Are Online Aggregators covered under the ambit of the POSH Act?

Sexual harassment is a violation of fundamental rights enshrined under the Constitution of India. The root cause of sexual harassment relates not much to the actual biological differences between men and women, but a display of disparity in power attributed to both men and women in social and economic life and perceptions about sexuality in society.

Are Online Aggregators covered under the ambit of the POSH Act?

Now the question that arises is whether aggregators which are digital platforms, can they be termed as “Employer” as defined under the POSH Act?

Aggregator by definition, act as intermediaries connecting service providers with its customers via technology i.e., digital media platforms who must ensure that all parties involved in their platform whether it be service providers or customers, are protected from acts of sexual harassment.

Aggregators, being digital platforms, can be considered as principal employers under the POSH Act. The term “Employer” has been defined under Section 2(g) of the Act in a much broader sense which includes person who are responsible for the management, supervision and control of the workplace.

Liability of Online Aggregators:

As a person supervising or operating the platform, he/she can be considered as principal employer. That is to say, the principal employer is obligated to ensure that his/her employees including visitors or third party service providers are not subjected to any sort of sexual harassment (i.e., whether as victims or perpetrators) at workplace and if they are, it is the employer’s responsibility to provide full assistance, to create a redressal mechanism and to initiate strict actions against the perpetrator as stated in Section 19 of the POSH Act. This may not only lead to a safer and better working environment for the employees but shall also result in productivity and efficiency which may further lead to overall growth of the organization.

The aggregators tend to get rid of their liabilities by relying on the general rule that states that a person committing wrong shall be liable for his/her own act. But they fail to understand herein that the applicability of doctrine of vicarious liability exists, which refers to a legal principle that holds one party (principal) responsible for the actions or omissions of another party (employee/agent) that occur within the scope of their employment or agency.

In the case of online aggregators for instance, Uber or Ola, the question of vicarious liability arises in situations wherein a driver, who is considered as an independent contractor is accused of committing an act of negligence or wrongdoing while providing the services through aggregator’s platform. However, the extent of liability under POSH Act is determined by analyzing and examining the relationship between the parties involved. Since, the relationship between the driver and rider is merely because of the contractual terms, the incident of sexual harassment arising therefrom, is construed within the regime of workplace as defined under the Act.

In 2017, Uber faced a high-profile sexual harassment case that led to the resignation of its CEO Travis Kalanick. The case was brought forward by a former engineer, Susan Fowler, who published a blog post detailing her experiences of sexual harassment and gender discrimination at Uber. Fowler’s post spread like a fire, which further encouraged many other women to voice against incidents of sexual harassment with similar stories, leading to a wider investigation into Uber’s work culture. The investigation resulted in a report, which included recommendations for improving the company’s policies, increase in diversity and inclusion, training programmes and channelizing the mechanism for addressing and handling sexual complaints.

In February 2023, a notice was issued to Company Dunzo by the Delhi Consumers’ Disputes Redressal Commission seeking INR 50 lakhs for negligent hiring and alleged sexual harassment by one of its delivery partner. It was held that such behavior amounts to deficiency in service and therefore, the dispute under the Consumer Protection Act was rightly raised before an appropriate forum.

Implementation of various policies by online aggregators to prevent sexual harassment at workplace:

The aftermath of the Uber 2017 case led to a public outcry and significant amendments in their policies, as listed below.

1. Training: Uber made it mandatory for all employees including drivers, to spread awareness of sexual harassment and for prevention and reporting of such incidents. The training covers topics including but not limited to identifying appropriate behavior, responding to complaints and promoting a respectful workplace culture.

2. Anonymous reporting: Uber established a confidential reporting system, a 24*7 hotline for employees to report any incidents of sexual harassment, discrimination, bullying and unprofessional behavior.

3. Investigation: Uber strengthened its investigation process for cases of sexual harassment. It now conducts a thorough investigation of every complaint and the investigation is overseen by a dedicated team.

4. Enhanced Background checks: Uber adopted more stringent background check requirements for drivers and added continuous background checks to ensure that they are maintain safe driving records and do have any criminal convictions

5. Termination for misconduct: Uber made it inevitable that sexual harassment will not be tolerated and it has implemented zero tolerance policy for any employee who engages in sexual harassment or discrimination. The company reserves the right to take disciplinary action against the perpetrator, including but not limited to termination.

6. Implementation of a “no retaliation” policy: Uber made it clear that any employee who reports sexual harassment or other forms of misconduct will not face any sort of retaliation.

7. Transparency and Accountability: Uber has committed to publicly report the incidents of alleged sexual misconduct in hope of establishing more transparency about the issue throughout the ride-hailing and traditional taxi industries.

8. Introduction of new policies: Uber introduced new policies to prevent and address sexual harassment such as code of conduct for riders and drivers, a policy prohibiting romantic relationships between employees and customers. It also provides a 911 assistance button, real time location sharing and two-factor authentication in order to work on improving its culture and preventing harassment and discrimination.

9. Disguised Phone Numbers: After the launching of “Number Masking” a new feature by Ola, Uber also came up with a new feature called “Disguised Phone Numbers” that aims to connect the riders and drivers with an anonymous number, without knowing the actual one. This new feature has been established to enhance security before, during and after ride.

Overall, Uber has taken significant steps to address sexual harassment and improve its workplace culture since the 2017 case.

Similarly, Amazon has also implemented a code of conduct setting out basic guiding principles, including no retaliation or victimization, zero tolerance policy on any kind of harassment, discrimination, intimidation or inappropriate language towards any employee.

To conclude, all online aggregators are recommended to implement policies for preventing sexual harassment at workplace, including a code of conduct, training and awareness program, no-retaliation policy and redressal mechanism which shall contribute in creating a safe and respectful workplace for all that is free from sexual harassment and discrimination.

Source-#livelaw

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External Committee Member-Handing POSH cases

? Drafting a Policy/Review of existing POSH-related policy

? Formation of Internal Committee

? Employee Awareness Training

? Internal Committee (IC) Training

? Managing POSH Compliance

? Filing Annual Return

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