“Sexual harassment in the workplace confuses rewards for performance with rewards for attractiveness for sexual availability.”
Introduction
Sexual harassment is a recurrent issue which is pervasive in all spheres of life of women who are victims of it. CEDAW[1] describes it as an uncivilized, unethical, immoral and a fundamental legal wrong which exists universally. It can happen in the form of “accidental” brushing against a woman’s body or an unwanted touching or kissing to a physical assault[2] such as rape. It can be in verbal form as well: sexually suggestive language,[3] comments about a woman worker’s body, sexual slurs or outright solicitation of sexual intercourse.
Sexual harassment at workplace is generally classified in two groups: ‘Quid pro quo’ and ‘Absolute harassment’ The quid pro quo harassment[4] also known as tangible harassment[5] happens when an individual’s submission to or rejection of sexual conduct is used as the basis for employment decisions affecting that individual. The tangible nature of this harassment is visible in forms of termination, demotion. Or failure to be hired or promoted when the individual does not submit to the sexual conduct at her workplace.
In contrast to quid pro quo harassment, absolute or intangible harassment. This involves no threat to a concrete job benefit. But instead creates a hostile work environment through unwanted, sexually offensive conduct.[6]Hostile environment harassment is when the environment becomes sexually aggressive(hostile) enough to interfere with work. It could be in the form of comments about the body, repeated sexual remarks. Pornographic pictures on display, and touching or grabbing private body parts.[7]
Tort
Tort is derived from Latin term ‘Tortum’ which means to twist. It implies a conduct which is twisted or tortious.[8] Basically, it is a civil wrong, the damages to which could be recovered by an action of unliquidated damages. The concept of Tort for sexual harassment is a new concept which is yet to develop in a full-fledged manner.
Essentials To Prove Tort
1. An act or omission
It should be an act prohibited by law.
2. Legal damage
There should be an infringement of the legal right of the victim however actual harm is not necessary. This is the principle of injuria sine damnum injury without damage which needs to be proven.
3. Legal Remedy
The victim should be able to avail the legal remedies such as injunction, damages etc.
Suit for Sexual Harassment
Since there is no specific Tort of Sexual Harassment, the culprits are held accountable; under other provisions of Tort Law such as assault, battery, false imprisonment and intentional infliction of emotional distress.
- Assault
An assault is an attempt or threat to do a corporal hurt to another; coupled with an apparent present ability and intention to do the act.[9] The liability for it requires a that (a) the actor intended to cause harmful or offensive physical contact. (b) The victim was put in apprehension of such conduct.
- Battery
Battery consists of a harmful or offensive contact that’s offensively caused. [10]
In the context of sexual harassment, these two theories(assault and battery) are useful as long as the victim has either experienced(battery) or expected(assault) offensive or harmful physical contact.
- False imprisonment
False imprisonment means a total restraint of the liberty of a person, for, however, short time, without any lawful excuse. To constitute this wrong, two things are necessary- firstly, there must be total restraint of the liberty of a person which may be by actual use of physical force or constructive use of authority and power; and secondly, the detention must be unlawful.[11]
These torts are direct to protect the integrity and sanctity of physical areas a person. This would naturally consider private and off-limits to uninvited, unwelcome and prying persons.
- Intentional Infliction of Emotional Distress
The victim in order to prove that she has suffered emotional distress due to intended act of defendant must show that the defendant’s conduct was outrageous and he either intended to cause distress or acted carelessly leaving with the probability of intending to cause emotional distress to the plaintiff. Further, the plaintiff needs to also prove that she actually suffered emotional distress due to the defendant’s act which thus shows his intent.[12]
Thus, if a person commits such kind of acts of assault, battery, false imprisonment intending to cause emotional distress to the victim in order to sexually exploit her can be held liable.
Defences Against Sexual Harassment
- Consent
If the plaintiff has give consent for the sexual conduct by the defendant or has agree to for such sexual relations. Then the defendant will not be liable because of the defence of consent. The consent of the victim negates the charges as assault is something which is against the will of the victim.
- Innocence
The defendant can take a defence of being innocent by showing that he was not present at the time when the incident occurred. This defence is known as alibi i.e somewhere else. But this should be supported with credible evidence.
- Insanity or Mental Capacity
The defendant can take the defence of mental incapacity by showing that at the time the wrong was committed, he was not able to understand that it is wrong. This can absolve him from his liability.[13]
Stance Of India With Respect To Sexual Harassment
In India, a new civil remedy was recognised by the Supreme Court following the case of Vishaka vs State of Rajasthan.[14] The aforementioned Vishaka judgement was a result of the brutal gang rape of a social worker Bhanwari Devi in Rajasthan because she tried to stop a child marriage. This is a landmark case in the history of the judiciary as it was the first authoritative judgement on Sexual Harassment in India by declaring it as a constitutional tort. In this judgement, it was held that even working women have rights to gender equality, to work with dignity and to a working environment, safe and protected from sexual harassment or abuse under article 15[15], 21[16], 19(1) of the Indian Constitution. The court made certain guidelines and decided that these guidelines should be used until legislation on such issue is not made.
Later, the Parliament passed a law named as Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 on the recommendations of the Justice Verma Committee Report on Sexual Harassment. This act protects women against sexual harassment at workplace and provides for redressal of complaints of sexual harassment.
Need For A Separate Tort Provision Of Sexual Harassment
With the various provisions of Tort law such as assault, battery, false imprisonment and intentional infliction of emotional distress, the victim of sexual harassment can avail damages such as punitive, exemplary etc. However, these provisions do not give proper satisfaction for the pain and suffering caused to the individual due to the harassment as it disables the plaintiff to recover for mental agony. Assault gives remedy only in case of immediate threat but it ignores the hostile work environment where there is no explicit immediate physical threat but an enormous amount of sexual slurs which causes pain to the victim. Further, even though tort of intentional infliction of emotional distress provides for mental anguish in some way, the term outrageous is not clearly defined and therefore poses obstacles for recovery. The recovery also depends on the jurisdiction’s standards.
Furthermore, due to the principle of vicarious liability, the actual harasser is often not held liable rather the employer is held liable.[17] The main difficulty with tort law is finding liability at all, under any theory. In its present form, therefore, tort law does not provide a satisfactory basis for relief for sexual harassment. Thus, there is a need for an independent theory of tort for sexual harassment. It would provide an adequate remedy for the harm suffered by individual employees.
Conclusion
Sexual harassment at the workplace is an evil in the society which needs to be reduced and the damages of which should be provided for. Tort Law fails to redress fully the severe emotional and physical harm caused by sexual harassment in the workplace thus leading to a need for a new Tort for Sexual Harassment.
References:
[1] Convention on the Elimination of all Forms of Discrimination Against Women is an international treaty adopted in 1979 by the United Nations General Assembly
[2] Tomkins v. Public Serv. Elec. & Gas Co., 422 F. Supp. 553 (D.N.J. 1976)
[3] Kyriazi v. Western Elec. Co., 461 F. Supp. 894, 934 (D.N.J. 1978)
[4] Williams v. Saxbe, 413 F. Supp. 654, 656 (D.D.C. 1976)
[5] Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986)
[6] Ibid.
[7] Diane Freeman, Sexual Harassment Consumer HealthDay (2020), https://consumer.healthday.com/encyclopedia/work-and-health-41/occupational-health-news-507/sexual-harassment-646419.html (last visited May 16, 2020).
[8]Boulton v. Hardy (1597) Cro. Eliz. 547, 548
[9] Ratanlal Ranchhoddas et al., Ratanlal & Dhirajlals the law of torts: with exhaustive notes, comments, case-law references, also containing commentary on Motor Vehicles Act, 1939, chapter vii-a and viii, Motor Vehicles Act, 1988, chapter x, xi and xii, the Consumer Protection Act, 1986 (LexisNexis Butterworths Wadhwa Nagpur) (2010)
[10]Supra note 9.
[11] A CRITICAL STUDY ON TORT OF SEXUAL HARASSMENT: AN IN-DEPTH STUDY OF HARASSMENT AT WORKPLACE IN INDIA Site Title, https://legalvoiceblog.wordpress.com/2016/12/02/role-of-trademark-in-marketing/ (last visited May 16, 2020)
[12] John W. Salmond, Jurisprudence (Gaunt, Inc.) (2012)
[13] Can the Victim of a Sexual Assault File a Civil Lawsuit? www.alllaw.com, https://www.alllaw.com/articles/nolo/personal-injury/victim-sexual-assault-file-civil-lawsuit.html (last visited May 18, 2020)
[14] Vishaka vs State of Rajasthan, AIR 1997 SC 3011
[15] Prohibition of Discrimination on grounds of Religion , race , caste , sex , place of birth or any of them
[16] Protection of Life and Personal Liberty
[17] See Mark McLaughlin Hager, Harassment as a Tort. Why Title VII Hostile Environment Liability Should Be Curtailed, 30 CONN. L. REv. 375, 379 (1998); Ellen Frankel Paul, Sexual Harassment as Sex Discrimination: A Defective Paradigm, 8 YALE L. & POL’Y REV. 333, 346 (1990).
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