This article is written by Shraddha Vasanth, who is pursuing a Diploma in Labour, Employment and Industrial Laws (including POSH) for HR Managers from LawSikho.
“You can kill a person once, but when you humiliate him/ her, you kill him/ her many times over” – The Talmud
Table of Contents
Workplace harassment can take many forms, but broadly it means any offensive, threatening, unwelcome act or behaviour of an individual or a group, who could be a senior or colleague or even a sub-ordinate against another individual or a group within the same workplace. While the most prominent form of harassment at the workplace is physical, it is not uncommon to be abused via the intranet or any other electronic medium.
Even before the setting in of the COVID-19 pandemic induced restrictions, the home had become an extended workplace as employees are constantly expected to attend to the demands of work everywhere, whether they are physically present in the office or even outside of work hours. The pandemic only took this to a whole new level. For a world that is increasingly becoming more technologically connected than ever before and work-from-home becoming the norm, online harassment at the workplace is a menace that requires the immediate attention of employers, employees and regulators alike. This article aims to throw light on what constitutes online harassment at the workplace and the legal and other remedies that can be availed to tackle the same.
- Workplace harassment
- Cyberbullying or online harassment
- Recent cases of online harassment by employees
- Impact of harassment on the victim
- Legal provisions
- What can companies do?
The terms workplace harassment, workplace aggression, workplace bullying are often used interchangeably to mean the same thing. Workplace Harassment is a broad term, that includes any form of threatening, belittling, unwelcome behaviour against the employee by a colleague or supervisor. Research has shown that about 25% – 85% of women in the US and about 13% of women in the UK have experienced some form of sexual harassment at the workplace. And while it is more common for women to face harassment, men too have increasingly become victims of such abusive behaviour. In India, more than 55% of employees face some form of harassment at the workplace and the pandemic has only worsened the situation by enhancing the threat of harassment; as after covid, online harassment has increased by over 5 times! While harassment may be physical or online; and it can be further categorized into the following kinds:
1. Discriminatory harassment
This includes discrimination of an employee on the basis of gender, race, caste, sexual orientation, disability, mother tongue, family background, citizenship etc. Some examples are male nurses being harassed because nursing is predominantly perceived as being a woman’s job, religious jokes, discrimination at the time of hiring or giving promotions based on any of the above criteria.
2. Physical harassment
This could be termed workplace violence also and may lead to assaults in certain cases. It could also lead to strikes taking a violent turn in offices/ factories.
3. Sexual harassment
This is one of the most prevalent forms of workplace harassment and is generally aimed against women. Sexual harassment essentially stems from power hierarchies in the workplace between the victim and the perpetrator. This could take the form of quid pro quo (meaning this for that like offering promotion or perks in return for sexual favours) or creating a hostile environment for the victim; it could also be done to avenge a refusal from the woman employee. Some of the examples include making sexually coloured remarks, jokes which are sexual or obscene in nature, showing pornography, inappropriate touching or any other act which is unwelcome to the employee.
4. Psychological harassment
Anyone or more forms of abuse invariably has an impact on the psyche of a person and this constitutes psychological harassment. It could also be on account of continued personal attacks on the person, isolation at the workplace, spreading rumours, gossiping, verbal abuse etc.
Cyberbullying or online harassment
Any or all of the above-mentioned abuses can be done either physically, in person or they could be perpetuated using electronic means. Thus, cyberbullying/cyberstalking is an intentional and repeated abuse, harassment or exploitation of another person using electronic devices or over the internet. Workplace online harassment or cyberbullying is an offshoot of the broader term and essentially revolves around three criteria – the intention of the perpetrator to harm the colleague/ employee, the action is repeated in nature and creates or takes advantage of an imbalance of power structures within an organisation.
While online harassment could take place in any of the ways mentioned above, like discrimination, personal, verbal or sexual, there are certain unique and more precarious forms owing to the anonymity that comes online. Some of these are:
- Posting fake information about the employee or character assassination,
- Taking revenge by hacking the accounts of the victim,
- Making derogatory or obscene comments,
- Posting private information without permission.
Recent cases of online harassment by employees
Cases of online harassment by employees or supervisors have been reported post the pandemic across the world, some such cases are:
- The case of the security startup Verkada in the US, wherein some employees were using the company’s own facial recognition cameras to take photos of female employees without their knowledge and then make sexually explicit jokes about them on another channel called Slack.
- There have also been cases where employees were attending to work-related video calls from their bedrooms and were inappropriately dressed.
- Lack of fixed working hours, unexpected video/ audio calls, calls late in the night have only added to the woes of employees, especially women employees and all of these surely are forms of online harassment. It is also reported that more than 1,000 cases of such cyber harassment were lodged in 2-3 states in India.
- There have been managers who have insisted women turn on the video against their wish or asked them to come closer to the camera or insisted that they cannot see them properly and most employees initially, heed to the demands so as to not lose their job. However, it’s only when it gets too demanding that they actually realise that they are being harassed!
- There have also been reports of employers/ bosses/ colleagues asking women about the clothes they were wearing and other such intrusive questions. There are several instances of inappropriate dressing by colleagues or bosses during video calls as well. Such instances of online sexual harassment are on the rise after the lockdown and have increased by over 14% as compared to 2018.
- A lot of women have also been discriminated against on the basis of gender and have been at the receiving end of comments about the “real job” of women. Men too have been derided for taking part in household chores.
- Sending inappropriate emojis, sexually explicit photographs, taking screenshots of women employees etc. are some of the acts of harassment that are emerging off late.
Impact of harassment on the victim
The impact of any form of abusive or abrasive behaviour invariably takes a toll on the physical as well as mental health of the victim. The employee initially gives in to pressures of loss of job or peer pressure or power structures, however, slowly, it creates an imaginary world that is often, far from ground realities. They face mental health problems like depression, low self-esteem and even suicidal behaviour. This in turn impacts their productivity at work.
As for the company, it leads to attrition as employees eventually leave the job if the company does not take appropriate and timely measures against harassment. It even leads to loss of company reputation among customers and investors. There would, of course, be legal consequences as well.
There is no specific law that deals with either online harassment or cyberstalking in India. However, the overarching framework of the Information Technology Act, 2000 as well as the Indian Penal Code does provide protection against online harassment. Moreover, the Sexual Harassment of women at the workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) is special legislation that deals with sexual harassment of women at the workplace.
1. The Indian Penal Code (IPC)
Some of the provisions that deal with harassment are given below:
- Section 292: This section prohibits the sale, distribution, public exhibition, advertisement etc. of obscene material and anyone held guilty of doing the same is punishable with imprisonment for a term extendable up to 2 years and a fine of Rs. 2,000/- and in case of repeated offence, the punishment will be imprisonment for a term extendable upto 5 years and a fine of Rs. 5,000/-.
- Section 292A: This section prohibits the printing, circulation or advertisement of any material that is a grossly indecent or scurrilous matter or blackmail by way of selling, advertising indecent matter. This offence shall be punishable with imprisonment for a term extendable upto 2 years or a fine of Rs. 2,000/- or both, and in case of a second or subsequent offence, the punishment increases for another term ranging from 6 months to 2 years.
- Section 354A: This provision provides punishment against sexual harassment, demand for sexual favours intended sexual harassment, or making sexually coloured remarks. The punishment for sexual harassment is imprisonment for a term extendable upto 3 years or fine or both; and for making sexually coloured remarks, the man can be imprisoned for a term extendable upto 1 year or fine or both.
- Section 354D: This section prohibits stalking or contacting or attempting to contact a woman against her wish. Moreover, this provision covers both physical as well as cyberstalking of a woman and the punishment in case of offence is imprisonment of 3 years and in case of a subsequent offence, the imprisonment increases upto 5 years.
- Section 499: This section provides a remedy to a person against defamation i.e., loss of reputation in public.
- Section 507: This section prohibits criminal intimidation by way of anonymous communication and the punishment prescribed is imprisonment extendable upto 2 years.
- Section 509: This provision prohibits a person from insulting a woman with any word or gesture with an intention to insult her modesty; this offence is punishable with imprisonment for a term extendable upto 1 year or fine or both.
2. The Information Technology Act, 2000
- Section 66A – This provision provides punishment to any person who sends, either through either a computer resource or communication device or electronic mail, offensive messages, or causes annoyance, intimidation, or danger to another person; this offence is punishable with imprisonment for a term extendable upto 3 years and with fine.
- Section 66C – This section prohibits identity theft and punishes the culprit with imprisonment for a term extendable upto 3 years and with a fine extendable upto 1 lakh.
Section 67 – This section prohibits the publishing or transmission of obscene material in electronic form; this offence is punishable with imprisonment for a term extendable upto 3 years and with a fine extendable upto 5 lakhs. In case of subsequent offences, the term of imprisonment may be extended upto 5 years and a fine upto Rs. 10 lakhs.
- Section 67A – This provision prohibits the transmitting or publishing material that contains sexually explicit acts; this offence is punishable with imprisonment for a term extendable upto 3 years and with a fine extendable upto 10 lakhs. In case of subsequent offences, the term of imprisonment may be extended upto 7 years and a fine upto Rs. 10 lakhs.
3. The POSH Act
- Section 3: This section prohibits sexual harassment of a woman at the workplace and defines sexual harassment to include quid pro quo as well as the creation of a hostile environment for her. It also encompasses any humiliating treatment that is likely to affect the health or safety of the woman employee.
- Section 19: This section casts a duty on the employer to provide a safe working environment to all women employees, constitute the Internal Complaints Committee to deal with any acts of sexual abuse as well as to conduct training and sensitization programmes for all employees.
- Section 2(o): The crux of this law lies in the definition of the term ‘workplace’ to include not just the office where the woman is working but also includes any other place that is visited by the employee, which is arising out of or during the course of her employment with the organization. This is a vast provision and the courts have, in several cases such as Sanjeev Mishra vs. Bank of Baroda, Ayesha Khatun vs. The State of West Bengal & Ors, Saurabh Kumar Mallick vs. The Comptroller and Auditor General of India & Ors, upheld that the term workplace is to be given a wide and liberal interpretation to also include work-from-home and remote working options.
What can companies do?
While the law does provide ample protection against various forms of online harassment, there is an increasing need for companies/employers to protect the interests of their employees from all forms of workplace harassment. Some action points for companies are given below:
- Review existing anti-harassment policies and also regularly update them so as to include remote working and other latest technology.
- Undertake training and sensitization programmes about all forms of harassment. Lay down clear protocols of acceptable and unacceptable behaviour at the workplace. Training is known to boost a safe working environment, which in turn improves the productivity of the employees. It also helps to build trust and loyalty with the organization.
- Ensure that senior management also participates in the training as this makes the training more effective and ensures that anti-harassment policies are taken seriously. Additionally, it also helps break down rigid power structures and gives a message that all employees are treated fairly and equally in the organization.
- Implement mechanisms and procedures for raising complaints and reporting incidents. And in case an incident does occur, ensure that the investigation and actions are taken in accordance with the anti-harassment policy.
- Provide training on digital privacy and digital security to all employees to create awareness about privacy and safe use of social media accounts, both in their professional as well as personal life.
- Adopt professional cybersecurity services to ensure that personal details of employees are not available to data brokers
Technology, today has invaded our lives at various levels, on all interaction platforms such as the internet, social media platforms, cellphones, computers, text and messaging platforms etc. and the use of technology is only going to increase in the years to come. With the onset of the pandemic, our reliance on digital technology has dramatically increased and so has workplace online harassment. It is thus, not an issue limited only to offices and workplaces but has become a social issue. Hence, there is a need to weed out this problem at various levels.
Until recently, organizations typically perceived online harassment as a lesser threat compared to physical abuse, especially in cases of sexual harassment. However, with various cases of harassment being reported from all quarters, it is the responsibility of employers to pitch in and make it safe for their employees to work, especially now since all of us are grappling with the pandemic and its after-effects! Implementing anti-harassment policies, training and timely intervention in case of an incident can go a long way in creating safe working conditions.
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