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Tort For Sexual Harassment

The word tort is derived from the Latin term tortum which means to twist, and implies conduct which is twisted or tortious.[1] The term is found in Common Law systems for a civil actions harm or wrong, and for the branch dealing with liability for such wrongs. The basic idea that is indicated by definitions is that tort is a civil wrong which is recover by an action for unliquidated damages and which is other than a breach of contract.

The term came to be distinguished from breach of contract only after seventeenth century and this branch of law gained popularity after various technological advances of the Industrial Revolution in England in the nineteenth century because with new inventions accidents also increased. Then a need for developing the Law of Torts was realised. It is still in the process of development according to the conditions of a changing world as its nature is ever evolving.

Tort of Sexual Harassment is a very new concept at the same time a very wide concept. And there is no particular legal theory under which a sexual assault lawsuit can be filed. Anyone who is liable under other provisions of Law of Tort, such as- Trespass to Person: Assault and Battery, False Imprisonment and Intentional Infliction of Emotional Distress.

Sexual Harassment as Tort

a) Definition
Sexual harassment is an uncivilized, unethical, immoral and a fundamental legal wrong which exists universally. CEDAW[2]

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. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.[3]

There is increase in the awareness of this problem because of Women’s Rights Movements, increase of women population at work places, women’s education and adoption of convention on Elimination of All Forms of Discrimination Against Women.

b) Three Essentials for Sexual Harassment
An act of sexual harassment fulfils the three essentials of a tort, which are-
An act or omission- Sexual Harassment is clearly a performance of an act that is not prescribed by law.

Legal damage- In this case, the principle of injuria sine damnum has to be proven, i.e. it has to be proved that though the act of Sexual harassment did not inflict physical injury on the victim, but it infringed the legal right of that individual, which is according to the principle.

Legal Remedy- Compensating the victim is the ultimate aim of Tort Law. So, this essential is also fulfilled by complaint of sexual harassment and if it is proven.

c) Type of Sexual Harassment with Examples

Sexual Harassment can be classified in two forms:

Quid Pro Quo: A person in authority demands or requires sexual acts in exchange for preferential treatment in employment, or to avoid punitive actions.
Example
Sejal is a lawyer who works as a researcher at an NGO in Delhi from 2013. Dr. Mishra is the director of the organization and he is known as big researcher human rights. In an official field when he visit to Shimla for 2 days, Dr. Mishra finds an opportunity to be alone with Sejal and makes a physical advance. After her continuously protests, he forces himself on her by contacting with her in sexually conversation. When she threatens him to make his behaviour public, he threatens to destroy her career.

In this example, it is shown that how Dr. Mishra threatening Sejal with the destruction of her career. Dr. Mishra commits quid pro quo sexual harassment. His physical advances and sexual conversation are unwelcomed for Sejal.

Hostile Work Environment: A person in authority or employer fails to remedy a work environment where sexually inappropriate behaviour, comments, or other actions are occurring, making the workplace intimidating or offensive.

Example
Jayanthi works in a garment factory in Bangalore. Her supervisor tries to touch her. For example, he adjusts her dupatta when she is sewing at her workstation and saidthat he only covering her back. Jayanthi is very uncomfortable with his behaviour. Her colleagues at the workplace ridicule Jayanthi and mock her for the ‘special treatment’ by her supervisor. They o gossip about her and supervisor relation with Jayanthi.

In this example, the physical touching by supervisor is unwelcome and sexual in nature. The gossip, which is based on supervisor behaviour towards Jayanthi at the workplace, is creating a hostile work environment for Jayanthi.

Civil Suit for Sexual Harassment

As Trespass to Person
There is no specific tort law for Sexual Harassment. Sexual Harassment has to be filed under different types of Trespass to Persons, which are recognised as Tort.

Assault

An assault is an attempt or threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act.[4] To proof sexual harassment as Assault we have to prove that:
  1. The actor intended to cause harmful or offensive physical contact.
  2. The victim was put into apprehension by the conduct.
Only verbal abuse cannot be taken as actionable under assault at the time when it creates an apprehension of assault for the victim.
  Battery
A battery is an intentional and direct application of any physical force on another person. It is the actual striking of another person or touching him or her in a rude, angry, revengeful or an insolent manner.[5]To prove liability of person under battery as sexual harassment, the victim only needs to show that the accused touched the victim, even if without doing any harm.

In case of sexual harassment, the victim goes through the apprehension of an unwanted physical touch which is sometimes also considered as actual touch. Then victim can file a suit under assault and battery together.

False Imprisonment:

False imprisonment means a total restraint of the liberty of a person, forshort time without any lawful excuse.

To constitute this wrong, two essentials are necessary:

  1. There must be total restraint of the liberty of a person which may be actual use of physical force or constructive use of authority and power.
  2. The detention must be unlawful.
So, tort suit for Sexual Harassment can also be filed under false imprisonment according to first essential of false imprisonment.

Intentional Infliction of Emotional Distress:

To establish a claim of intentional infliction of emotional distress, a victim must prove that the defendant conduct was outrageous and that the defendant either was intended to cause emotional distress or acted recklessly which shows the probability that the victim would suffer emotional distress. The victim must also prove that she actually suffered emotional distress by his act which reasonably shows that his act is intentionally inflict emotional distress.[6]

So if any person, with a malicious thought, intention and motive, commits assault or battery, or confines another person in a particular area without the consent of other person, for any kind of sexual exploitation, and it inflicts emotion distress to that person, so he can be accused of committing a tort of sexual harassment.

Defences Claim Against Sexual Harassment

There are several defences that can counter a charge of sexual assault. If defendant admitted that he sexually takes advantage of other person and proved that other person also gave the consent for his sexual behaviour or he proved that at the time of sexual harassment he was insane or not in sound mind. Then he shall be free from charges.

Innocence

In a sexual assault case, the most basic defence is a claim of actual innocence. If defendant proved that he could notcommitted the crime because he was in a different location at the time when the crime took place which is known as presenting an alibi then he shall free from his charges.

Consent
If defendant admitted that he sexually takes advantage of other person and proved that other person also gave the consent for his sexual behaviour then he shall free as not guilty.

Insanity or Mental Capacity
Defendants in a sexual assault case can also claim that they had a mental disease or defect at the time of the crime.

Legal Situation in India
The 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. After that the marriage took place, but then the parents of that daughter decided to take revenge. In 1992, she was brutally gang raped by a group of Thakurs infront of her husband, who was also beaten up. The trial court gave a judgement against her, but she did not lose hope.

Then she with her co- workers file a PIL in the Supreme Court of India asking the court to give certain directions regarding the sexual harassment that women suffer at work place. Then the result was the Vishaka judgement. This is a landmark case in the history of judiciary because it was the first authoritative judgement on Sexual Harassment in India.

It was considered 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, 21, 19(1) of the Indian Constitution. Because before this women file case under IPCthat deals with the ‘criminal assault of women to outrage women’s modesty’. And court made certain guidelines and decided that they used until legislation on such issue is not made.

In these guidelines court decided that there must be a disciplinary committee in every company which take action against the sexual harassment act in that company. Then Justice Verma Committee Report came which said instead of the Internal Complaints Committee there is Employment Tribunal must be set up. The Committee recommended because his opinion was that having an internal committee which comprise of members who are employees at the same work place would defeat the entire purpose of having such a committee to check cases of sexual harassment since the employer will be in a position to put some sort of pressure on the members.

Then Parliament passed a law named as Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act,2013. It provides protection against sexual harassment at workplace and for the prevention and redressal of complaints of sexual harassment.

Tort Cases in Uk

In Kerans v. Porter Paint Company[7], court decided that even sexual harassment injury is compensable under workers compensation, such compensation alone may not be sufficient relief for these injuries. According to the court, victims of sexual harassment suffer various other mental injuries that may require remedies beyond the economic compensation provided by workers' compensation.

In Tennessee case[8],Court stated that the injury to personal rights involved in sexual harassment and refused to recognize sexual harassment as a risk inherent in employment.

In Dias v. Sky Chefs[9], Court said that in all cases company liability for acts committed by its employees has been judged under the doctrine of Respondent Superior. But if the court strictly follow this doctrine in a sexual harassment case, the employer can argue that the employee was acting because of some personal motives than business motives.

Suggestions
Sexual Harassment is common problem experienced by women, mostly at Workplace. Most of the Sexual Harassment cases are reported as criminal cases. But Torts appear as an effective means because by this victim claim the remedy but it not give proper satisfaction because damages in torts are given in form of compensation and not for the pain and suffering of the individual.
  1. There are various acts which provide criminal actions for the act of sexual harassment, but there is a need to develop strict Tort Laws which provide monetary compensation to the victim for the economic loss suffered either due to unemployment or being fired or resigning from the earlier workplace or due to inefficiency of work at the same workplace.
     
  2. To proof any wrong act in criminal law it must be proof with beyond reasonable doubt. So if strict tort laws for sexual harassment develop then it is easy for women because she may require less evidence or meet with lower burden of proof. And victims do not have to specify about which part of the defendant body touched which part of the plaintiff body to establish a cause of action. For example in battery- a plaintiff only needs to establish that she was harmed or offended by defendant’s contact and that the defendant intended the contact and possible harm or offence.

End-Notes:
  1. Boulton v. Hardy (1597) Cro. Eliz. 547, 548
  2. Convention on the Elimination of all Forms of Discrimination Against Women is an international treaty adopted in 1979 by the United Nations General Assembly
  3. B.D. Singh, Issue of Sexual Harassment
  4. RatanlalRanchhoddas and Dhirajlal Keshavlal Thakore, The Law of Torts, 26th Edition
  5. RatanlalRanchhoddas and Dhirajlal Keshavlal Thakore, The Law of Torts, 26th Edition
  6. Timothy B. Broderick and Katrina Telfer Saleen, A Victim’s Guide to Sexual Harassment, Broderick Law Firm,
  7. 575 N.E.2d 428 (OH 1991)61 Ohio St.3d 486
  8. 471 U.S. 1 (more) 105 S. Ct. 1694; 85 L. Ed. 2d 1; 1985 U.S. LEXIS 195; 53 U.S.L.W. 4410
  9. Dias v. Sky Chefs, Inc., 948 F.2d 532 (9th Cir. 1991)

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