The nature of our workplace has been significantly impacted due to COVID-19 pandemic. Many have had to adapt to the 'new normal', which is working from home. Waking up to 'travel' to their makeshift home office, in order to commence their day's work, employees find themselves under the gaze of the webcam: WebEx, Zoom, Google meets or Skype, as online platforms become the new accustomed workplace. Our offices have sunk back into its wonted quietness. The new workplace has blurred the lines of professional and personal as well as formal and informal, making it uncomfortable to work.
What is Virtual Sexual Harassment?
There seems to be a mix of emotions, relief for those who had experienced inappropriate behaviour in their workplace and confusion for those who are currently facing variations of virtual sexual harassment. The "new normal” of digitalization brings with it a direct visual entry into privacy via the increased number of video calls and the increased communication on other communication platforms.
Working from home might be a small change for few, but many employees are concerned about unacceptable behaviours from other employees or their superiors or other persons from work, through digital modes of communication. Incidents such as these can take place through social media platforms such as WhatsApp, LinkedIn, Email, Instagram, and so on. Any correspondence, messages, inappropriate jokes, audio or video recordings which are unwelcome and sexually coloured and are sent, transmitted or conveyed through any electronic means also amount to sexual harassment at the virtual workplace. In addition to inappropriate verbal and physical encounters, the above also involves unwanted and unwelcome digital interactions at the virtual workplace. The aggrieved person has the right to seek redressal. Such incidents which take place via electronic means while working from home are as important a case as any other forms of sexual harassment at the office workplace.
The Prevention of Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 includes work from home under its definition of workplace. To dwell into the provisions of the Act, Section 2(o)(vi) expressly defines a workplace. The section includes the premises of the home in its definition. It is, therefore, extendable to and goes beyond the four walls of the office premises, thereby applying to the virtual world too. Thus, during these trying times of COVID-19, working from home and communication on electronic devices and platforms for discharging duties at the virtual workplace in a professional capacity are included in the definition of workplace.
Non-Physical Forms of Sexual Harassment
Now it is important to have a discussion on the non-physical forms of sexual harassment that the Act recognizes. It is important to understand what non physical forms of sexual harassment includes and means. An important point to be noted regarding virtual forms of sexual harassment is the lack of a physical link between the alleged attacker and the victim which makes easier to say things one wouldn't in person.
For instance, an employee who wants to ask another for a date but is too afraid may send a sexually suggestive email/message instead because they don't have to face their co-worker in person. Another instance could be an employee feeling uncomfortable regarding the video calls with her supervisor/ boss because of inappropriate comments such as "push back the camera I am unable to see your full body".
Under-reporting of sexual harassment cases
Victims/ aggrieved persons tend to turn a blind eye to such conducts which take place on the virtual platforms, they are hesitant whether to file a complaint with the Internal Committee. It is important to keep in mind that in sexual harassment instances victims tend to remain silent and not report as a majority believe that their report would not be taken seriously or even addressed, while there are some who are afraid that reporting such cases would put their jobs at risk.
Another pertinent point that needs to be kept in mind currently is the COVID-19 ripple effect - the fear of losing their jobs, pay cuts are additional factors due to which victims refrain from filing a complaint of sexual harassment when they are working from home. Several victims have also reported that they fear that if they take the case forward, they might be causing more trouble. It is essential to create awareness and sensitisation regarding virtual sexual harassment and help build confidence with employees regarding the redressal mechanisms.
The current "new normal” raises concerns and the specific need for guidelines for identifying, sensitizing and addressing virtual forms of sexual harassment while working from home. Companies should amend their company sexual harassment policy, and communicate the current additions to the policy. Rules and regulations should be formulated against unaccepted behaviour to provide ample information to every employee as to the acceptable decorum, behaviour, dress code, language and attitude while working from home. An open-door policy must be followed for work from home scenar too. Every unwelcome sexual conduct is a violation of a safe workplace.
The virtual sexual harassment has only added to the countless hurdles faced by the people like salary cut, job loss, anxiety, depression and loneliness.
There is nothing called virtual sexual harassment. The law in question i.e, the Sexual harassment of women at the workplace (Prevention, Prohibition, Redressal) Act, 2013. This act defines sexual harassment which includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:
1. physical contact and advances; or
2. a demand or request for a sexual favour; or
3. making sexually coloured remarks; or
4. showing pornography; or
5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;
In a virtual world, there may not be instances of physical contact and advances, however the rest of them continue to be possible even in the present work from home situation. What would then amount to sexual harassment in a virtual world as you put it, within the ambit of the existing law. Asking or insisting on women colleagues coming on video calls late night. Recording any official video calls with a female colleague and saving it on their phones etc could be instances of sexual harassment in the virtual world.
Why Virtual Sexual Harassment Occurs
While physical and verbal sexual harassment often stem from the harasse's desire to control or intimidate the person, online sexual harassment can have other intentions. Posting explicit photos or sexual information (whether true or not) is often meant to shame the victim. Some harassers may personally know the victim, have been turned down in person and are now retaliating online. However, virtual sexual harassment can spiral out of control.
What legal actions can be taken to fight against virtual sexual harassment?
Virtual sexual harassment can be harder to detect because it takes place online, not out in the open. However, there are ways to protect your employees from it.
If a woman at work experiences any situation while working from home either with another male or female colleague that she is not comfortable with, she should immediately get in touch with the presiding officer of the Internal Committee to seek clarifications on whether the act amounts to sexual harassment or not. The reason I say this is because as layman one may not understand if an act is a harassment or not, when you are not very sure there is a gut feeling within you, which says things are not ok, if you get that feeling then please ask/get a clarification from the presiding officer.
How companies can develop their work from home policies to give a virtually safe environment to their female employees?
There are two important points to be considered here. One is the work from home policy. Am sure many companies are now grappling with this policy itself because so far work from home meant working a few hours or days in a week from home. Coming to office was naturally something that was on. Post Covid 19, work from home has literally become work from home, with many not having seen the physical office since 5 months. While that is a part to be taken care off, the company has to consider conducting awareness programs for employees during this period to one tell them what could amount to sexual harassment in the virtual world and how they can reach out to the presiding officer of the internal committee.
What if a female employee misuses her rights? What about the fake allegations, do we have balanced law for male employees as well?
If the female employee misuses the law there are enough checks and balances to ensure she is punished for filing a false complaint just as much as a person will be punished for committing such an act. Yes, the law is balanced. Coming to whether the law is balanced for male, do you know how the POSH Act came into being in the first place