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DHARMASHASTRA NATIONAL LAW

UNIVERSITY, JABALPUR

(Session 2020-2021)

Sexual Harassment as a Tort

Submitted To: Submitted By:

Dr. Veena Roshan Jose Sanskrati Jain

[Assistant Professor Section B

of Law of Torts] BALLB/116/20

Semester -II
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ABSTRACT
The project in toto talks about tortious liability in case of sexual harassment. And it also analyses the
topic in detail. The project firstly introduces the topic and tries to familiarize the readers to the topic
so discussed, then research related objectives, questions, methodology etc. things are being
mentioned. After that author categorically introduces and provides detailed insights into what are the
constituents of sexual harassment is and then mentions all the related doctrines of tort under which
sexual harassment. The author has also tried to explain all the doctrines or established laws
categorically. The tort of battery has been discussed at length because it is the first tort that will be
committed if sexual harassment occurs. After that the author has tried to give a proper analysis of
issues and challenges related with laws and established doctrines of tort. The issues which are there
with laws and societal acceptability have been discussed here. At last, the author has tried to
conclude her arguments with the observations made during the research and study. The author has
also tried to give suggestions which she thought appropriate enough to tackle issues and challenges
identified.
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ACKNOWLEDGEMENT
The completion of this project required counselling and assistance from many people and I’m really
thankful towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher asst. professor Dr. Veena Roshan Jose,
who took acute interest in my project and guided me all along. I’m feeling extremely privileged to
have her as my instructor in the project. I owe my deep gratitude to the vice-chancellor sir Prof.
Balraj Chauhan for his valuable support throughout the project. This project helped me in gathering
a lot of knowledge and becoming more aware of things related to my topic.

I would like to extend my gratefulness to my parents and friends for their valuable support and
advice. I am making this project not only to get marks but also to enhance my knowledge. At the end
I would like thank everyone who helped me and invested their valuable time for this project.

Sanskrati Jain
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Table of Contents

1. Abstract.............................................................................................................2

2. Acknowledgement.......................................................................................3

3. Introduction.....................................................................................................5

4. Research Questions......................................................................................6

5. Scope of the Project.....................................................................................6

6. Relevant Legal Provisions........................................................................6

1. Assault...............................................................................................................6

2. Battery...............................................................................................................7

3. False Imprisonment..........................................................................................8

4. Invasion of Privacy...........................................................................................8

5. Intentional Infliction of Emotional Distress.....................................................9

7. Issues and Challenges...............................................................................10

8. Conclusion and Suggestions..................................................................11

9. Bibilography.................................................................................................12
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INTRODUCTION
Every person in his/er lifetime has faced sexual harassment at any level or other, whether it is on the
street or at workplace. Now a days woman (more than men) 1 often faces harassments at verbal,
physical and non-verbal level in following forms. Such as whistling, sexual comments about her
body, clothing or looks or innuendos, turning work discussions to sexual topics sharing sexual jokes
or stories, spreading rumours or lies about a women’s, catcalls, unwanted letters, telephone calls, or
materials of a sexual nature. Physical harassment in form of touching her clothes, hair, or body parts,
hugging, kissing, spanking, patting, or stroking, touching, massaging or rubbing oneself sexually
around another person, standing close, pinching, cornering or brushing up against another person.
And non-verbal harassment in different manner such as staring her up and down (Elevator eyes),
blocking a woman’s route ,staking a woman, displaying sexually suggestive visuals, making sexual
gestures with hands or through body movements, winking, throwing kisses, howling or licking lips
etc.

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. 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”.2

The act of sexual harassment is usually considered to be a criminal wrong and most of the people
think that no civil suit could be filed against the harasser, but the notion is not correct and a harasser
can be held tortiously liable for sexually harassing a woman. Firstly, an act of sexual harassment
fulfils the three essentials of a tort, which are-

 An act or omission- Sexual Harassment is obviously a discharge of an act that is not stipulated
by law.

 Legal damage- the principle of injuria sine damnum has to be proven, i.e., it has to be proved
that though the act of sexual harassment has not inflicted any physical injury on the victim, but
it violated the legal right of that individual, which according to the given principle, should not
go unheard.

1
Although the concept of sexual harassment is not bound to any gender but women more often face this thing that’s why
the project use the feminine subjects and pronouns more often.
2
https://www.globalhealthrights.org/instrument/cedaw-general-recommendation-no-19-violence-against-women/
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 Legal Remedy- Compensating the aggrieved party is the ultimate goal of Tort Law. Hence, this
essential is also fulfilled because no just complaint of sexual harassment in the court of law
goes unheard.

The project will discuss the different aspects related to sexual harassment in tort laws only and will
delve into the cases and laws relevant to it. We will see the remedies available for tortious act of
sexual harassment, what are those specific torts under which the sexual harassment can be covered
etc.

RESEARCH QUESTIONS
 What would be the tortious liability (if any) in case of Sexual Harassment?
 What are the relevant laws under tort law for sexual harassment?
 What kind of remedies are available under tort law for the victim of sexual harassment?
 Can a person and government for that case may be held vicariously liable for the tortious act of
its employee in cases of sexual harassment?

SCOPE OF THE PROJECT

Sexual harassment can be both a crime and a tort. But for the sake of convenience and focused study
the scope of the project has been restricted to the study of sexual harassment under the ambit of tort
law only. The criminal liability or scope of sexual harassment in criminal law has been skipped or
somewhere only discussed superficially, wherever necessary. These is so because the determinants,
remedies and factors acting are entirely different under both the laws.

RELEVANT LEGAL PROVISIONS

The concept of sexual harassment as a tort is a new as well as a very wide concept. And due to this
newness of the concept, there is no particular or specific law or theory that can deal with a sexual
assault lawsuit. But under tort of trespass to a person which includes the torts like assault, battery,
false imprisonment, intrusion to privacy, and Intentional Infliction of emotional distress. As 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. 3 The tort of assault(in context of sexual assault)
can be defined as sexual contact characterized by the use of force, an attempt or threat to do a
3
Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, The Law of Torts, 26th Edition, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2010 (Ratanlal Dhirajlal)
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corporeal hurt to the victim, abuse of power, coupled with an apparent present ability and intention to
do the act. For corroborating sexual harassment as an 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.4

But there is an exception, that only verbal abuse perse can’t be actionable. For it to qualify as an
assault, the verbal abuse has to be supplemented with any act which builds an apprehension of
battery for the victim. In one case, an employee defendant was found liable for assault and battery
after grabbing the plaintiff and touching various parts of her body, but mere verbal abuse alone
typically will not support a cause of action for battery. However, if sufficiently threatening, verbal
harassment alone may cause a plaintiff to fear imminent physical harm, and thus an assault claim
may be easier to prove than battery for a victim of sexual harassment that consists only of verbal
harassment.5

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.6 To prove the accused liable for battery as sexual harassment, the aggrieved
has to only prove that the accused has touched her, even if he has not caused any harm to her.
Sometimes in case of sexual harassment the victim goes through an anticipation of unwanted and
inappropriate physical touch which is at times also considered as actual touch. Thus, it is tenable that
in case of a sexual harassment, the victim goes through the apprehension of an unwanted or
unexpected physical touch which is sometimes also partnered by actual touch. Hence, the victim can
file a law suit jointly for assault and battery.

For example, photographer who claims he is “arranging” the victim’s body or body parts for a
photography shoot could be charged with battery in case if the touch is sexual or meant for sexual
gratification. Or if a massage therapist or health care provider who claims touch or intercourse is
therapeutic or otherwise necessary could be charged with sexual battery or rape.

The case of Skousen v. Nidy 7, was one of the first cases in which court considered the notion that
sexual harassment was unlawful not because it diminished a woman’s “value,” but rather because it
harmed her physically, mentally, and economically. In this case a female trailer park worker brought

4
Krista J. Schoenheider, A Theory of Tort Liability for Sexual Harassment in The Workplace, 1987, University of
Pennsylvania
5
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4011&context=penn_law_review
6
Ratanlal Dhirajlal, supra note 4 at 6
7
90 Ariz. 215, 367 P.2d 248 (1961)
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suit against her employer for assault and battery based on repeated offensive touching and violent
assaults. The woman was awarded both compensatory and punitive damages, upon the court's
recognition that the emotional harm that results from sexual harassment should be compensated, and
the harasser should be punished.

8
The court in Kanzler v. Renner expressly used the term "sexual harassment" to mean a broader
range of conduct that make a person feel uncomfortable, including elevator eyes, winking, throwing
kisses, howling or licking lips, touching (accidental or intentional), suggestive or derogatory
remarks, or demands for sex.

FALSE IMPRISONMENT - False imprisonment is restraining a person in a bounded area without

any lawful justification or consent. To prove liability for sexual harassment under this tort there are
two essentials:

1. There must be total restraint of the liberty of a person which may be the actual use of physical
force or constructive use of authority and power.

2. The detention must be unlawful.9

INVASION OF PRIVACY - The tort of invasion to privacy refers to an intentional encroachment

or intrusion of the personal privacy of another person without his or her approval. To constitute the
liability for sexual harassment under this wrong the prerequisites are:

1. The accused shall have intentionally invaded the private affairs of the victim without his or
her consent.

2. The invasion shall be offensive to a reasonable person.

3. The matter that the accused intruded upon must involve a private matter .

4. The intrusion has caused mental anguish or suffering to the victim.10

In the case of Phillips v. Smalley Maintenance Services 11, the court observed that the employer’s
constant interrogations about his employee’s sex life and frequent demands for sexual favour have
caused the woman to suffer from chronic anxiety, to contemplate suicide, and to require counselling
and medication. The court decided that the victim is suffering is due to intrusive invasion of privacy

8
937 P.2d 1337 (Wyo. 1997)
9
http://www.ejusticeindia.com/tort-for-sexual-harassment/
And as per the principles developed in case of Vidya Akhave v. Union of India, Writ Petition No. 796 of 2015
& Vinson v. Taylor, 753 F.2d 141 (D.C. Cir. 1985)
10
Ibid.
11
526 F. Supp. 523 (D.D.C. 1981)
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by the employer. Therefore, the court upheld an award of compensatory damages for the woman’s
medical costs, as well as for her mental torment.

Rogers v. Loews L'Enfant Plaza Hotel,12 the court held that intrusion included a supervisor's making
calls to and visiting an employee at home, even where the calls and visits were not always overtly
sexual, but were unrelated to work, and persistent and unwelcome. At least one court has even
expanded the invasion of privacy tort to include intrusion into psychological emotional solitude,
holding that a supervisor's constant questions about the plaintiff's sex life and frequent sexual
demands constituted intrusion.

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.13

In Bennett v. Furr’s Cafeterias,14 the victim of institute suit against her employer for harassment
violations, assault, battery, and infliction of emotional distress. The victim alleged that on several
occasions her supervisor had made unwanted sexual advances and physically assaulted her during
business trips. The court upheld victim claims and award damages.

In the matter of Howard University v. Best,15 the female professor claimed that the male dean’s
sexual advances and deliberate creation of a hostile work environment had resulted in her
termination of employment. The accused intentional action had caused her to develop hypertension
therefore, she required counselling. The Court of Appeals observed that outrageous conduct of the
dean was violated public policy and therefore, upheld the plaintiff’s tort claim.

All the above-mentioned doctrines are related to tort law and hence are only useful in case of civil
suits. Majorly the cased filed against sexual harassment are criminal law suits under Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Indian
Penal Code, 1860’s section 294, 354 and 509, The Indecent Representation of Women (Prohibition)
Act, 1987, The Protection of Children from Sexual Offences (POCSO) Act, 2012, Guidelines

12
526 F. Supp. 523, 528 (D.D.C. 1981)
13
Timothy B. Broderick and Katrina Telfer Saleen, A Victim’s Guide to Sexual Harassment, Broderick Law Firm,
14
549 F. Supp. 887 (D. Colo. 1982)
15
484 A.2d 958 (D.C. 1984)
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formulated in Vishakha v. State of Rajasthan & Ors.16etc. All this are relevant laws which are
applied in case of sexual harassment as per the facts of the case.

And if the sexual harassment occurred at workplace and the employer was negligent to the
17
complaints of the victim then he can be made vicariously liable for that. The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 obliges every employer to
“provide a safe working environment at the workplace”, which includes “safety from the persons
coming into contact at the workplace.”

ISSUES AND CHALLENGES

Law should be according to the needs of the society and changing times. And every society has it’s
own needs and develops at its own pace. Most of the doctrines of tort law and even many Acts and
legislations pertaining to the criminal liability in case of sexual harassment have been directly
inherited from the other foreign countries, especially in case of tort law. And same is the issue with
this thing the requirement of laws for our country is different from the countries from where we have
inherited those laws. The nature of law, execution of the to the ground zero and awareness of their
existence of those laws all are different in our country and the origin countries. Moreover, tort laws
are still at it’s nascent stage in India. And awareness about the tort laws is meagre. Most of the cases
are filed pleading for the criminal liability of the person, being unaware that accused can also be
held civilly liable and can be compelled to compensate. Sexual harassment cases are quintessential of
this phenomenon. A very few people fil civil law suit for which criminal suit could be filed.

Human is a social animal and to gain societal acceptance human can go far and more far. If a woman
or a person files a civil suit for an act like sexual harassment the society disapproves it. The society
proclaims that woman or person to be of loose character and use various harsh words like whore for
them. The society disapprove the notion compensation for such an undignified act.

The apex court through this landmark judgment of Vishakha 18 had had a golden opportunity to
highlight the civil liability in cases of sexual harassment, but missed that. The court provided the
16
AIR 1997 SC 3011 (Vishakha Judgement)
During the 1990s, Rajasthan state government employee Bhanwari Devi who tried to prevent child marriage as part of
her duties as a worker of the Women Development Programme was raped by the landlords of the community. The trial
court acquitted the offenders and this inspired several women’s groups to file a writ petition in the Supreme Court of
India. The Supreme Court through this landmark judgment stated that every instance of sexual harassment is a violation
of fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution of India. It also amounts to violation of
the “Right to freedom” under Article 19.
17
In Ford v. Revlon, 734 P.2d 580 (Ariz. 1987), the court held that the defendant employer could be held liable for
Intentional Infliction of Emotional Distress based on their inaction after the plaintiff reported incidents of sexual
harassment both through the official company procedure and outside of it. The court stated that it was outrageous for
Revlon to "[drag] the matter out for months and [leave] Ford without redress."'
18
Ibid.
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guidelines pertaining to the duty of employer, preventative steps, complaint mechanism, third party
harassments, standard operating procedure for the victim, employer and government, and also asked
the legislature to come up with a specific law on the matter. But in this very sound and good
judgement they forgot the possibility of civil liability in such cases.

After the Nirbhaya case in 2012, Justice Verma committee was constituted to look into this matter,
but they also didn’t heed upon the matter of civil liability or under tort laws. The report 19 by the
committee was limited to the recommendations for improving the criminal laws related to it in India.
The Criminal Law (Amendment) Act, 2013 and The Sexual Harassment of Women at Workplace
(Prevention, Prohibition and Redressal) Act 2013 were passed by the legislature, which were based
on recommendations made by Jus. Verma committee so they also didn’t include the clause related to
civil liability.

CONCLUSION AND SUGGESTIONS

Sexual harassment is sheer violation of dignity and fundamental rights of the victim. Most of such
case are reported to make a person criminally liable. Though tort appears to be an effective and
efficient means for redressing this wrong. Even though it is effective means of getting remedy but by
this victim claim the remedy but it not gives proper satisfaction because damages in torts are given in
form of compensation and not for the pain, agony, distress, humiliation and suffering of the victim.
Furthermore, it is challenging to hold on to one particular definition of sexual harassment because
different acts may be uncomfortable for different people. The tort needs to gradually develop with
time and necessity.

There are various Legislations and doctrines which provide for criminal proceedings for the act of
sexual harassment, but there is a requirement to develop strict Tort Laws which provide monetary
compensation to the victim for the economic loss suffered either due to unemployment due to
emotional distress happened to that person or physical inability to do employed work due to battery
or being fired or resigning from the earlier workplace.

To proof any act wrong under criminal law it must be proved beyond any reasonable doubt. So, if
stringent tort laws for sexual harassment develop then it is easy for the victim 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 contact and that the defendant intended the contact and possible harm or offence.
19
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf
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The laws already in force and mentioned above as well have led to increase in the number of cases
being reported, but all this increase has been in criminal cases. So, the efforts which such as the
judgement of Vishakha vs State of Rajasthan, Justice Verma Committee Report and the Sexual
Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 played phenomenal
role and at least the new laws and guidelines served to improve awareness about the obligations of
employers and rights of employees in case of workplace sexual harassment. The same should be
done by the government to create awareness through various educational programmes and
professional trainings to the advocates for the civil law suits or civil liability under tort laws for
sexual harassment cases.

The society should also change with time and instead of blaming the victim and disapproving the
civil cases in cases try to understand the rationale behind such laws. The society can evolve only if it
gets proper education and direction. Th legislature should enact specific laws relating to it and make
them available to the public at large and make people understand the rationale of the laws. And most
importantly the laws duly enacted should be implemented with utmost seriousness on the ground
zero.

BIBILOGRAPHY
Research Paper:-

A research paper has been gone through for the purpose of getting a deeper insight of the topic. The
paper titled “Issue of Sexual Harassment - A Legal Perspective” by B.D. Singh published by Shri
Ram Centre for Industrial Relations and Human Resources in Indian Journal of Industrial Relations,
vol. 36, no. 1, 2000, pp. 79–91 also available at JSTOR (www.jstor.org/stable/27767699) The paper
thoroughly talks about the constituents of sexual harassment and a precise and crisp definition of
sexual harassment. Also deals with the remedies available under tort law for the sexual harassment to
a person. The international laws relevant and their comparison with Indian law has also been done.

Books:-

 Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore, “The Law of Torts”, 26th Edition,
Lexis Nexis Butterworths Wadhwa, Nagpur, 2010
 Dr. R. K. Bangia, “Law of Tort”, 22nd Edition, Allahabad Law Agency, Faridabad, 2010.

Websites:-

 Legal Services India

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 Legal Voice Blog. WordPress

 E-justice. India
 Paper Due

Newspaper:

 Indian Express
 The Hindu
 Hindustan Times
 Times of India
 The Wire
 The Print