SEXUAL HARASSMENT AND WORK FROM HOME

sexual harassment

The concept of Sexual Harassment Electronic Box or “She-Box” has been developed by the Government of India. It is an online platform which is available on the website of the Ministry of Women and Child Development.She-Box was developed to ensure that the Act is effectively implemented.

Aniket Dwivedi, 23 August, 2020, 1:15 PM IST

The Prohibition of Sexual Harassment Act 2013 (or POSH) was enacted to ensure safe working spaces for women and to build enabling work environments that respect the working woman’s right to equality of status and opportunity. . Sexual harassment, as defined in the POSH Act is ‘any unwelcome, sexually determined physical, verbal, or non-verbal conduct’, and these can take on new dimensions in a world of video calls and the lack of a fixed “end” to the day. Sexual harassment is not only the violation of dignity, right to social security and right to equality guaranteed to human beings in every social system but it is also a violation of right to life and peaceful existence which is guaranteed by the law. In India, an offence against women is indication of the historical unequal power relations between men and women, which have led to domination over and discrimination against women by men.

Sexual harassment is one of the ways that men refuse gender equality at the workplace and it also creates an unfavorable environment for working women. Sexual harassment often reflects an abuse of power within an organization, where members of one group of people yield greater power than others, generally women. It is a hazard, which could be often seen in workplaces across the world that reduces the quality of working life, endanger the well-being of women and men and undermines gender equality. So, it is an extension version of the patriarchal violence, at home and in society, at large.

Virtual Harassment

The rapid growth in industrialization and the advent of globalization led to the improvement in different fields, i.e. women in India are taking up more and more opportunities. Today, women in India are demonstrating progress in large numbers in workspaces like instruction, financial aspects, governmental issues, media, workmanship, space and culture, administration areas, science and innovation, and so forth. As the job of women has moved from household work to modern work, offenses against women have expanded exponentially. In spite, of rising rates of sexual harassment, their reporting is nearly as women dread the loss of individuality and the fear of being subjected to unwarranted social disgrace. Virtual harassment is construed as personal comments on the person’s social media handles; inappropriate emojis and messages; stalking, threatening about performance ratings; insisting on video calls well after office hours; inappropriate or sexist jokes to ‘lighten’ the mood; not maintaining a dress code during video conferences and calls; undefined work hours, non-consensual image sharing, bullying, trolling, online reputation damage cases have also started surfacing, which are not given much concern.These problems were raised through state introduced mechanisms or the National Commission for women at different places under various acts for protecting women from physical abuse but due to lack of judicial faith it has not been tackled yet.

Expanding the ‘Workplace’:  The Dawn of Telecommuting

The POSH Act defines ‘workplace’ as “any place visited by the employee arising out of or during the course of employment, including transportation provided by the employer for undertaking such a journey”. Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any ‘workplace’.It is apparent that an important facet that requires determination is the scope of what comprises a ‘workplace’ under the Act. Any misconduct in question that may qualify as sexual harassment in terms of the Act, but which occurs outside the workplace, may not typically attract the provisions of the Act.The definition of ‘workplace’ under Section 2(o) of the Act, is an inclusive and non-exhaustive definition and includes any place visited by the employee arising out of or during the course of employment, including a dwelling place or a house. This allows discretion to the relevant adjudicating authority to determine the exact scope of the ‘workplace’ in the facts and circumstances of each case, as and when such determination becomes necessary.

In the landmark case of Saurashtra Salt Manufacturing Co. v. BaiValu Raja & Ors., the Supreme Court opined on the applicability of the theory of ‘notional extension’ of the employer’s premises. It was held that the theory of notional extension was applicable to an employer’s premises so as to include an area which the workman passes and re-passes in going to and in leaving the actual place of work.The Supreme Court also clearly set out that the scope of such extension of workplace would have to be determined in the facts and circumstances of each case. However, it can be reasonably concluded that an employer’s premises were not restricted to the strict perimeters of the office space and could be extended beyond such physical territory.

Sexual Harassment Electronic Box:

The concept of Sexual Harassment Electronic Box or “She-Box” has been developed by the Government of India. It is an online platform which is available on the website of the Ministry of Women and Child Development.She-Box was developed to ensure that the Act is effectively implemented. It provides a compliant redressal mechanism to all women working either in the organised or unorganised, private or public sector and who have faced instances of sexual harassment at their respective workplace. Any woman facing sexual harassment at workplace can register their complaint through this portal and the complaint is thereafter directly sent to the concerned authority having jurisdiction to take action into the matter, such as the ICC of the organisation. This is an important development as it provides an accessible redressal mechanism to women who are victims of sexual harassment at their workplace.

Preventing Virtual Harassment:    

The responsibility for any instance of virtual harassment always lies on the perpetrator and not the victim. When considering how to reduce rates of digital violence, firstly, it is important to identify risk factors for sexual harassment and find ways of stopping violence before it happens, and to make sure that victims have the support and resources they need to report abusers before they can strike again onto them.

• All employees should be encouraged to report any incidents of harassment at virtual workplace to the HR or IC. There have been instances where the victim may feel helpless to bring forward the issues they may be facing or have faced.
•  The system of checks and balances has to be in order. The managers who monitor the online meetings, digital communications and are privy to the conversation of the co-workers should be more vigilant. Extra care should be given to note and observe the conduct of every employee to note any out of the ordinary behaviour or sudden lack of interest in the work or interaction with other co-workers.
•  The company also has to maintain an open-door policy regarding any grievances and complaints.  The confidentiality of the victim statements and evidence collected should be maintained at all times. All statements can be signed off virtually. All evidence can be collated and filed using an online medium. The IC should be involved from the initial stage. 

Suggestions:

So with the concept of virtual offices and work from home taking precedence in light of the workplace and with the aid of applications like Zoom, Microsoft Teams and Skype etc, working in physical spaces and proximity has taken a backseat. This raises the question of whether our homes or virtual reality space qualifies the test to be recognized as a ‘workplace’ keeping in mind the spirit of the Act.Our understanding is that any act of sexual harassment affected virtually in a home working space can be included in the notional definition of a ‘workplace’. The definition of workplace under the Act, itself envisages the concept of notional extension, and such legislative intent has also expressly been recognized by the Courts.In the virtual world, there is a thin line between such harassment that may occur in the course of work or employment and that which may be perceived as harassment while operating outside the physical workplace. Having said that, the scrutiny of facts and circumstances of any complaint arising in case of employees who are working from home would be necessary to determine whether or not such complaint falls under the purview of the Act, keeping in mind the dynamic scope of ‘workplace’. Therefore it is prima facie obligation of offices to prevent and protect the employees from all forms of harassment and discrimination is the duty of the Companies.

Conclusion

So, in the end, I would like to conclude that, Sexual Harassment at workplace still happens, not even at workplace but also in dwelling place as well.Workplace should be given a broader and wider meaning so that the said guidelines can be applied where its application is needed even beyond the compound of the workplace for removal of the obstacle of like nature which prevents a working woman from attending her place of work and also for providing a suitable and congenial atmosphere to her. However, there are dimensions of workplace conduct and safety that are equally important. With a large percentage of the urban working population, now the era of working from home employers have thin lines between the home and the workplace — obscuring an important element of professional and safe workplaces and leading to newer dimensions around workplace harassment.