Sexual Harassment – Employer’s Liability

Published by The Daily Star on 10th May, 2016 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. 

Query
We have heard about the recent incident of sexual harassment by a male teacher of a university.I am suffering from similar incidents in my university and I am aware that some of my friends have suffered even more serious sexual harassment. When I wanted to raise the issue with our head of the department, I rather faced with behaviour as if I am a criminal!I am particularly curious to know if the university authority has any legal responsibility towards stopping such harassment committed by its teachers and officials.
Sadia 
Chittagong 

Response
Thank you for your query. I am really anxious to learn about the activities of some of your male teachers while I am equally disgusted by ‘no-action’ from the university.

I take the opportunity to state that any form of sexual harassment is certainly heinous crime. For example, under section 354 of the Penal Code 1860, a person who assaults any woman intending to outrage her modesty, shall be punishable with maximum two years imprisonment and/or fine. Section 509 of the same Act, covering basically teasingand molesting, provides that a person who, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object or intrudes upon the privacy of the woman, shall be punishable with maximum one year imprisonment and/or fine. Furthermore, Nari-O-ShishuNirjatan Daman (Amendment) Ain 2003 is a special legislation aimed at better protecting women and children, which also contains some provision criminalising several sexual activities. In addition, the laws of Bangladesh also cover situations where sexually harassing activities, such as sexting, sending of obscene SMS, MMS, pictures and videos etc., are done through electronic or telecommunication media. Sections 292 and 294 of the Penal Code, section 70 of the Bangladesh Telecommunication Act 2001, section 4 of the Pornography Control Act 2012, Section 57 of the Information and Communication Technology Act 2006, etc. offer various redresses for such activities.

Unfortunately, there is still no legislation to combat sexual harassment at educational institutions and/or workplaces. However, the pressing need for the same was felt during the 1990s and 2000s, when many female students and female teachers were being sexually harassed by the male teachers and colleagues in a very popular public university near Dhaka. Many such incidents warranted the filing a writ petition in 2008 in the form of public interest litigation. The Hon’ble High Court Division issued directives in the form of guidelines on sexual harassment which are to be compulsorily followed and observed at all workplaces and educational institutions, in both public and private sectors, till adequate and effective legislation is made in this field. Pursuant to this judgment, every organisation is obligated to have a ‘sexual harassment redress policy’ of their own, with a designated complaint committee to address and redress the complaints of sexual harassment. Complaint committee shall impose disciplinary punishment (which may include dismissing the offender) and is also under an obligation to refer the matter to the appropriate court or tribunal in the event that the act complained of constitutes an offence under any law. The university authorities are not only obliged to have a policy and committee rather they are also bound to create sufficient awareness within their institutions in relation to the same. It is matter of regret that very few organisations and educational institutions actually implement so.

You have certainly raised a grave concern as to whether the educational institutions can be held liable for the sexual harassment committed by the teachers. It is understandable that university authority or member of the management cannot be held liable under the criminal provisions for which only the person who harasses will be liable. However, very interestingly there may be vicarious liability on the part of the university under the law of tort. The general rule is that the employer can only be held liable for the tort (civil wrongs) committed by its employees in the course of his/her employment. However, case-law jurisprudence developed by the English legal system suggests that in certain situations where there is sufficiently close nexus between the employment and the acts committed by the employee, the employer shall be vicariously liable even for the crimes committed by the employee.In the recent past, the apex court of Bangladesh has also applied similar principle and awarded huge compensation against the employer. Apart from taking criminal action against the offender, I would highly encourage a victim of sexual harassment to lodge a claim against the university authority for compensation under tort.

Let us hope for a healthier environment in all educational institutions and workplaces.
For detailed query contact: omar@legalcounselbd.com.