Vicarious Liability of Employers in Sexual torts committed by employees - CEDAW

If you want to be safe, better don't exist!!"- The only solution provided to our womenfolk. This represents a very dismal state of affairs. In a country which considers a female baby being born in the family as a bane to its economic position, harassing the woman anywhere is not a surprising phenomenon. Owing to her "incapacity" to fight out openly, thanks to the family prestige, she has been taken for granted in all the situations she faces. Law plays a very mild role in changing the position of the status of women. A number of Legislations have been laid down with a fond hope of preventing the harassment of women in general and in workplaces, specifically. The effectiveness of each of these Legislations is something which has to be analyzed, in order to get a clear picture of the oblivious reality.

Sexual Harassment At Workplaces:

Unlike the women of ancient time, the present day woman is almost on par with the men folk, save the dignity and status she has to be given, struggling to establish her position as a separate entity in the society. However, she is failed to be accorded with the respect she is entitled to claim, as a human being.
Non Governmental Organizations play a pivotal role in coming to the rescue of women subjected to harassment at the workplaces by the superiors or her co workers. A classic example for such situation is Vishaka v/s State of Rajasthan where, on behalf of a woman employee who was subjected to sexual abuse by her superior officer, a NGO (Vishaka) filed a petition to draw the attention of the Court, as to the atrocities committed on the women folk in workplaces. This case was a landmark decision towards the self empowerment of women. For the first time, Courts have decided based on an international instrument, when there was no law specifically in force in India, for matters relating to sexual harassment. The move was based on India's ratification of the international instrument, Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).

Sexual Harassment:

The Court, in Vishaka's case has ventured into enumerating the possible acts that would attract penal provisions, as follows:
i) Physical contacts and advances;
ii) A demand or request for sexual favours;
iii) Sexually coloured remarks;
iv) Showing pornography;
v) Any other unwelcome physical, verbal or verbal conduct of sexual nature.

Employer's Responsibilities:

After this case, it became mandatory for all employers to follow the guidelines laid down in it; however, there were no measures for breach of such guidelines. The employer has a primary duty to see that, sexual harassment is not inflicted upon the women employees in any form whatsoever. He has a statutory duty that is cast upon him to take measures to prevent such occurrences and penal actions have also been stipulated to be inflicted on the harasser. The victims should be allowed to get a transfer so that they are not victimized further.

It has also been stipulated that a complaint mechanism should be provided compulsorily by the employer, with the committee free to handle complaints regarding sexual harassment, headed by a woman, facilitating free access to the women to voice out their grievances.

However, there is nothing to impute liability on the employer for the sexual torts committed by the employees or the supervisors, under the Indian Law. However, employers cannot be immune from such liability and allowed to go scot-free on the ground of not being aware of such lowly occurrences at their workplaces.
Whereas, the Laws in the United States permit a woman employee to implead an employer as a party in a case of sexual harassment by a supervisor or a colleague , even when the woman does not suffer any adverse employment action.

To impute a vicarious liability on the employer, the conditions to be fulfilled necessarily are that: i) there should be an employer employee relationship and ii) the alleged act of sexual harassment should have occurred in the course of employment.

The problem in this case is that the employer always tries to evade responsibility in such cases of vicarious liability and it inevitably leads to the preference of independent contractors. The quintessential issue is whether employers have to necessarily be made liable for the personal acts committed by the employees?

A very common defense taken by the employer would obviously be that they cannot be made liable for sexual harassment committed by their employees. The principle of agency is to be comprehended. A careful analysis would probably lead to the conclusion that, a business must bear the costs, as well as retain the benefits.

Position In India:
The Indian Law has not yet dealt with vicarious "liability" of employers. It is merely a duty that is cast upon the employer. With the number of women entering the fray of employment, including manual jobs, it creates a lot of possibilities for all kinds of misbehavior in the workplaces. It therefore places an onus on the employer to not only take measures to prohibit such acts, but assume moral and ultimate responsibility in cases where such denial of sexual favours has resulted in tangible employment action.

A tangible employment action is a means by which a supervisor brings official power of enterprise to bear on subordinates, the common possibilities being deprived of promotions entitled to, refraining from giving a salary hike when the woman is in reality, owing to her performance in the job, is entitled to. Where such tangible employment actions culminate, it obviously becomes the duty of the employer to own up the cause for it, though he might not necessarily be a party to it.

The primary reason attributable to it could probably be that, the agent (or the supervisor in this case) is usually considered an alter-ego of the employer. The acts committed by an employee in relation to a personal enmity, if affecting the terms of employment, naturally, by principles of agency, attracts vicarious liability of the employer.

Inevitably, where there is a rule, there are definitely exceptions to it. If the employer wants to evade liability, he could as well proceed to blame the victim herself, on the basis that, she had not availed of any of the preventive measures provided by the employer and that it had happened in spite of all reasonable care taken by the employer to prevent such mishap. These defenses are available to the employer for.
i) cases which have culminated into a tangible employment action
ii) not evading liability but only to limit the amount of damages payable to the victim of sexual harassment.

The liability of the employer in these cases of harassment is not for the physical acts committed on the victim, but the psychological trauma she is made to undergo, and the social stigma that attaches to a woman in case she is victimized for a sexual harassment. The employer can steer clear of his liability only when he has shown to the complete satisfaction of the Court that he has taken all reasonable and probable steps in regard to preventing the commission of such offence. The common presumption in cases which proceed to implead the employer as a necessary party to the claim for damages in cases of sexual harassment is that, a supervisor could inflict a tangible employment action on an employee only because of the authority delegated by the principal employer.

Consequences of Failure on The Part of Employer To Take Necessary Steps:

The guidelines laid down in vishaka's case were incorporated into the Sexual harassment of women at their workplace (Prevention and Punishment) Bill introduced in 2005. Yet to be ratified, they still stand in the form of mere directives and have not acquired a mandatory nature.

Apart from the legal aspects of failure to implement, the other possible consequences that could follow such indecent behavior in a workplace are:
i) In a competitive world, where women are now an integral part, such harassment creates a hostile work environment, resulting in creation of an unpleasant relation with the colleagues, which in turn spoils the decorum of the organization.
ii) The employee stands the risk of facing firing from the job, apart from the social stigma she will be forced to carry, if the act of such harassment is made public.
iii) She is subject to a trauma, which prevents her from concentrating on her job performance.
iv) A hostile work environment also goes to encompass a very poor rapport among the employer, employee and the supervisor.
It is high time for the employer to realize his moral responsibility and create a peaceful and cordial atmosphere in the organization he heads. It is the need of the hour to regulate good organizational behavior in the institution.

The employer owes a duty to create awareness to the persons in the supervisory cadre as to their responsibilities regarding maintaining decorum in the workplace. A progressive step towards preventing liabilities for acts of some third party would be to make sure that they are not permitted to commit them.
The employers as well as the supervisors should realize and recognize women as an integral part of the organization and the society as well, and not as an object of ridicule and subject of exploitation. It is not an overnight change that could be brought about, but proper awareness about the aftermath of such intrusive acts should be revealed to the employees.

The Indian Penal Code in sections 354 and 509 lays down the penalty a man would be subject to if he does any act outraging the modesty of a woman, knowing it to be an offensive act and as one intruding into her privacy, shall be subject to imprisonment of either kind which may extend to two years and one year respectively.

However, such provisions are not sufficient to safeguard the interests of working women, partly due to the fact that, the woman herself does not want such acts inflicted upon her to be revealed, thanks to the age old mentality of the society, which looks down upon a victim of a sexual harassment.

With an increase in the number of women taking out on BPOs( Business Process Outsourcing) there has obviously been a marked rise in the number of sexual torts committed upon those women, who, though are treated on par with the men when it comes to the pay scale, are made to work even during night shifts and this makes their position precariously vulnerable. Only the employers in such cases are to be blamed. The excuse of they not having any control over such circumstances should stoutly and blatantly be denied.

Can The Employer Be Held Liable Vicariously?

The act of harassment, if occurring inside the premises, and the authority conferred by the employer encourages or enhances the chances of the supervisor to commit such unruly behavior on the woman, it should definitely be treated as one occurring within the scope of employment, thereby attracting the prime principle of law of agency – vicarious liability of the employer.

A major problem is that the employer is also mostly behind the harasser and throw as much pressure on the harassed. The sexual harassment should be treated as a major misconduct and heavy sanctions should be imposed on the harasser. This is the common presumption that the harasser is aided by the employer himself, and for which a lot of factors could be adduced. The employer cannot manifest himself in each and every place in order to check harassment, but this is not an excuse for him to evade liability. He definitely has all means to make sure that such behavior does not occur within the premises.

When the harasser has an immediate control over the woman employee and opportunities are available where the woman has by all possible means cannot evade, but to follow his orders, there is every chance for a mishap to happen owing to her physical weaknesses. The employer in all such cases can relieve her by giving the victim or the harasser a transfer, as requested by the woman. Every one has a right to live with dignity, which are an integral part of life as enshrined u/A 21 of the Indian Constitution. Right to live with dignity is inclusive of right to be protected against sexual harassment Principles of morality also places a burden on the employer to take proper care to protect the woman from undergoing any sort of physical or mental trauma, merely on the basis of her sex. The liability of the employer could possible arise when there is a tangible employment action as mentioned above, which has caused some prejudice to the woman employee. Where it has occurred, the employer cannot, under the Federal Law raise the defense that the employee (victim) has failed to avail herself of the preventive measures provided by him.

A valid suggestion to the employer to prevent sexual harassment and thereby not incurring liability could be as follows:

"Do not let sexual harassment go on – first, you do not have to accept this illegal behavior; second, bad behavior tends to get worse and you may be exposing yourself and the others to danger; third, by allowing the behavior to continue your action may be interpreted by a Human Resources Department or a Judge and Jury as condoning the behavior."

The employer and all employees should realize the importance of treating a woman with dignity and according the respect she is, as an individual entity, entitled to, and to treat her on par with the male employees and not as an object of vengeance or a vent to their emotions. The Indian society still hoards its treasure of orthodox nature of treating a woman belonging only to the house hold. In spite of it, when a woman comes out of her threshold to earn, that should be appreciated and she should not be victimized for it.

In the year 2003 , a landmark judgment was given by the Delhi High Court that an employee who assassinated the character of a woman employee was sentenced to one year imprisonment and a fine of Rs. 1000. The Judge aptly remarked, "The assassination of a character of a woman is worse than her assassination. A person at least dies in peace, but a woman whose character is assassinated has to die inch by inch. She has to face humiliation, pain and agony at every step which is worse than death."

A responsible employer will have to take up liability in case of harassment committed in the course of his employment. The legislations in India have not come forward to infuse liability on the employer for the acts of employees or the supervisors for their sexual torts committed by them. When the employer is prepared to take up vicarious liability in case of any other acts committed in the course of employment, sexual torts do not in reality differ form the others and the reason to evade liability on grounds that they are of a more personal nature cannot be sustained, due to the fact that an employer, according to principles of agency, is liable immaterial of the nature of tort committed by the employee.

The question, however, arises as to the extent of liability. The employer, basing on the federal law principles, is liable to pay damages to the victim. The Indian Courts, in Vishaka's case merely places a duty to incorporate into the standing orders of the industry, position of the employee in case he commits a sexual tort. Penal provisions could also be mentioned in the Standing Orders. The enforcement of these guidelines, which are mandatory, is still very little. Unless a proper Legislation is laid down enunciating the core principles of maintaining decorum in the workplace, it is very difficult to curb the occurrence of such nature.

The employer could be liable only if the situation is so cordial as to enable the victim to report of the unpleasant event in her life at the workplace. The guidelines have taken a step in that direction to make sure that a complaints committee is instituted in all work places employing women, and the procedure is simple and proper remedies are to be taken in harassment cases. Where the nature of work is such that it might aggravate such atmosphere, the employer should take steps to see that women are not made to be a part of that work. Thus, the liability of an employer does not occur in all cases, unless it is proved to the satisfaction of the court that the harassment has been due to the negligence of the employer to take such steps or with the authority and consent of the employer.

Conclusion:
The problem of sexual harassment is a very sensitive issue and it is quintessential part of employment tactics to curb or at least to reduce the intensity of it. The employer 's liability is also an integral part of the object of preventing sexual harassment at workplaces, because of the fact that, unless the employer himself is fastened with the burden of being liable for the indecent acts of his employee, he will not take any vigilant action and not care at all to take preventive measures for the simple reason that all legislations, however strategically framed, will surely fail to achieve its result. Involvement of the employer in the anti-victimization activities of women, if absent, will defeat the very purpose of legislations. The woman too, on her part should not take it as a way to take vengeance on any co worker or the employer himself. Only if such liability is imposed on the employer, even in India, guidelines framed by the court will be effectively followed. Else, the supervisors could find the women an easy target for their illegal demand for sexual favors. The modern day woman is prepared to meet the lion at its den. So it has to be realized that the employer has every chance for being impleaded as a party in case of a sexual tort committed by the employees.

Unless a Legislation is framed to impose vicarious liability on the employer, any other step taken in this direction, placing a request on the employer to see to it that such acts do not occur in the workplace, will be of no avail. Most Human beings work on the principle that, unless a cue is given to them, they will not surge ahead. Similarly, unless and until an employer is imputed with a liability that, if a sexual tort takes place in his workplace, he will be liable vicariously, the employer will never care or bother about the seriousness of the issue. Unless and until legislation to this effect, of making the employers themselves liable for any sexual harassment committed in and during the course of employment, takes root into the industrial arena, all measures in "trying" to curb sexual harassment or protect women from being harassed will be of no avail. One basic respect that a woman should be accorded in her workplace is However she dresses, wherever she goes, yes means yes and no means no. The same had been emphasized in Vishaka's case as well, much to the contrary belief of most men in the world.

The words of Swami Vivekananda that, "Country and Nation which do not respect women have never become great nor will ever be in future." It should be borne in mind by the Indian employers that workplaces are an integral part of the country and it becomes the duty of every employer to make sure that the women employees are in a comfortable and cordial atmosphere in the workplace to ensure peaceful and progressive functioning.

Articles Referred To:
Sexual Harassment at work place, Adv. Gaurav Kumar, LLR 2003 V-I ,p 282
LLR 1999 VOL-I, 128 (ARTICLE BY ALOK BHASIN)

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