Edited by Dushyant and Osama Manzar
Published on: Jan 1, 2020
The pandemic has drastically changed the way we live and work. It has accelerated the onset of new trends at work and forced businesses across the spectrum to adopt work-from-home measures. As the fight against the virus continues, this shift to remote working is here to stay.
Many have argued that the shift to a virtual workplace is a silver lining for female workers as it will allow increased flexibility and productivity. However, this may not be entirely true in a patriarchal country like India, where women are expected to shoulder disproportionately higher domestic burden. As the lockdown has cut off most informal support systems for women, they now have to spend a substantial part of their time cooking, cleaning, and taking care of their children besides having to work-from-home. For many, staying at home has also resulted in increased friction in households, which is evident from the unprecedented surge in domestic and intimate partner violence.
Another tremendous difficulty women continue to face is that of sexual harassment. While remote working may reduce forms of violence and harassment that arise in the traditional workplace, it has increased the risk of online harassment. An alarming 2017 survey conducted by Norton by Symantec, a reputed cybersecurity firm, found that the phenomenon of online harassment is rampant in the country. It revealed that eight out of ten people in India experienced some form of online harassment, and 41% of women faced sexual harassment on the internet.
According to a recent survey by Truecaller on “Understanding the Impact of Harassment Calls & SMS for Women in India”, one out of five Indian women received a call or text message with sexually inappropriate content. It also found that a staggering 8 out of 10 women in India have faced harassment via calls or messages. In all probability, with higher internet penetration and more women working from home, these numbers are likely to shoot up substantially going forward.
While some may argue that online sexual harassment is innocuous, such technology-facilitated abuse is worrisome. It is likely to have significant professional, psychological, social, reputational, and financial harm to women who are already disadvantaged by lower pay grades and added domestic responsibilities. Research has also suggested that women subjected to online harassment are more prone to depression, anxiety and panic attacks, many of whom experience disrupted sleeping patterns, and some even feel that it threatens their careers.
Without question, the repercussions could be severe and long-lasting. They can hinder women’s ability to use technology freely and with confidence. Any gains made over the years to bridge the gender digital divide are likely to be undone. Therefore, as we make the shift to virtual workplaces, it is imperative that we examine the existing legislation to prevent online sexual harassment of women. It is also crucial to ensure that such legislation is not diluted due to the ongoing pandemic.
The Law of Sexual Harassment at ‘Virtual’ Workplace
It is often assumed that sexual harassment can only take place within the confines of a traditional physical office space. However, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”) contemplates the concept of an “extended workplace.” Therefore, sexual harassment which takes place at an extension of a place of work, including an employee’s home, is also regulated by the PoSH Act. Sub-clauses (v) and (vi) of Section 2 (o) of the Act make it amply clear that “any place visited by the employee arising out of or during the course employment” or “a dwelling place or a house” can be workplaces for the purposes of the Act.
As many women have turned to remote working, the boundaries between their work and personal lives are blurred. Now, more than ever, women are finding themselves glued to their laptops round the clock. With no fixed working hours and lack of time sovereignty, working women are at greater risk of being subjected to online sexual harassment.
Online sexual harassment can take various forms ranging from mild sexual advances to rape threats. It may include but is not limited to inappropriate texts, repeated and unnecessary phone or video call requests at odd hours, and offensive emails containing lewd jokes or sexually colored remarks by male counterparts or employers. Non-verbal and implicit gestures such as dressing inappropriately or making obscene gestures during video calls may also amount to sexual harassment. While some antagonists may choose to term these as mild, harmless, casual, or even friendly gestures, for women undergoing harassment, they have significant ramifications.
Women who refuse to respond to such emails, calls, or texts and oppose such behaviour, are likely to face retaliation or lose their jobs. In many cases, this could result in more serious forms of sexual harassment such as cyberstalking, cyberbullying, blackmailing, and threats of sexual or physical violence. Such behaviour towards women often leads to a toxic and hostile work environment that is explicitly punishable under the Act.
The Hon’ble High Court of Delhi, in the case of Jahid Ali vs. Union of India & Ors., observed that sexually coloured messages over mobile phones would amount to sexual harassment of a woman under the PoSH Act. Highlighting that such incidents ought to be viewed from the perspective of a woman’s subjective experience, the Court held that the standard applied to such cases is not that of a ‘reasonable man’, but of a ‘reasonable woman’. Further, the Court also remarked on the seriousness of the acts by emphasizing that they could not be left unheeded as innocent flirtation or mistakes. Similarly, in Ajay Tiwari vs. University Of Delhi And Ors., the Hon’ble Delhi High Court held that messages and voice calls having sexual overtones would attract the charge of sexual harassment.
It is noteworthy that online sexual harassment may also attract penal provisions of other acts such as the Information Technology Act, 2000, and Indian Penal Code, 1860. The Hon’ble High Court of Kerala in Majeesh K. Mathew vs. State of Kerala, while considering charges under the said acts, held that sexually explicit comments on social media against a woman amount to online sexual harassment. The Court went so far as to explicitly call out online baiting and observed that the freedom offered by social media cannot be exploited by branding a woman as sexually promiscuous.
Challenges & Dilution of the PoSH Act Amidst COVID-19
The lockdown and sudden shift to remote working have posed many challenges to the proper implementation of the PoSH Act. In many ways, it has diluted the already ill-implemented laws of sexual harassment at workplace. Various unique issues have emerged, which could have potentially been avoided if our laws were clear and comprehensive.
Reporting & Internal Committees
Many women refrain from reporting online sexual harassment due to the fear of losing their jobs amidst lockdown. Under the current circumstances, even those who gather the courage to report are typically left unattended as HR personnel and businesses are busy with their efforts to recoup massive financial losses.
The PoSH Act makes it mandatory for all workplaces to have in place comprehensive policies and Internal Committees (“ICs”) to inquire into workplace sexual harassment. Under the veil of the pandemic, organisations are increasingly disregarding their obligations of constituting and ensuring the functioning of ICs. These are tasks that could easily be done online. However, in many cases organisations have refrained from constituting ICs during the lockdown. Where ICs have been constituted, they are either defunct or not in compliance with the provisions of the Act.
Despite having the ability to hold inquiries through video conferencing, many have reportedly brought inquiries to a complete standstill while also flouting the mandate to complete inquiries within 90 days. Recently, the Ministry of Corporate Affairs has allowed board meetings to be held through video conferencing or other audio-visual means. The Hon’ble Supreme Court too has encouraged the use of video conferencing. However, organisations have blatantly misused the lockdown to halt proceedings, which could have been conveniently conducted. In some cases, respondents have also requested ICs to put proceedings on hold in lieu of the lockdown restrictions. This leaves ICs in a conundrum as they are unable to complete inquiries in a timely manner.
Problems in Online Inquiries
It is possible, however, that some organisations may also be facing genuine challenges in holding inquiries online. The PoSH law being fairly nascent remains ambiguous on many aspects. This has thrown pending workplace sexual harassment inquiries into uncertainty.
For instance, while there is no bar to holding cross examinations through videoconferencing, there are logistical issues in doing so. As ICs are granted the powers of a civil court, they cannot breach the basic principles of civil procedure. Online cross-examinations could allow room for such breach. A person deposing may have lawyers prompting them through the process, which is otherwise prohibited by law.
Holding inquiries through video-conferencing could also potentially lead to breach of confidentiality and privacy. Participants of inquiries may be uncomfortable holding conversations about such sensitive matters while they are in the confines of their homes. Besides, being around family during such calls could lead to unsolicited disruptions and distractions.
Another practical problem with holding inquiries online is that some participants, including members of the IC may not have the technological know-how to operate apps used for such proceedings. This may interrupt the proceedings or lead to breach of confidentiality, vitiating the entire inquiry. Even in cases where no such technological issues exist, complainants or respondents may object and refuse to attend due to the fear that their privacy may be compromised. In such a scenario, the proceedings will inevitably be prolonged or put on hold as the Act requires ensuring mental health and comfort to both parties.
Local Committees & the Role of State Governments
In cases where an organisation has less than ten employees, the Act allows working women, whether in the organised or unorganised sector, to report sexual harassment to Local Committees (“LCs”). These committees also come into play when a complaint is directly against an employer. As per the Act, each district is mandated to have one LC, which would have the jurisdiction to hear complaints of workplace sexual harassment in the district.
State Governments are empowered to appoint a District Officer for each district in a state who is responsible for the appointment of members of LCs. Unfortunately, many districts have not constituted LCs in accordance with the Act. Even where they are constituted, they lack technological competence to deal with complaints and conduct inquiries online. During the lockdown, many aggrieved women who reportedly wrote to LCs received no response from the authorities whatsoever. In cases where LCs responded, little to no action was taken due to shifted priorities.
All things considered, the purpose of the PoSH Act is largely defeated due to technological challenges and legislative inadequacies.
Harassment of women is as real online as it is offline. In the times to come, we are likely to continue working virtually, and these issues are bound to become more apparent as the number of online sexual harassment cases increase. Sexual harassment has a lasting impact on the psychological health of women, which could further wreck their careers. Women’s participation in the workforce is already abysmal and is likely to worsen post-pandemic. It is, therefore, imperative that women’s employment issues are given priority in our recovery efforts.
The Central Government should focus on addressing the glaring gaps in the existing legislation going forward. Ambiguities ought to be removed, keeping in view the new reality of a virtual workplace. State governments must take it upon themselves to ensure that LCs are constituted in every district and that members of LCs are technologically trained to meet the needs of an evolving online world. Inquiries should be held online and not delayed on the pretext of lockdown restrictions.
Organisations should adopt guidelines and rules of conduct that specifically address remote-working and inculcate a culture of sensitivity towards women. Managements must make efforts to incorporate such rules of conduct in sexual harassment policies. Moreover, organisations should amend their service rules to enable cross-examinations and holding of inquiries online. So far as possible, women should be given flexibility to choose their working hours so that they are able to take care of other responsibilities without feeling overburdened. Organisations must also invest in training employees so that they are wary of boundaries they need to maintain while working remotely.
Sexual harassment at workplace, even if it is online, is a gross violation of a woman’s right to dignity, life, and liberty. Not only does it impede a woman’s ability to deliver in today’s competitive world, it has serious implications for our society. Government and private players must make coordinated efforts to ensure that women are able to take advantage of the opportunities offered by remote working, rather than being disadvantaged because of it. As we continue to face peculiar challenges posed by the pandemic, we must endeavour to bring our laws and use of technology in line with the reality of an ever-evolving virtual workplace.