Tort Damages Through the Lens of Feminism-the Example of Sexual Harassment in Workplace

Torts Law, as an important way to address personal damages, has always been an objective and neutral doctrine irrelevant to gender discrimination, bias and equality. However, injuries are often connected with the identity and the social position of the victim. In this article, I use feminist legal studies to analyze the regulation regarding the claims of damage awards of sexual harassment in workplace, and the gender bias hidden in the verdicts of torts law. Moreover, I discuss whether the Act of Gender Equality in Employment could change the Perception of sexual harassment in workplace. Since the 1970s, feminists have studied torts law through a critical perspective by focusing on the context and the specific social background in each case. For instance, Martha Chamallas indicated that torts claims are not gender neutral, certain claims are usually raised by female victims. Hence, we have to understand the power dynamic between social groups to discuss the meaning of those claims and the gender issues behind the theory and the practice. First, we usually calculate the damage awards base on gender-specific economic data to predict the future earning capacity of plaintiff, which reflects and reinforces the disadvantages women have suffered in the labor market. Second, while the concept of harm and loss in torts law seems gender neutral on its face, it links emotional and relational harm, non-economic loss to women, and these harms are considered less substantial, causing disadvantages to female plaintiffs. One good example is sexual harassment claims in workplace. Before the era of Civil Rights Act of 1964, the victim of sexual harassment in workplace often use torts law to seek recovery. However, some feminists question the doctrines and theory of torts law, arguing that torts law has over- personalized harassments, and inclined to rely on morality to reach judgments. Given these shortcomings, after the Supreme Court recognized that sexual harassment in workplace is a civil rights law violation, Chamallas suggests that, by migrating the principles of civil rights act to torts law claims of sexual harassment in workplace, it may transform torts law into civil rights enforcement mechanism, and could provide fuller protections to victims of workplace sexual harassment. I find that, in Taiwan, the development of laws governing workplace sexual harassment is similar to that in the U.S. Before the enactment of the Act of Gender Equality in Employment, we often regarded workplace sexual harassment as a violation of individual rights, and therefore should be resolved by torts in Civil Code. However, the courts’ verdicts of damage awards in such cases over-personalized the injuries and ignored the importance of social identity in these cases. Further, verdicts after the enactment still have had the same problems such as the ambiguous standard of recognizing sexual harassment, the perception of sexual harassment as a violation of women’s chastity, the denial of recovering economic loss except medical expense, and the impression of sexual harassment as a pure moral wrong. I argue that courts should adopt the concept of gender equality in damage awards cases to ensure that every employee can enjoy the right to work without discrimination. Through the gender biases in these damage awards cases, courts can embody the gender equality spirit of the Act of Gender Equality in Employment.