National Law University Odisha

A project work on: Law of Torts – Sexual Harassment as a Tort

Made under the guidance of:

Submitted by:

S/No. Name of the student Roll No.

1 ARKANEIL BHAUMIK 21

2 RITUPARNA 79

3 SHIVALIKA RUDRABATLA 93

4 YASASCHANDRA VENKATA SAI DEVARAKONDA 118

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 ACKNOWLEDGEMENT

This project was a subject of very extensive research and would not have been
completed without a few things.

We would first like to show gratitude to our subject teacher, Mrs____________

for giving us guidelines for the completion of the project throughout various
consultations.

We would also like to thank the university’s administration for having a library
as good as it is and also for the 24-hour internet service without which this
project would have been incomplete.

We would also like to acknowledge the help and constant support provided by
our seniors who guided us on the right track.

Lastly, we would like to thank the almighty without whose blessings this project
would have been incomplete.

Thank you.

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 DECLARATION

This is to declare that the members of the team of Arkaneil Bhaumik, Rituparna padhy,

Shivalika Rudrabatla and D Venkata Sai Yasaschandra working on the project - “Sexual

Harassment as a Tort” contributed equal amount of work and co operated towards timely

completion of the project.

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 TABLE OF CONTENTS
1. DECLARATION...........................................................................................................3

2. INTRODUCTION..........................................................................................................5

3. RESEARCH METHODOLOGY...................................................................................6

i) SCOPE....................................................................................................................6

ii) LIMITATIONS.......................................................................................................6

iii) RESEARCH PROBLEM........................................................................................6

4. SEXUAL HARASSMENT AND ITS EFFECTS ON WORKING WOMEN..............7

1. Sexual Harassment of women.................................................................................7

2. Classifications of Sexual Harassment at workplace................................................7

3. Effects of Sexual Harassment on working women.................................................8

5. EVOLUTION OF TORT LAW FOR SEXUAL HARASSMENT AT WORKPLACE

IN INDIA.......................................................................................................................9

a) Vishakha and others v. State of rajasthan and others............................................10

b) Recommendations Of Justice Verma Committee Report.....................................13

c) Sexual Harassment of Women at Workplace (protection, prohibition and

Redressal) Act, 2013.............................................................................................14

d) The Sexual Harassment Act..................................................................................14

e) Scope.....................................................................................................................15

f) Grievance Redressal System.................................................................................16

g) Constitution And Working Of Internal Complaints Committee...........................16

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 h) Interim Reliefs.......................................................................................................17

i) Obligation Of Employee.......................................................................................17

j) Penalties In Case Of Non Compliance..................................................................18

k) Inadequacy............................................................................................................18

6. INADEQUACIES OF THE PRESENT TORT LAW SYSTEM................................19

A. Assault and Battery 20

B. Intrusion 21

C. Intentional Infliction of Emotional Distress 23

7. CASE STUDIES..........................................................................................................27

a) Ashok Kumar Singh v. University of Delhi 27

b) Vidya Akahve V. Union of India 28

c) Apparel Export Promotion Council v. A.K. Chopra 29

8. CONCLUSION............................................................................................................30

9. BIBLIOGRAPHY........................................................................................................31

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 INTRODUCTION

Women have been victims of sexual harassment ever since they entered the labour force.
They face such situations in forms big and small, with special focus on workplace, on a daily
basis and are forced to keep quiet about it due to the fear of being penalised and even losing
their jobs. Such traumatising events often fade without even coming to light which grossly
violates the basic rights of women, especially at workplace.

Law and society have an intimate nexus and therefore, it is of utmost importance that the law
is adequate, complete and accessible to victims for seeking remedy and punishing the
wrongdoers who get away with sexual harassment scot-free

The Convention on the Elimination of all Forms of Discrimination against Women

(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.

Tort actions, though not effective, are at least a means for remedying the wrong of sexual
harassment, but they have not been extensively used because of the serious intrinsic flawed
concept of the present tort law system with respect to compensation to the victim. The heavy
burden on civil courts further adds to the negligent remedy these women get. The fact that
there have been very few law suits being initiated despite the seriousness and pervasiveness
of the wrong proves the same.

The fundamental concept of tort law is to bring the plaintiff in the same position as he would
have been but for the tortuous act committed. The present tort law system doesn’t fully put
back the victim in the same position because of the inherent intricacies required to be
separately dealt with. Hence, it becomes necessary to explore the basic principles of tort law

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which recognises sexual harassment as a cause of action in torts and understand the ins and
outs separately.

RESEARCH METHODOLOGY

This project is essentially a doctrinal study. The study of the topic in this project has been
done descriptively and in a methodical manner. The doctrinal method has been espoused to
give the topic a new dimension and a new output within a short period of time by closely
groping and scrutinizing legal doctrine, legal framework and case laws in a logical,
systematic and scientific manner.

SCOPE

This project will make the best possible attempt at illuminating the topic i.e. Sexual
Harassment as a Tort. This project shall establish sexual harassment as a tort and study the
effects of sexual harassment on working women. The project will also make an attempt to
make a study of the Sexual Harassment of Women at Workplace (Prohibition, Protection,
Redressal) act 2013 and understand shed light on the adequacy of the present tort law system.

LIMITATIONS

This project basically focuses on Sexual Harassment as a tort and its effects on working
women. However, this project doesn’t cover the ambit of sexual harassment in places other
than where the victim is an employee.

RESEARCH PROBLEM

To analyse the principles and provisions of the tort of sexual harassment with an in depth
study of harassment at workplace- its effects on employees, liabilities and sanctions on the
tortfeasor and the remedies available for the victim.

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 SEXUAL HARASSMENT AND ITS EFFECTS ON WORKING WOMEN

a) Sexual Harassment of women

¶1. Sexual Harassment is relatively a new concept in India, due to the social stigma and
archaic mentality that is attached to it. Due to this India had been languishing in the dark for a
long time for rampant victim shaming and sexual predators going scot free. This continued
for a long time till it reached saturation on the fateful night of 12th December, 2012. Jyoti
Singh, a young woman was brutally gang raped in a bus which shook the collective
consciousness of the country. A slew of legal changes were implemented quickly and sexual
harassment came into light once again.
¶2. Sexual Harassment is defined as “harassment (typically of a woman) in a workplace,
or other professional or social situation, involving the making of unwanted sexual advances
or obscene remarks.”

b) Classifications of Sexual Harassment at workplace

¶3. Sexual harassment in the workplace is one of the most common form of harassment
that demeans the dignity of women and creates a toxic environment for them. There are
mainly two forms of harassment in the workplace :1
 Quid Pro Quo – It involves the sexual harassment of a woman in return for a
particular favour or the threat of an imminent loss. This is a grey area of torts as the
victim might be forced to give her consent fearing the loss of promotion or getting
fired from her job.2
 Example – In an office a woman is constantly bombarded with sexual innuendoes by
her boss. He touches her whenever he gets a chance. The woman is helpless as her
promotion is coming up and she cannot afford to get into an altercation with her boss.
 Absolute Harassment - This does not involve any direct job benefits or threat. This

1
Employer liability for co-worker sexual harassment under title vii, 13 N.Y.U. Rev. L. & Soc. Change 83, 85
(1984-85)
2
Meritor Sav. Bank v. Vinson, 106 s. Ct. 2399, 2404-05 (1986)

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 harassment is directly aimed at the woman without any fear. Tort Law jurisprudence
has been successful in tackling Absolute Harassment to a certain extent as there is a
direct attack on the woman’s personal life and liberty.
¶4.
 Example- A woman is constantly touched physically by one of her colleagues at
work. She has rebuked him on numerous occasions but he continues to do it inspite of
her repeated warnings.

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EVOLUTION OF TORT LAW FOR SEXUAL HARASSMENT AT WORKPLACE IN
INDIA ¶5.
Sexual harassment in India has, over the last few decades, increased in magnitude and has
become an issue of utmost concern. Despite an ever increasing number of cases, especially of
sexual harassment at workplace, both reported and unreported, not much has been done by
the legislature in this regard to implement laws to curb the same.
¶6. Sexual harassment at the workplace in India has its own history. It is a social practice
and studying a social practice from a historical perspective helps us read into, understand and
thereby answer very fundamental questions about the practice, how it has been contested and
changed, and how the law has changed over time and shaped the society today.
¶7. The milestone in the history of the law dealing with sexual harassment at the
workplace came with the case Vishaka and others v. State of Rajasthan and Others.3 It led to
the enforcement of the well-known Vishaka Guidelines to curb sexual harassment at the
workplace for the safety of women keeping in mind fundamental rights of working women as
provided under Articles 14, 19 and 21 of the Constitution of India. This was followed by the
recommendations of Justice Verma Committee report of 2013. These recommendations were
made to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 that was pending in Parliament and finally, the bill was passed on 22nd
April 2013.

EVOLUTION OF TORT LAW FOR

SEXUAL HARASSMENT AT THE
WORKPLACE IN INDIA

VISHAKHA AND RECOMMENDATIONS SEXUAL HARASSMENT OF

WOMEN AT WORKPLACE
OTHERS V. STATE OF OF JUSTICE VERMA
(PREVENTION,
RAJASTHAN, 1997 COMMITTEE
PROHIBITION AND
REPORT, 2013 REDRESSAL) ACT, 2013

VISHAKA AND OTHERS V. STATE OF RAJASTHAN AND OTHERS

3
(1997) 6 SCC 241

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¶8. This case was brought against a brutal case of gang rape of a woman who was a social
worker from a small village in Rajasthan. This case brought to light the urgency for an
alternative mechanism to prevent such instances and to provide victims with a better legal
recourse. This case focused on the violation of fundamental rights of women under articles
14, 19 and 21.
¶9. Violation of these attracted Article 32 of the Constitution. These articles were
attracted due to the requirement of ‘gender equality’, the fundamental right to carry on any
occupation, trade or business and the right to a safe working environment and the right to
protect one’s life and property. The right to life means life with dignity.
¶10. The Supreme Court in this case recognized the necessity to provide women with a
safe and healthy working environment. In this case, the court also defined sexual harassment
and recognized it as a paramount violation of human rights.4
¶11. The unprecedented Vishaka Guidelines were implemented post this case to introduce
a new mechanism. Under this, requirements were laid down to bind employers on how to
deal with sexual assault right from registering of complaints to their disposal and an attempt
was made to make the process expeditious.

FACTS-

¶12. The background of this case dates back to 1992 when the victim, Ms. Bhanwari Devi
was brutally gang raped by men belonging to a higher caste than hers because she tried to
stop a child marriage in her family. She belonged to the caste kumhar, who were potters. She
was a social worker from a small village in Rajasthan.
¶13. Post the brutal gang rape, she, determined to get justice, lodged a case against the
offenders. This attempt failed as the offenders were acquitted and left scot-free. She fought
for justice and inspired several other women to collectively file a petition in the Honourable
Supreme Court of India through the platform called Vishaka.

JUDGMENT-

¶14. It was held that “each such incident results in violation of the fundamental rights of
gender equality and the right to life and liberty. It is a clear violation of Articles 14, 15, 19(1)
4
Protection of Human Rights Act 1993, s. 2(d)

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(g) and 21 of the Indian Constitution .” Holding international conventions of utmost
importance in cases where the prevailing laws are scarce, the court threw light upon some
important conventions which elaborated further on the importance of curbing sexual
harassment at the workplace. “State parties shall take all appropriate measures to eliminate
discrimination against women in the field of employment in order to ensure, on a basis of
equality of men and women, the same rights in particular:
(a) The right to work as an inalienable right of all human beings;
(f) The right to protection of health and to safety in working conditions, including the
safeguarding the function of reproduction.”5

¶15. The Judgment talks about the ambit of sexual harassment at workplace and states that
it includes “such unwelcome sexually determined behavior as physical contacts and
advances, sexually-coloured remarks, showing pornography and sexual demands, whether by
words or actions.”6
¶16. The government of India, at the Fourth World Conference on Women in Beijing,
committed to formulating a national policy for the protection of the rights of women which
would guide every level and sector in the same regard. It also talks about a Commission for
Women’s Rights for monitoring various cases and the scenario from the broader national
view.

THE VISHAKA GUIDELINES-

¶17. Keeping in view the above .judgment, the Vishaka Guidelines were implemented. It
addresses a wide ambit of issues-
1. It imposes a duty on the employer to ensure that there is a safe and healthy working
environment along with an easy, transparent and expeditious method of redressal for
victims.
2. It mandates preventive measures for the same-
“Without prejudice to the generality of this obligation, they should take the following
steps-
(a) Express prohibition of sexual harassment as defined above at the work place

5
Convention on the Elimination of All Forms of Discrimination against Women, Article 11
http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm Accessed on 30.08.17
6
Vishaka and others v. State of Rajasthan and Others, (1997) 6 SCC 241

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 should be notified, published and circulated in appropriate ways.
(b) The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual harassment
and provide for appropriate penalties in such rules against the offender.
(c) As regards private employers, steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment (Standing
Orders) Act, 1946.
(d) Appropriate work conditions should be provided in respect of work, leisure, health
and hygiene to further ensure that there is no hostile environment towards women at
work places and no employee woman should have reasonable grounds to believe that
she is disadvantaged in connection with her employment.”7
3. It provides for a dedicated complaints mechanism with time-bound disposal of cases.
It also necessitates a complaints committee under which-
a) A special counselor and other support service with assurance of confidentiality.
b) The committee should be headed by a woman and not less than half of its member
should be women.
c) An NGO or other neutral body familiar with the issue of sexual harassment must
be involved in dealing with the case to avoid external pressure.
d) The committee must make an annual report for submission to the Government of
the cases it has dealt with.
4. It allows workers to freely discuss issues on sexual harassment at the workplace so
that victims have a platform to express the same. Employer-employee meetings must
mandatorily keep themselves open to such discussions.
5. Awareness of the rights of female employees in their workplace must be spread and
the way to seek redressal must be constantly notified.
6. It allows seeking remedy by filing a criminal case under sections 294, 354 or 509 of
the Indian Penal Code or going for a civil suit for compensation.
A civil suit can be filed for damages under tort laws. That is, the basis for filing the
case could be-
a) mental anguish
b) physical harassment
7
Vishaka and others v. State of Rajasthan and others, (1997) 6 SCC 241

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 c) loss of income and employment caused by the sexual harassment.

RECOMMENDATIONS OF JUSTICE VERMA COMMITTEE REPORT

¶18. The Justice Verma Committee was constituted to recommend amendments to

Criminal Law to ensure faster trials and more stringent punishment for the offenders. Apart
from this, the committee also made some important recommendations to the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2013.
¶19. Some of the key recommendations made by the Committee on the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Bill, 2012 that is pending in
Parliament 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.  This is contrary to the Supreme Court judgment in Vishakha vs. State of
Rajasthan which aimed to secure a safe workplace to women. 
 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.  Such an internal committee defeats the purpose of the Bill
and instead, there should be an Employment Tribunal to receive and adjudicate alL
complaints.8

SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PROTECTION,

PROHIBITION AND REDRESSAL) ACT, 2013 ¶20.
The year 2013 may be remembered as a landmark year for women fighting for their rights
and safe working environment. The country witnessed introduction of two prominent
legislations pertaining to sexual harassment. The first legislation was the Sexual Harassment
of Women at workplace (prevention, prohibition and redressal) Act, 2013 and the other was

8
“Justice Verma Committee Report Summary”
<http://www.prsindia.org/parliamenttrack/report-summaries/justice-verma-committee-report-summary-2628/>
Accessed on 30.08.17

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the criminal law amendment act 2013. These legislations were in response to the rising
number of serious incidents of sexual harassment.

THE SEXUAL HARASSMENT ACT

¶21. The act, 16 years after the supreme court laid down Vishaka guidelines, was
introduced with an objective of providing women with, in general redressal in case of sexual
harassment committed against her and in particular, to prevent the growing number of such
incidents. Sexual Harassment was recognised as violation of a women’s fundamental right
under article 14 and 15 of the constitution and violation of her right to life with dignity under
article 21. Sexual harassment under the act was also identified as a threat to the right under
article 19 (1) (g) as it includes a right to work in a safe environment which essentially can be
comprehended as right to a safe environment free from harassment.
¶22. The Sexual Harassment of Women at workplace (prevention, prohibition and
redressal) Act, 2013 defines sexual harassment under the same line as was decided by the full
bench headed by JS Verma as any unwelcome sexually determined acts or behaviour
(whether directly or by implication) such as physical contact or advances, demand or request
for sexual favours, sexually coloured remarks or showing pornography or any other
unwelcomed physical or verbal conduct of sexual nature. 9 Section 3 of the act says that the
sexual harassment act stipulates that no women shall be subjected to sexual harassment at any
workplace. The presence or occurrence of circumstances of implied or explicit promise of
specific treatment in employment, threat of detrimental treatment in employment, threat
about present or future employment, interference with work or creating an intimidating or
offensive or hostile work environment.

SCOPE

¶23. The act is not gender neutral as it provides protection only to women employees.
According to the act, an aggrieved women in relation to a workplace; is a women of any age,
whether employed or not, who alleges to have been subjected to any act of sexual

9
Vishaka V. State of Rajasthan & ors (1997) 6 SCC 241.

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harassment10. The ambit of sexual harassment is very wide and includes any department,
organisation, undertaking, establishment, enterprise, institution, office, branch or unit which
is established, owned, controlled or wholly or substantially financed by funds provided
directly or indirectly by the appropriate Government or the local authority or a Government
company or a corporation or a co-operative society; any private sector organisation or a
private venture, undertaking, enterprise, institution, establishment, society, trust, non-
governmental organisation, unit or service provider carrying on commercial, professional,
vocational, educational, entertain-mental, industrial, health services or financial activities
including production, supply, sale, distribution or service; hospitals or nursing homes; any
sports institute, stadium, sports complex or competition or games venue, whether residential
or not used for training, sports or other activities relating thereto;  any place visited by the
employee arising out of or during the course of employment including transportation
provided by the employer for undertaking such journey;  a dwelling place or a house.11
¶24. The definition of ‘employee’ under the sexual harassment act is fairly wide and
includes any person employed at a workplace for any work on regular, temporary, ad hoc or
daily wage basis, either directly or through an agent, including a contractor, with or, without
the knowledge of the principal employer, whether for remuneration or not, or working on a
voluntary basis or otherwise, whether the terms of employment are express or implied and
includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any
other such name. 12

GRIEVANCE REDRESSAL SYSTEM

¶25. The sexual harassment act requires an employer to set up an ‘internal complaint
committee at each office or branch of an organisation employing at least 10 employees to
10
Section 2 (a) of the Sexual Harassment of Women at workplace (prevention, prohibition and redressal) Act,
2013
11
Section 2 (o) of the Sexual Harassment of Women at workplace (prevention, prohibition and redressal) Act,
2013
12
Section 2 (f) of the Sexual Harassment of Women at workplace (prevention, prohibition and redressal) Act,
2013

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hear and address grievances pertaining to sexual harassment. In those offices operating with
less than 10 employees the local government at the district level is required to set up a local
complaints committee to investigate the matters relating to sexual harassment

CONSTITUTION AND WORKING OF INTERNAL COMPLAINTS COMMITTEE

¶26. The Act mandates the establishment of Internal Complaints Committee at all branches
or offices of organizations where at least ten or more employees are employed.

The constitution of the Committee is as follows:

1. It should be headed by a women employed at a senior level.

2. Half of the members should be women.

3. It should include a third party NGO/other body.

4. Two persons amongst employees committed to the cause of women/experience in

social work/legal knowledge should form part of the Committee.

The maximum period for which any member can occupy a position in the Committee is three
years.13

INTERIM RELIEFS

¶27. During the pendency of an inquiry, on a written request made by the aggrieved
woman, the Internal Committee or the Local Committee, as the case may be, may
recommend to the employer to—
a.     transfer the aggrieved woman or the respondent to any other workplace; or
b.    grant leave to the aggrieved woman up to a period of three months; or
c.     grant such other relief to the aggrieved woman as may be prescribed.14

OBLIGATION OF EMPLOYEE
13
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

14
Section 12(1) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013

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¶28. The employer's obligations under the Act are as follows:

a)      Providing a safe working environment at the workplace;

b)      Displaying at the workplace, details of - the penal consequences of indulging in acts of
sexual harassment, composition of the Internal Complaints Committee and the availability of
the grievance redressal mechanism for aggrieved employees;

c)      Providing necessary facilities to Internal Complaints Committee for presiding over
enquiry and dealing with complaints;

d)      Taking disciplinary action when an allegation of sexual harassment has been proved;

e)      Encouraging employees to raise any issue of sexual harassment;

f)        When an outside party is alleged to have subjected employee to sexual harassment,
helping the employee to initiate action against such person; and

g)      Carrying out employee awareness programs.15

PENALTIES IN CASE OF NON COMPLIANCE

¶29. The Act has imposed a penalty of fifty thousand rupees for:

(a) Non-establishment of internal committee by the organization.

(b) Not submitting the annual report by the Internal Committee.

(c) Not submitting the inquiry report by the Internal Committee.

(d) Not taking action against false complaint/evidence.

The Act also provides that if an employer is convicted again for same offence then he may be
punished with twice the punishment as prescribed under the Act. Moreover his licence may
be cancelled or the registration required by him for performing his business or activity may
be withdrawn or not renewed.16

15
Section 19 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013

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INADEQUACY

¶30. The law which was a much awaited development in ensuring women a safe and
healthy work environment is viewed as a hasty decision taken by the legislation leaving many
loopholes in the system increasing the susceptibility to abuse. The Act is not gender neutral,
if the male employees are subjected to sexual harassment, one cannot claim protection or
relief under the law. The statute also does not provide protection against retaliation and
victimisation which is a common consequence of complaining against sexual harassment.
The time bound trial may not be practically possible in all cases for the witnesses may not be
able to readily co-operate.
¶31. The penalty against false and frivolous complaints may actually deter a few women
from reporting incidents fearing that they cannot prove the employer is wrong, which may
defeat the primary purpose for which the law is enacted. It may be too premature to decide if
the present law is effective or not, for to test its effectiveness we have a long road ahead.

INADEQUACIES OF THE PRESENT TORT LAW SYSTEM

¶32. Tort law may provide a more complete and inclusive recovery when the harm meted
out to by sexual harassment necessitates relief beyond what the act is capable of. Damages as
compensation for pain and suffering are traditionally awarded for "virtually any form of
conscious suffering, both mental and physical." Relief as compensatory damages for the
invasion of a dignitary interest is also available under rubrics such as assault, battery, and
outrage; these theories recognize the wrong as damage in and of itself.17
¶33. Special damages may also be recovered for loss of time, reputation, and emotional
peace. In addition, tort law could provide a stronger and more effective deterrent in the form
of punitive or exemplary damages. Such an award usually is based on the defendant's
"culpable state of mind," so that proof of malicious conduct would justify imposing punitive
damages on the employer. Some courts, however, have also awarded punitive damages when

16
Section 26 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013
17
Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

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the actor has clearly abused a position of power, even if no guilty motive or intention can be
shown.
¶34. As a supplement to the act, a tortuous theory of recovery would offer a form of relief
of compensatory damages directly applicable to the personal impact of sexual harassment.18
Despite the need of the hour being relief for sexual harassment, the traditional and outdated
theories of recovery in tort are ill-suited to the personal harm that results from workplace
harassment. It may even cause more complications and do more than harm than good.
¶35. A fundamental reason for this inadequacy is that it is only in recent years has
harassment been recognized as a legally actionable wrong. As the status quo exists, tort law
cannot provide a precedent for a legal approach to sexual harassment in modern society
because traditional and orthodox theories simply do not conform conceptually "to the social
reality of men's sexual treatment of women. . . .Although the facts of discrimination on the
basis of sex have a long history in women's suffering, the prohibition on sex discrimination as
such lacks a common-law history." 19As a consequence, traditional and conservative tort
theories continue to produce unsatisfying and aggrieving results when courts attempt to find
grounds on which to grant relief for sexual harassment as a tort.
¶36. Although some ideologies have enabled victims to recover for their injuries, doctrinal
restrictions and conservatism have severely limited the possibility of finding a basis for
liability of sexual harassment as a tort. A survey of commonly used theories demonstrates the
lacunae of each, especially in the absence of a termination of employment or the lack of
infliction of physical harm.

C) ASSAULT AND BATTERY

¶37. Liability for assault requires substantially showing that

(1) The actor intended to cause harmful or offensive physical contact; a motive to cause hurt
must be present, and

18
Shaffer v. National Can Corp., 565 F. Supp. 909 (E.D. Pa. 1983) (recognizing that a tort claim was necessary
to supplement the state antidiscrimination statute, which generally provided an exclusive remedy when
invoked). Injunctions, reinstatement, and backpay further the government's interest in "eradicating targeted
forms of discrimination."
19
C. Mackinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination 28 (1979).

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(2) The victim was put in apprehension of such conduct.20
¶38. This theory is intended to protect an individual's right to be free from "apprehension
of harmful or offensive contact”, as this concept claims that any act that creates such
apprehension of harm is a tortious assault, even in the absence of physical contact.21
“Generally, verbal abuse is not actionable unless some other conduct or certain circumstances
can be shown to have caused "reasonable apprehension" of imminent offensive contact.22
Battery consists of a harmful contact that is caused offensively.
¶39. However, liability requires a showing of intent to touch, but not necessarily to harm.
Thus, regardless of the actor's specific purpose or intention, battery may involve offensive,
insulting, or physically harmful contact. Since apprehension of unwanted physical contact
often accompanies the actual touching, a plaintiff may frequently end up bringing an action
under claims of both assault and battery.
¶40. In the context of sexual harassment as a tort, these two theories of assault and battery
are useful as long as the victim has either experienced or expected offensive or harmful
physical contact. For example, in the case of Skousen v. Nidy, a sixty five year old caretaker
living in a trailer park prevailed in a suit against her employer for assault and battery. The
park owner had repeatedly attempted to seduce the woman by touching her in a sexually
suggestive manner and, on several occasions, violently assaulting her. “Having recognized
the need to provide relief for both the mental and physical consequences of the employer's
harmful and offensive conduct, the Arizona Supreme Court upheld an award of suitable
compensatory and punitive damages as per the circumstances the case brought to light.
¶41. Unless the harassment involves at least a threat of imminent physical touching,
however, the theories of assault and battery cannot provide a basis for liability of sexual
harassment as a tort. Consequently, these doctrines are useless when the alleged harassment
consists, for example, of a daily barrage of sexual insults and innuendos, notwithstanding the
fact that the worker suffers severe mental anguish and agony.
¶42. Furthermore, no liability exists on these grounds even if the employee is threatened
with the termination of his employment. In cases where a hostile work environment or a

20
Rogers v. Loews L'Enfant Plaza Hotel, 526 F. Supp. 523, 529 (D.D.C. 1981) (sexual harassment case defining
assault and battery).
21
W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 10 (4th ed. 1971)
22
Johnson v. G.M. Acceptance Corp., 228 F.2d 104 (5th Cir. 1955) (per curiam) (abusive and insulting language
not actionable).

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demand for sexual favours lacks an explicit physical threat, a different and more inclusive
theory of recovery is necessary.

D) INTRUSION

¶43. Under the Restatement (Second) of Torts, the tort of intrusion is defined as an
encroachment, "physically or otherwise, upon the solitude or seclusion of another or his
private affairs or concerns . . . if the intrusion would be highly offensive to a reasonable
person." Despite the broad language of the Restatement, some courts narrowly define
intrusion in purely physical terms, similar to trespass. Thus construed, recognition of the tort
is "directed to protecting the integrity and sanctity of physical areas a person would naturally
consider private and off- limits to uninvited, unwelcomed, and prying persons."
¶44. In the case of Cummings v. Walsh Construction Co., the trial court dismissed an
intrusion claim in which a female worker employed by the construction company alleged that
a plant foreman had intimidated her into engaging in sexual relations with him. Under
Georgia law, liability for intrusion required the proof that the defendant's conduct was"
unwanted, uninvited, and unwarranted.' Since Walsh did not physically resist her supervisor's
advances, the court determined that she was willing to have sexual intercourse with him: "It
is plain that plaintiff had other courses of action but that she did not avail herself of them. . . .
[She] had the alternative of outright refusing to engage in sexual acts with the defendant. She
did not choose that path, and in doing so, she waived whatever right she had as to her
personal seclusion or solitude." The court did not consider the possibility that Walsh may
have been economically coerced into having sex with her supervisor. Apparently the implicit
threat of termination of employment, which unquestionably accompanied the foreman's
demands, did not suggest that the "sexual encounter" was genuinely "unwanted, uninvited
and unwarranted.”
¶45. In contrast to the narrow approach in Cummings, other courts have expanded the
scope of intrusion to compensate harassment victims even when non explicit physical
violation has occurred. In the case of Rogers v. Loews L'Enfant Plaza Hotel, an assistant
manager at a hotel restaurant claimed that her supervisor had committed intrusion to her
personal space by frequently telephoning her at home in an attempt to make sexual advances
and to comment about the details of her personal life. The court refused to dismiss the

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plaintiffs claim because of her additional allegations of discrimination and other tortuous
behaviour by her supervisor: "[I]n this particular situation, with allegations of sexual
harassment encroaching into her personal, as well as professional life, . . . the pleadings are
sufficient to indicate an intrusion into a sphere from which plaintiff Rogers could reasonably
expect that [her supervisor] should be excluded.
¶46. Two years later, the Alabama Supreme Court extended the definition of intrusion to
include an employer's invasion of an employee's right to psychological and not merely
physical solitude.
¶47. In the case of Phillips v. Smalley Maintenance Services, the court found that the
employer's continual interrogations about his employee's sex life and his frequent demands
for sex had caused the woman to suffer from chronic anxiety, to contemplate suicide, and to
seek counselling and require medication. Noting that "[o]ne's emotional sanctum is certainly
deserving of the same expectations of privacy as one's physical environment”, the court
upheld an award of compensatory damages for the woman's medical expenses, as well as
compensatory relief for her mental anguish. The Rogers and Phillips decisions clearly
demonstrate the flexibility with which one may interpret the scope of intrusive invasion of
privacy.
¶48. In view of the clear need to provide compensation for the victim's pecuniary and
emotional harm, the two courts deliberately extended the scope of intrusion beyond its
traditional and conservative limits in order to find the employers liable for sexual harassment.
Whether these cases will establish a new precedent in the interpretation of tort law remains
unclear. Furthermore, even if other jurisdictions broaden the scope of intrusion of one’s
privacy, the extent to which courts will relax the traditional requirements is unpredictable.
¶49. Finally, some forms of harassment, such as severe intimidation and deliberate
humiliation, could never fall within the rubric of invasion of privacy if they occur only within
the aggrieved party’s workplace and are limited to topics about which, and circumstances
where the individual has no expectation of privacy. Although the Rogers and Phillips
decisions may heighten the chances of recovery for some plaintiffs, they simply do not
establish a reliable precedent for all victims of workplace harassment.

E) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

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¶50. Of all the theories of recovery available to a victim of harassment, the tort of outrage -
the intentional infliction of emotional distress and anguish - may be by far the most
successful ground on which to one could hope to get compensatory damages for the mental
harm caused by sexual harassment. The (Second) Restatement of Torts defines the tort of
outrage as follows: "One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional distress,
and if bodily harm to the other results from it, for such bodily harm.”
¶51. For a victim of workplace harassment, this theory of liability provides a particularly
strong basis for recovering monetary damages. The fact that the tort is defined in terms of the
actor's conduct virtually ensures an award of punitive damages, which serves as a vital and
effective deterrent and provides more complete compensation for the victim. In addition,
under the notion of "parasitic damages”, an employer becomes liable for all the consequences
of his behaviour and attitude; thus, a successful claim under this theory may allow a plaintiff
to monetarily recover for all the direct and indirect effects of sexual harassment.
¶52. However, the absence of a clear definition of outrageous conduct poses the greatest
obstacle to compensatory recovery under this theory. In contrast to the definitions of other
intentional and dignitary harms such as assault, battery, libel, and false imprisonment, the
term "outrage" does not refer to a specific type of behavior. Unfortunately, The Restatement
and its comments offer an extremely vague standard for judicial evaluation of harassment
claims. Consequently, liability has been found only where the defendant’s conduct has been
extraordinarily outrageous in character, and as extreme in degree as to go beyond all possible
bounds of civility and decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.
¶53. Generally, the case is one in which the recitation of the facts to an average member of
the community would arouse his resentment against the actor, and lead him to exclaim,
“Outrageous!" As a flagrant violation of public policy, sexual harassment should be
recognized as outrageous per se. The Restatement explains that "[t]he extreme and
outrageous character of the conduct may arise from an abuse by the actor of a position, or a
relation with the other, which gives him actual or apparent authority over the other, or power
to affect his interests." In fact, sexual harassment gives rise to a system of economic coercion
in the employment and workplace context. As we observe today, federal anti-discrimination
law demonstrates the government intolerance for this infringement on civil rights.

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¶54. Thus, the severe misuse of power inherent in sexual harassment justifies a finding of
shocking outrageousness. The threat of economic coercion in sexual harassment, viewed as a
consequence of the inequalities inherent in the employer-employee relationship, has in fact
led several courts to sustain sexual harassment claims under the tort of outrage. 23 In these
cases in relation the tort of outrage, the gross abuse of power, that is unique to sexual
harassment, distinguishes a plaintiff's allegations from other probable situations of oppression
in the workplace.
¶55. For example, the previously stated Cummings court determined that an employee-at-
will could bring a claim of outrageous conduct even if she was barred from alleging wrongful
discharge, because an employer may never act beyond the scope of authority: "[I]t may have
been within the power of the defendant to fire the plaintiff regardless of the reason, but the
defendant does not have the authority to intentionally injure /harm her emotionally."
¶56. In the case of Howard University v. Best," a female professor, whose contract had not
been renewed, alleged that a male dean's sexual advances and the deliberate creation of a
hostile work environment on his part had not only resulted in her termination of employment,
but had also caused her to develop hypertension and to require urgent counselling."
¶57. The District of Columbia Court of Appeals, upholding the plaintiff's claim of tortious
liability, focused in particular on the close relationship between outrageous conduct and the
violation of public policy. Recognizing that women suffer sexual harassment in the
workplace, and based on outmoded and grossly warped sexual stereotypes and male
domination of the subordinate female employees, we reject the view, as articulated by the
trial court, that, as a matter of law, the degrading and humiliating behaviour herein detailed
was at worse a "social impropriety”, which did not amount to the intentional infliction of
emotional distress.
¶58. As these cases suggest, sexual harassment in the workplace should be regarded as
outrageous because such behaviour is undoubtedly an unacceptable abuse of power. In
practice, however, most courts decide on a case-to-case basis as to what constitutes extreme
and outrageous conduct.

23
Shaffer v. National Can Corp., 565 F. Supp. 909 (E.D. Pa. 1983) (employer's creation of an oppressive
workplace atmosphere caused severe emotional distress); Vegh v. General Elec. Co., 34 Fair Empl. Prac. Cas.
(BNA) 135 (E.D. Pa. 1983) (allegations of unwanted sexual advances, verbal and physical conduct sufficient to
establish claim for relief);

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¶59. Consequently, recovery under the theory of intentional infliction of emotional
distress depends on a jurisdiction's standards, rather than on the recognition of the inherently
coercive nature of the sexually offensive conduct. Recent decisions reveal courts’
inconsistent attitudes regarding the severity of sexual harassment as a tortious liability. As
discussed above, some claims of outrage have survived preliminary motions."
¶60. In other jurisdictions, however, similar claims have been either withdrawn or
dismissed as a matter of law.”24 In the case of Hooten v. Pennsylvania College of Optometry,
for example, the plaintiff claimed that her coworkers constantly made disparaging remarks to
her about her marital status and her new role as a mother. They deliberately overloaded her
work schedule, forcing her to commit errors and suffer gross professional embarrassment.
When she collapsed one day at work, no supervisor cared to come to her aid; regrettably, she
was ultimately discharged from her position. The court decided that, as a matter of law, no
jury could construe such conduct to be outrageous. The court stated that to survive a motion
for dismissal, a claim against sexual harassment required substantiated allegations of: (1)
direct sexual advances, (2) threats of retribution, (3) physical contact without the plaintiff’s
consent, or (4) sexual references about the employee to other workers." In an apparent
disregard for the coercive nature of the coworkers' conduct and employer's implicit consent,
the court stated: “while in no way do we wish to mitigate any of the pain and humiliation
plaintiff may have suffered, the court does not believe that the alleged conduct . . . [rose] to
the level that was so outrageous that it went beyond all bounds of decency. . . . While creating
an environment which is oppressive to function within is likely to cause distress, it is not the
type of action to arouse resentment by the average member of the community, against the
actor.”
¶61. Thus, the possibility of recovery under this rubric remains vague and uncertain. As
one writer observed: "[T]he vitality of this cause of action depends almost entirely on the
judicial sensitivity to the true nature of sexual harassment. 25 Unless the courts fully
comprehend the powerful element of coercion in the context of being in a workplace, it is
doubtful that the tort of outrage will provide a reliable basis for relief for sexual harassment.

24
Guyette v. Stauffer Chem. Co., 518 F. Supp. 521 (D.N.J. 1981) (claim withdrawn before final judgment);
Hooten v. Pennsylvania College of Optometry, 601 F. Supp. 1151 (E.D. Pa. 1984) (claim dismissed by court).

25
Legal Remedies for Employment-Related Sexual Harassment, 64 MINN. L. REV. 151, 172 (1979)

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Another possible reason for the judicial reluctance to extend the intentional infliction of
emotional distress and agony beyond its narrow confines may be the concern that a broad
definition would give rise to circumstances likely to create a “flood of litigation.”26
¶62. It may so happen that the courts may agree that sexual harassment is indeed
outrageous and is a gross violation of one’s privacy, but they fear that allowing a variety of
different kinds of behaviour to be actionable would clog the dockets of justice and create the
complications for the plaintiff, and may obstruct the judiciary from delivering justice in time.
Therefore, as per the status quo, though sexual harassment as a tort may not fall within the
specific rubric of outrage, courts all around the world may be willing to recognize an
independent cause of action for such sexually offensive conduct. The current tort law thus
fails to address the severe personal harm inflicted upon the victims of sexual harassment. No
single rubric as such provides adequate relief. Even if a worker brought multiple claims
against her employer, such a lawsuit would not possibly guarantee complete recovery.
¶63. The main difficulty with tort law is finding liability at all, under any theory. Although
a combination of claims may maximize the kinds of remedies available to a plaintiff, and may
even be satisfactorily compensatory, it will ultimately prove to be useless if the employer
cannot be held liable in the first place. In its present form, therefore, tort law does not provide
a satisfactory basis for relief of compensatory damages for sexual harassment.

CASE STUDIES

a) Ashok Kumar Singh v. University of

Delhi
Facts

¶64. The petitioner, Ashok Kumar Singh challenged the grounds on which a report by
Internal Complaint Committee of Dayal Singh Evening College on account of complaints
against him. First is that the report only gives a prima facie conclusion of the complaints
having substance without the report actually giving a definite conclusion and holding the
charges against the petitioner to be proved, and which aspects are very much required under

26
Legal Remedies for Employment-Related Sexual Harassment, 64 MINN. L. REV. 151, 172 (1979)

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 Section 13(3) of the Act. The second count is he was not allowed to lead evidence in support
of his defence.

Held

¶65. The Delhi High Court held that the Internal Complaints Committee (ICC) constituted
under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, must give a definite conclusion regarding the guilt of the person
involved in the incident.

The bench after considering the reports reached the following findings:

1. ICC holds ‘prima facie’ i.e., the conclusions, which have been arrived at, are not final
but only prima facie conclusions.
2. There is no final conclusion of guilt being found of the petitioner for his being
indicted as such, inasmuch as, the expression used is ‘has some substance’ i.e., there is no
definitive and final conclusion of guilt of the petitioner.
¶66. The court observed that Section 13(1) of the Act uses the expression ‘findings’ and
thereafter sub-section (3) of the Act uses the expressions ‘conclusion’ and ‘has been proved’.
According to Justice Mehta, all the three reports fall foul of the requirements of sub- section
(3) of Section 13 of the Act because there is no definitive conclusion of petitioner being held
guilty and also that there is no finding that the charges against the petitioner have been
proved and hence the report maybe set aside.

b) Vidya Akahve V. Union of India

Facts

¶67. The petitioner was employed with an Indian government owned development bank.
She had filed a complaint of sexual harassment against the General Manager, who was her
immediate superior officer. However, no action was taken by the employer. Thereafter, the
employee filed another complaint seeking establishment of an ICC as was necessary to be set
up, as per the law laid down by the Supreme Court of India in the case of Vishakha v. State of

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Rajasthan. Since for the incidents that took place before February/March 2012, the limitation
period of three months prescribed under the Sexual Harassment Act had expired and thus,
was not taken into account by the ICC. However, the Human Resource department could take
separate action based on those instances, which would be beyond the scope of the Sexual
Harassment Act. Based on the ICC’s report, the Disciplinary Authority passed an order, by
which the Supervisor was (a) demoted to a lower rank by two ranks; (b) transferred to another
city and (c) received a pay cut as per his lower rank.
¶68. The Court held that unless the Order is shockingly disproportionate to the act of the
delinquent employee, it will be circumspect in interfering with the Order. Interference is
warranted only when there is non–compliance of the principles of administrative law,
Wednesbury Principles and doctrine of proportionality by the Disciplinary Authority. As for
compliance with the Wednesbury Principles, interference was held to be not permissible
unless any of the following conditions were satisfied: (a) the Order was contrary to law, (b)
relevant factors were not considered, (c) irrelevant factors were considered and (d) no
reasonable person would have taken such a decision.
¶69. Under the principle of proportionality, the Court stated that it would have to be seen
whether the legislature and administrative authority maintained a proper balance between the
adverse effects which the legislation or order may have on the rights, liberties or interests of
persons, keeping in mind the purpose which they were intended to serve.
¶70. The Court also observed that the inquiry by the Disciplinary Authority was conducted
dispassionately and all evidences were appropriately considered and ruled upon in a fair and
proper manner. Therefore, the Court was not entitled to give a second opinion merely because
it had the discretion to do so.

c) Apparel Export Promotion Council v. A.K. Chopra

FACTS

¶71. The respondent after an inquiry was found guilty of sexually harassing a female
employee. Consequently, his service was terminated (In a writ petition filed in the High
Court, his punishment was reduced by the court. The Supreme Court took exception to the

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High Court’s interference with the award of the punishment in the instant case with the
following observation:

HELD

¶72. "Even in so far imposition of penalty is concerned, unless the punishment or penalty
imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible
or such that it shocks the conscience of the High Court, it should not normally substitute its
own opinion and impose some other punishment or penalty".
¶73. Accordingly in the instant case, the Supreme Court set aside the order of the High
Court and restored the punishment of removal from service of the respondent imposed by the
disciplinary authority.

CONCLUSION

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BIBLIOGRAPHY

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