“Vicarious” Liability of the Employer in Sexual Harassment Cases: A Comparative Study

In recent years, sexual harassment in the workplace has drastically increased worldwide, including in South Africa. Consequently, the country’s courts have looked to protect employees by attaching obligations to employers that could render them liable when their employees are sexually harassed in the workplace. The Employment Equity Act and the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace have also introduced measures in terms of which an employer may be held liable once certain requirements have been met. However, when compared to other jurisdictions such as the United States of America, Australia and Ontario, Canada, where the legal position on sexual harassment in the workplace and employers’ vicarious liability seems clear-cut and effective, the South African measures seem to lack teeth. Various loopholes, poor awareness and training as well as lacking implementation mean that employees who are sexually harassed in employment may find themselves unprotected and unable to hold their employer vicariously liable. In an attempt to contribute to the development of South African law in this regard, this article firstly provides an overview of the current position in South Africa, followed by a comparative overview of the law in the USA, Australia and Ontario, Canada. It is concluded that South Africa stands to learn valuable lessons from these jurisdictions’ approach to sexual harassment in employment. The most significant of these include the proposed establishment of a body similar to the USA’s Equal Employment Opportunity Commission or the Australian Human Rights Commission, which can be tasked specifically to deal with employment issues, including protecting employees against harassment, and enforcing and raising awareness about employer liability; making the drafting of internal policies on sexual harassment in employment compulsory and subject to inspection, and instituting compulsory training for managers to prevent and deal with sexual harassment in the workplace.