of Baroda, has widened the scope of the term “workplace harassment” to include online harassment.
Virtual sexual harassment happens in cyberspace, i.e. on an electronic platform, and therefore such acts of inappropriate behaviour which would amount to harassment may also attract provisions of the Information Technology Act, 2000. This is commonly referred to as online abuse or online violence.
The challenge for organisations in recognizing and addressing sexual harassment misconduct is augmented with remote working. A whole host of operational issues arise when all or some of the organisation’s workforce work remotely. As a minimum, we suggest that organisations consider the following:
- Review existing policies: Organisations need to ensure that the existing POSH policies are reviewed and updated to reflect changes in working arrangements, including the rise in remote working and the increased utilization of digital technology.
- Set expectations: Your employees should be aware of what amounts to sexual harassment and the etiquette surrounding work-related communications during periods of remote working. Organisations may consider imparting mandatory POSH training, which shall include not just topics like dressing appropriately and keeping the conversation limited to work but shall also ensure that employees fully comprehend what is appropriate and what is not in the case of a video call.
- Publicise reporting procedures: Employees should be provided unambiguous information on how they can report any incidents of sexual harassment. The POSH policy should be accessible on the organisation’s intranet or an equivalent source that can be easily accessed remotely and should be easy to use.
- Be responsive: If a sexual harassment complaint is received from an employee, it should be handled sensitively, thoroughly and, promptly. Reporting incidents like sexual harassment is often overwhelming, as victims can confront with feelings of guilt and shame and can fear recriminations. It is crucial for employers to consider that employees may well have invested an enormous amount of time and nervous energy in getting to a phase where they can present their complaints. Further, to have done so and be met with silence is highly stressful. It is also essential for organisations to bear in mind that if employees feel their concerns are not taken seriously, they are more averse to bring up further issues later on.
Dismantling the culture of power
A large body of research suggests that workplace sexual harassment is a consequence of power differentials. It is not primarily a result of physical access. It is a mirror reflecting male power over women. Also, having a top-level position does not shield an employee from sexual harassment When women are on equal footing with men in powerful positions, their power position and level of autonomy can incite resentment and increase vulnerability to sexual harassment. Disrupting these patriarchal principles is the thing that will eventually exterminate sexual harassment at the workplace, thereby creating more virtual and physical workplaces.