ABSTRACT
The primary notion conveyed by torts definitions is that a tort is a civil wrong that may be recovered through a civil action for unliquidated damages and is not a violation of contract. In India, tort law is mostly founded on common law rather than statute. As a result, there is no written text or documents that define them. Tort was introduced to India during the British colonial period, although it is still in its infancy in terms of application and acceptance. Intentional infliction of emotional distress (IIED), a common law tort, is a widespread occurrence. It seems that in almost every wrongful discharge suit by a terminated employee at-will, or lawsuit to redress bullying-like conduct at work, or lawsuit pursuant to civil rights act for discrimination or harassment there appears a count for the IIED tort. Similarly, sexual harassment cases at workplace is also very common. This paper tries to analyse IIED and sexual harassment at workplace by various case study and their analyses.
INTRODUCTION
A workplace is a location where workers should be provided with adequate safety and medical attention. Unsafe working conditions, on the other hand, have obvious implications for both the people involved and the business as a whole. Workplace violence is not just directed at a person, but it may also have a negative impact on the whole business. Not just in India, but also in other nations, the rate of crime committed in the workplace has climbed on a consistent basis.
Sexual Harassment is defined by the CEDAW[1] as unwelcome sexually determined behaviour such as physical contact and approaches, sexually coloured remarks, exhibiting pornography, and making sexual demands, whether by words or deeds. It is discriminatory when the woman has reasonable reasons to think that her objection will disadvantage her in connection with her job, including hiring or promotion, or when it creates a hostile working environment; it is humiliating and may pose a health and safety risk.[2]
Intentional Infliction of Emotional Distress (hereafter IIED) is a dynamic tort that compensates victims of socially repugnant behaviour that causes significant emotional suffering. The term “IIED” refers to behaviour that is so excessive or outrageous that it causes great trauma to the victim. The action must be deliberate or irresponsible, and it must be one that a reasonable person would expect to be emotionally distressing to another. Severe mental discomfort can be accompanied by physical violence or threats of physical harm. A victim must prove that the defendant’s conduct was outrageous and that the defendant either intended to cause emotional distress or acted recklessly, indicating the likelihood that the victim would suffer emotional distress, in order to establish a claim of intentional infliction of emotional distress. The victim must also establish that she was harmed emotionally as a result of his actions, demonstrating that his actions are intended to cause emotional distress. [3]
So, if someone commits assault or abuse, or confines another person in a certain location without their agreement for the purpose of sexual exploitation, and that person suffers emotional distress, that person can be charged with sexual harassment.
Women’s Rights Movements, a growth in the number of women in the workforce, women’s education, and the passage of the Convention on the Elimination of All Forms of Discrimination Against Women have all contributed to a greater awareness of this issue. This paper focuses on the intentional infliction of emotional distress and sexual harassment at work place.
REVIEW OF LITERATURE
Hellner and Atwood (2017)[4] according to research, false allegations of faults, rejections of viewpoints, dismissal of complaints, unequal standards based on perceived favouritism, and continual criticism are the most prevalent perceived examples of bullying in private sector workplaces.
Willness, Steel, and Lee (2005)[5] point out that sexual harassment is a real workplace problem with substantial implications, and that future research should build on this fundamental foundation in order to develop effective preventive and eradication tactics and organisational efforts.
Rajput (2017)[6] cites the findings of a poll revealing that 38% of women have experienced sexual harassment at work. Fear, shame, and a lack of confidence prevented 68.9% of them from making a complaint. Sixty-two percent of women claimed their workplace did not follow the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act of 2013.
In an article published in Business Insider, India, Sharma (2014)[7] claims that Indian women do not feel secure at work, citing a recent poll performed by Nimbuzz, a cross-platform mobile phone and messaging programme. According to the study, dubbed Nimbuzz – Pulse of the Nation, 47% of women believe that sexual harassment is their top workplace concern, followed by wage disparity and uneven chances. According to the same survey, not only women but even males believe that sexual harassment is a prevalent problem for working women and that their female coworkers have been sexually harassed in some form.
According to O’Grady and Bates (2016)[8], nearly one out of every five women has been the victim of unwelcome sexual approaches. Sexual harassment at work, they claim, is also becoming more prevalent. It has to be eradicated. Sexual harassment is a nasty reality for too many women at work, and it’s often disregarded as harmless conversation.
Panda (2016) discusses the growth of the law dealing to sexual harassment at work, and she points out that sexual harassment at work is one of the most widespread offences against women in India. From time to time, specific law has been adopted for the prevention and regulation of female sexual exploitation. One of these, she claims, is the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redress) Act of 2013.
Unnikrishnan et al. (2010)[9] further point out that harassment is a critical problem that the government must address in order to guarantee a safe working environment for women.
Bullying in the workplace may have serious emotional, psychological, and physical implications for those who are bullied. According to Powers et al. (2013)[10], victims report worse well-being and self-esteem, lower work satisfaction, depression, anxiety, irritability, and greater stress than non-bullied employees, as well as associated health concerns. Bullying also endangers greater turnover, absenteeism, forced transfers and resignations, decreased involvement, a drop in morale, and increased incivility (Richardson, Hall, and Joiner, 2016; Powers, et al., 2013; Namie, 2003). Bullying witnesses may also suffer negative consequences (Powers, et al., 2013). To give an example, Hellner and Atwood (2017: 30) cite a 2007 British research that revealed bullying costs British firms almost $22.5 billion per year, owing to employee turnover, absenteeism, and poorer productivity.
The IIED tort is a civil wrong for which civil damages can be sought. Because society does not regard the injury done to be sufficiently significant to justify the application of criminal penalties, there are no criminal consequences to the tort in and of itself (Stein, 2017).
(Restatement (Third) of Torts, Section 46, 2012; Jones and Norwood, 2017[11]; Morris, 2016[12]; Pagnattaro, 2015[13]; Cavico and Mujtaba, 2014[14]; Cavico, 2003[15]) to understand the tort of IIED in the workplace, it is important to first define the elements of this cause of action. Despite the fact that this body of law is state-specific, there are various elements to the tort that the plaintiff must demonstrate in order to win: 1) The defendant intended to purposefully inflict emotional distress on a person; 2) the defendant’s conduct (the employer in this case) was extreme and outrageous; 3) the defendant’s actions caused the plaintiff to suffer emotional distress; and 4) the resulting emotional distress was severe.
CASE STUDY AND ANALYSIS
- Vishaka & Ors. V/S State of Rajasthan[16] – Sexual Harassment Landmark Case
Bench Of Judges: CJI, Sujata V. Manohar, B. N. Kirpal
The Vishaka Judgement arose from the barbaric gang rape of a social worker in Rajasthan, Bhanwari Devi, for attempting to prevent a child marriage. The marriage took place after that, but the parents of that girl determined to seek vengeance. In 1992, she was gang raped in front of her husband, who was also beaten up, by a bunch of Thakurs. Despite the fact that the trial court ruled against her, she did not give up hope.
Then she and her coworkers file a Public Interest Litigation (PIL) in the Supreme Court of India, requesting that the court issue specific orders addressing sexual harassment that women face at work. The verdict in Vishaka was the next step. This case is significant in Indian legal history since it was the country’s first authoritative ruling on sexual harassment.
It was seen as a constitutional tort. Under article 15, 21, 19(1) of the Indian Constitution, even working women have the right to gender equality, to work with dignity, and to a safe and secure working environment free of sexual harassment or abuse. Because before this, the ladies filed a complaint under the IPC, which deals with “criminal assault of women with the intent to offend women’s modesty.” And the court established some principles, which will be followed until legislation on the subject is enacted.
According to these guidelines, every organisation must have a disciplinary body that takes action against sexual harassment in that company. Then followed the Justice Verma Committee Report, which said that an Employment Tribunal should be established in place of the Internal Complaints Committee. The Committee suggested that he believed that establishing an internal committee made up of members who work at the same company would contradict the objective of having such a committee to investigate sexual harassment claims since the employer would be able to exert pressure on the members. The Sexual Harassment at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, was then enacted by Parliament. It protects employees from sexual harassment at work and helps to prevent and resolve sexual harassment complaints.
- In addition, Indian courts have given damages for mental harassment, mental and emotional anguish induced by physical harm in situations involving workplace employment, construction, and certain motor vehicle accidents, among other things. For example, in R.D. Hattangadi v. Pest Control Ltd. and Ors.,[17] the courts, while determining the amount of compensation to be paid to the victim, defined non-pecuniary damages as “they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future… (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.”
- Apparel Export Promotion Council v. A.K Chopra[18]
In this case, the Supreme Court supported the removal of a higher official of the Delhi based Apparel Export Promotion Council who was found guilty of sexually harassing a subordinate female employee at the workplace.
Supreme Court broadened the scope of sexual harassment by declaring that physical contact was not needed for it to amount to an act of sexual harassment. The Supreme Court explained that “sexual harassment is a form of sex discrimination projected through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual overtones, whether directly or by implication, particularly when submission to or rejection of such conduct by the female employee was capable of being used for affecting the employment of the female employee and unreasonably interfering with her work performance and had the effect of creating an intimidating or hostile work environment for her.”
- Supreme Court Judge A K Ganguly
During a hotel stay in New Delhi in December 2013, a law intern accused Justice Ganguly of sexual harassment and making unwanted approaches toward her. In response to a tell-all blog post written by the victim that went viral, the Supreme Court formed a committee of three justices to investigate the case for the facts despite all the media attention. According to the panel, the charges of “unwelcome behaviour” and “sexual conduct” were genuine, which resulted in his resignation and removal from his position as the chairman of the West Bengal Human Rights Commission in 2014.
CONCLUSION
Sexual harassment at the workplace is a social ill that must be addressed, and compensation for the losses caused should be made available to those affected. Tort law does not adequately compensate victims of sexual harassment in the workplace for the serious mental and physical injury they have suffered, necessitating the creation of a new tort known as the Tort for Sexual Harassment. Individual claims under the IIED are rare and implausible in India due to the lack of legislation. Although the American and English courts have established principles for IIED compensation, the claims in India are still parasitically attached to separate other claims under the Indian Penal Code (e.g. mental distress and emotional impact), the Hindu Marriage Act (e.g. mental and emotional cruelty), and other statutes. Considering the modern-day problems that individuals face and the negative impact that simple words or acts can have on their mental health, the implementation of IIED as a tort, as well as its growth in India, are urgently required.
RECOMMENDATIONS
Sexual harassment is a significant problem that women face, and it occurs most frequently in the workplace.[19] The vast majority of occurrences of sexual harassment are recorded as criminal offences. Torts, on the other hand, appear to be a successful technique because they allow the victim to obtain a remedy, but they do not provide enough satisfaction since damages in torts are awarded in the form of compensation rather than recompense for the individual’s pain and suffering.
- There are a variety of laws that provide for criminal prosecution for acts of sexual harassment, but there is a pressing need to develop strict Tort Laws that provide monetary compensation to victims for economic losses suffered as a result of being unemployed, being fired, or resigning from an earlier job, or as a result of inefficiency at the same job.
- In criminal law, any wrongdoing must be proven beyond a reasonable doubt. So, if severe tort rules for sexual harassment emerge, women will have an easier time since they would need less evidence and will have a lower burden of proof. To establish a cause of action, victims do not need to specify which portion of the defendant’s body touched which part of the plaintiff’s body. In a battery case, for example, a plaintiff merely needs to show that she was damaged or offended as a result of the defendant’s touch, as well as that the defendant intended the contact and probable pain or offence.
[1] Convention on the Elimination of all Forms of Discrimination Against Women is an international treaty adopted in 1979 by the United Nations General Assembly.
[2] B.D. Singh, Issue of Sexual Harassment
[3] Timothy B. Broderick & Katrina M. Telfer, A victims guide to sexual harassment in California (2008).
[4] Hellner, Bobby and Atwood, Jennifer (2017). Put Up Your Dukes: Are Anti-Bullying Measures in Conflict with Free Speech? Legislators and the Courts May Be At Odds. Professional Times, 1(2), 29-33.
[5] Chelsea R. Willness, Piers Steel & Kibeom Lee, A META‐ANALYSIS OF THE ANTECEDENTS AND CONSEQUENCES OF WORKPLACE SEXUAL HARASSMENT Wiley Online Library (2007), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1744-6570.2007.00067.x.
[6] PressReader.com – Digital Newspaper & Magazine Subscriptions, https://www.pressreader.com/india/hindustan-times-lucknow/20170104/281612420076189.
[7] 47% Of Indian Women Find Sexual Harassment At The Workplace A Big Issue, Business Insider (2014), https://www.businessinsider.in/47-of-indian-women-find-sexual-harassment-at-the-workplace-a-big-issue/articleshow/45070664.cms.
[8] Sexual harassment at work is getting worse. We need to stamp it out | Laura Bates and Frances O’Grady, The Guardian (2016), https://www.theguardian.com/commentisfree/2016/aug/10/sexual-harassment-at-work-getting-worse.
[9] Unnikrishnan B, Rekha T, Kumar G, Reshmi B, Mithra P, Sanjeev B. Harassment among women at workplace: A cross-sectional study in coastal South India. Indian J Community Med 2010;35:350-2
[10] Powers, J. L, Brotheridge, C. M, Blenkinsopp, J., Bowes-Sperry. L., Bozionelos, N., Buzady, Z., Chuang, A., Drnevich, D., Garzon-Vico, A., Leighton, C., Madero, S. M., Mak, W., Mathew, R., Monserrat, S. I., Mujtaba, B. G., Olivas-Lujan, M. R., Polychroniou, P., Sprigg, C. A., Axtell, C., Holman, D. Ruiz-Gutierrez, J.A., and Obiajulu Nnedum, A. U. (2013). Acceptability of workplace bullying: A comparative study on six continents. Journal of Business Research, 66(1), 374-380.
[11] Jones, Trina and Jade Norwood, Kimberly (2017). Aggressive Encounters and White Fragility: Deconstructing the Trope of the Angry Black Woman. Iowa Law Review, 201, 2017-2068.
[12] Morris, Sarah E. (2016). Tackling Workplace Bullying in Tort: Emerging Extreme and Outrageous Conduct Test Averts Need for Statutory Solution. ABA Journal of Labor & Employment Law, 31, 257-294.
[13] Pagnattaro, M. A. (2015). The OUTRAGEOUS Tort: Intentional Infliction of Emotional Distress in the Workplace. Journal of Legal Studies in Business, 8, 137-54.
[14] Cavico, Frank J. and Mujtaba, Bahaudin G. (2014). Legal Challenges for the Global Manager and Entrepreneur (Second Edition). Dubuque, Iowa: Kendall Hunt Publishing Company.
[15] Cavico, Frank J. (2003). The Tort of Intentional Infliction of Emotional Distress in the Private Employment Sector. Hofstra Labor & Employment Law Journal, 21(1), 109-182.
[16] [16] Vishaka & Ors. v State of Rajasthan (1997) 6 SCC 241
[17] 1995 AIR 755, 1995 SCC (1) 551
[18] A.I.R. 1999 S.C. 625
[19] National Academies of Sciences, Engineering & and Medicine, Sexual Harassment Research Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. (2018), https://www.ncbi.nlm.nih.gov/books/NBK519455/.
BA LLB (Hons)
First Year
Research Project
Submitted By
Amritee Choudhury
KIRIT P MEHTA SCHOOL OF LAW
NMIMS MUMBAI