Sexual harassment in co-working spaces. What does the law say?Ruchi Goel
How can co-working spaces address sexual harassment? Does it come under the ambit of the workplace?
I visited a co-working space in Bengaluru recently. While some people were racing around the copier machine, some were chatting in the cafeteria. There were few others who were sitting in pods glued to their laptop screens. It looked like any other workplace (except they had better coffee). I saw an amalgam of different cultures as people working at a co-working space belong to diverse industries and backgrounds. It is certain that these people interact and perhaps, collaborate with each other and, this made me wonder how such places would address sexual harassment issues.
In this #MeToo world, we certainly need to be aware of the issues that could potentially emanate from sexual harassment at co-working places. In India, sexual harassment is dealt under the Indian Penal Code and the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH).
While the Indian Penal Code covers sexual harassment in general, the latter is confined to sexual harassment occurring at a “workplace”. People often assume that ‘workplace’ is limited to the office space. However, this notion is erroneous as the POSH Act defines ‘workplace’ to include any place visited by an employee arising out of or during the course of employment. This implies that business trips, transportation (made available by the employer) would also come under the ambit of ‘workplace’. Further, the POSH Act does not necessitate a woman to be the ‘employee’ and therefore, even an intern, visitor, or a customer can raise a concern under it.
A hypothetical #MeToo
For the sake of convenience, let us think about a hypothetical scenario – Sarita works in a mid-sized startup and has the convenience to work from different locations apart from the firm’s office space. She later started working from a co-working space. She had a meeting with one of the investors (who was her guest) at the co-working space. The meeting took place in a closed cabin. Sarita came out of the cabin and went directly to the manager of the co-working space, popularly called as community/people manager. She complained that the investor made inappropriate gestures at her.
What is the duty of the community manager here? Given that the co-working space is an extension of Sarita’s regular workplace, it would come under the ambit of ‘workplace’ under the POSH Act.
This implies that the ICC (if any) constituted by the start-up is under a statutory obligation to take an action, per the POSH Act. Sarita needs to remember that the co-working space is not her employer and the POSH legislation casts duty only on the employer. The co-working manager may consider advising Sarita to file the complaint with her firm or with the police.
The above is a fairly simple situation. It may become complex when sexual harassment is alleged against the co-working space’s employees or clients/members. If it is the former, the complaint should be entertained by the Internal Complaints Committee constituted by the co-working space for its own employees. Where the complaint is against the member of the co-working space, the community manager should forward the complaint to the organisation represented by such member. As a matter of caution, it is recommended that co-working spaces address the consequences of sexual harassment complaints in their member terms and conditions.
Where does the complexity begin?
Co-working spaces are thriving, in part, due to the flourishing gig-economy, which implies more and more freelancers. Freelancers do not represent or work for any particular organisation.
Therefore, it is important to determine who is under a legal obligation to address sexual harassment complaints in cases where freelancers are involved. The more interesting question is whether a complainant can sue the co-working space for appearing to promote or foster an environment allowing for perpetrators, through inaction or lack of regulatory clarity. Considering that sexual harassment incidents may adversely impact the business of co-working spaces, it is essential for them to address these issues properly and within a reasonable time frame.
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