Tort of Sexual Harassment

Study of Harassment at Workplace in India

Supervised by:Dr. Yugal Kishore

National Law University and Judicial Academy, Assam

Presented by:Abhishek Rathore (SM0114003)Khushboo Damani (SF0114016)

Ankit Bhandari (SM0114048)1st Semester, B.A.,LL.B (Hons) FYIC

Research Problem

Analysing the principles and provisions of the ‘Tort of Sexual Harassment’ with an in-depth study of harassment at work place- its effects on employees, liability of the employers and, remedies and sanctions for the victims.

Scope and Objectives

Research Methodology

METHODS

EXPLANATORYDOCTRINAL ANALYTICAL

Sexual Harassment as a Tort

• CEDAW defines sexual harassment as- “An act which includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions.”

Contd.

• Tort actions are affective means for remedying the wrong of sexual harassment, but they have not been extensively used. Despite the seriousness and pervasiveness of the wrong, very few law suits are initiated.

• Hence, it becomes necessary to explore the basic principles of tort law which recognises sexual harassment as a cause of action in torts.

Sexual Harassment as a Tort

BasicElements

AssaultBattery

FalseImprison-

mentIntentionalInfliction

OfEmotional

Distress

Principles of Tort Law thatQualify Sexual Harassment as actionable

Malice

Intention

Motive

Civil Suit for Sexual Harassment

Civil Suit for Sexual Harassment

Assessment of Damages

• The amount and type of compensation that is available in a civil lawsuit over sexual abuse depends on the specific facts of the case, and the legal theory on which the personal injury lawsuit is based, such as Assault and Battery, or Intentional Infliction of Emotional Distress.

• Due to the heinous nature of these crimes, a jury will often award very high damages.

Contd.

• Substantial damages may, therefore, be awarded even when there is no physical injury, simply for the invasion of the right itself.

• Exemplary damages may be awarded where the trespass to person occurred as a result of arbitrary conduct by a government official, or as a result of a deliberate or reckless breach of law done with a view for gain.

Defences

Sexual Harassment at Workplace in India

• Sexual Harassment at workplace has been a recurrent problem for women.

• Sexual Harassment at workplace are of two types-Quid pro quoHostile Environment

• In India, earlier, there had been no specific law for sexual harassment. It was only after the Vishaka and Others Vs State of Rajasthan case, that the tort of Sexual Harassment at work plac emerged in India.

Sexual Harassment at Workplace in India

Vishakha and Others Vs State of Rajasthan , 1997

Phase 1 Phase 2 Phase 3

Justice Verma Committee Report,2013

Sexual Harassment of Women at Workplace Act, 2013

Evolution of Tort Law for Sexual Harassment at Workplace in India

Sexual Harassment at Workplace in India

Vishakha and others Vs State of Rajasthan AIR 1997 SC 3011-

• The Vishakha judgment was the result of a rape case involving a social worker in Rajasthan.

• It laid down the requirements for employers dealing with complaints of sexual assault and stipulated the formation of committees to dispose of complaints from victims of harassment.

• A judgement of this kind by the Supreme Court was unprecedented.

Vishaka Case Guidelines

• Gender equality includes protection from sexual harassment and the right to work with dignity as per our constitution.

• Extra hazard for a working woman compared her male colleague is clear violation of the fundamental rights of ‘Gender Equality’ & Right to Life and Liberty.

• Safe working environment is fundamental right of a working woman.

• In no way should working women be discriminated at the workplace against male employees.

Contd.

• Working with full dignity is the fundamental right of working women.

• The right to work as an inalienable right of all working women.

• The Vishakha judgment had recommended a Complaints Committee at all workplaces, headed by a woman employee, with not less than half of its members being women.

Justice Verma Committee

• Justice Verma Committee was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women.

Justice Verma Committee Report

• Some of the key recommendations made by the Committee on the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013 are provided below: Domestic workers should be included within the purview

of the Bill. Under the Bill the complainant and the respondent are

first required to attempt conciliation. The employer should pay compensation to the woman

who has suffered sexual harassment. The Bill requires the employer to institute an internal

complaints committee to which complaints must be filed.

Sexual Harassment of Women at Workplace Act, 2013

• The Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, 2013 is

a legislative act in India that seeks to protect

women from sexual harassment at their place of

work. It was passed on 23rd April, 2013 and came

into force on 9th December, 2013.

Definition as per SHWW Act, 2013

• The act defines Sexual Harassment as-Any one or more of the following unwelcome acts or behaviour (whether directly or by implication) with the employee namely: (i) physical contact and advances; (ii) a demand or request for sexual favours; (iii) making sexually coloured remarks; (iv) showing pornography; or (v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

Penalties as per SHWW Act, 2013

• Where the employer fails to comply with the provisions of the Act, he shall be liable to be punished with a fine which may extend to Rs. 50,000.

Conclusion

• Though Torts appear to be an effective means for remedying the wrong of Sexual Harassment, but these are not extensively used.

• The judgement of Vishakha vs State of Rajasthan, Justice Verma Committee Report and the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are important in India’s attempt to address the problem of Sexual Harassment at Workplace.

Conclusion• From the rising number of reported complaints of

sexual harassment, it is evident that the new law has at least served to improve awareness about the obligations of employers and rights of employees in case of workplace sexual harassment.

• Unfortunately there has been a failure on the part of the WCD ministry to notify the legislation. Moreover the rules specified under the legislation have not come into effect.

Conclusion

• Though there have been acts providing criminal actions for an act of sexual harassment, but there is a need to develop stringent Tort Laws for providing monetary compensation to the victim.

Literature Review

⦁A. Lakshminath and M.Sridhar, The Law of Torts, Lexis Nexis, Butterworths Wadhwa, Nagpur, 10th Edition, 2010This book aided in providing this research work with a very brief but helpful insight into the history of Sexual Harassment at Workplace in India and the steps taken by the Supreme Court.

• Alastair Mullis and Ken Oliphant, Torts, Palgrave Macmillan, Great Britain, 3rd Eition, 2003 This book helped us to put forth a basic understanding of torts with special reference to the tort of Trespass to Person.

Bibliography

Articles:⦁ B. D. Singh, Issue of Sexual Harassment: A Legal

Perspective, Shree Ram Centre for Industrial Relations and Human Resources, July, 2010

• Krista J. Schoenheider, A Theory of Tort Liability For Sexual Harassment In The Workplace, 1987, University of Pennysylvania

• Alice Montgomery, Sexual Harassment in the Workplace: A Practitioner’s Guide to Tort Actions, August, 2010, Golden Gate University Law Review, Vol. 10, No. 3 (879-928)

Cond.

Books: • Lakshminath and M.Sridhar, The Law of Torts, Lexis Nexis,

Butterworths Wadhwa, Nagpur, 10th Edition, 2010• Alastair Mullis and Ken Oliphant, Torts, Palgrave Macmillan,

Great Britain, 3rd Eition, 2003• Dr. R. K. Bangia, Law of Tort, 22nd Edition, Allahbad Law

Agency, Faridabad, 2010• Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The

Law of Torts, 26th Edition, Lexis Nexis Butterworths Wadhwa, Nagpur, 2010

• Timothy B. Broderick and Katrina Telfer Saleen, A Victim’s Guide to Sexual Harassment, Broderick Law Firm, California

References

Websites:⦁Diane Freeman, ‘Sexual Harassment’, (Health Day)

<http://consumer.healthday.com/encyclopedia/work-and-health-41/occupational-health-news-507/sexual-harassment-646419.html>

⦁Can the victim of a sexual assault file a civil law suit (All Law.Com) <http://www.alllaw.com/articles/nolo/personal-injury/victim-sexual-assault-file-civil-lawsuit.html>

⦁Lahle Wolfe, ‘What is Sexual Harassment?’ (About Money) <http://womeninbusiness.about.com/od/sexual-harassment/f/What-Is-Sexual-Harassment.htm>