The POSH Act, 2013 indicates that any sexually-coloured action by a person that can have a negative impact is considered as sexual harassment. It is not necessary for the victim to be present when the harassing behaviour occurs.
Now there arises another question. What about the respondent’s team members who had to listen to the manager’s abusive and offensive language? Were they subjected to harassment? If the manager’s behaviour has offended his team members, it definitely is harassment. According to the concept of indirect harassment, it is not necessary that the complainant must be the target of harassment. Anyone who witnessed harassing behaviour can also file a complaint as they were subjected to indirect harassment. Remember, it is not the intention of the respondent that is to be counted, but the impact on the victim.
Indirect harassment occurs when the act was not aimed at the employee but creates a toxic atmosphere, or if simply put, a secondary victim is offended by an unwelcome conduct. This can manifest in several ways. A person is subjected to indirect harassment if he/she:
- Overhears an offensive joke or remark
- Accidentally sees an email that is sexual in nature
- Comes across offensive pictures displayed on a colleague’s desk or saved as a screensaver
- Is part of a WhatsApp group, the participants of which share offensive images and messages
- A co-worker gossips about them in their absence or
- Witnesses someone being sexually harassed, for example, coming across derogatory nicknames used for co-workers or passing sexist comments towards a co-worker.
Indirect harassment is also referred to as non-direct harassment and is as serious as direct harassment. There have been instances when the employer has stumbled upon a complaint of indirect harassment and was contemplating on whether the complaint should be addressed by IC or HR.
It is important to note that the psychological impact of indirect harassment can also be severe and hence should be handled by the IC with the same importance given to a complaint of direct harassment. Investigation of the complaint will follow the same procedure as of any other sexual harassment complaint. The topic of indirect harassment should be covered in the regular POSH training as well. Check out our fully customizable POSH training.
When in dilemma, IC can use the thumb rule of employees’ perception of safety. If any act has sexual overtones and has the potential to threaten the employees’ sense of safety within the workplace, it must be considered as sexual harassment and the behaviour has to be addressed at the earliest.