Sexual Harassment in the work place, why must the boss be reactive and vigilant?

sexual harrassment Sexual harassment is no laughing matter and can be devastating to the victims while being disruptive to the workplace and productivity. Sexual harassment is an infringement of a person’s constitutional right to dignity, freedom and security and privacy of a person.

It, therefore, makes sense that when an employee is a victim of sexual harassment, the employer must take every precaution there is to prevent it in the future. In this particular article we will focus on employee sexual harassment and the duty of the employer.

It stands without saying that any form of sexual harassment, whether in the workplace or otherwise, is illegal. However, when sexual harassment occurs in the workplace the first port of call to an employee who is a victim is to report the conduct of the accused employee to the employer.

Section 60 of the Employment Equity Act 55 of 1998 (EEA) deals with this matter specifically. The purpose of the EEA is to promote equal opportunities and fair treatment in the workplace. It, therefore, means that sexual harassment directly contravenes the purpose of this Act.  Section 60 provides as follows:

  1. Alleged conduct must be brought to the attention of the employer,
  2. Employer must consult all the relevant parties to eliminate the alleged conduct,
  3. Where the employer fails to do the above then the employer is also deemed to have contravened the provision,
  4. Where the employer can prove that he/she did all that reasonably practical to end the conduct, then he/she will not be liable.

While section 60 is applicable, the courts can also apply the common law whereby the employer is held vicariously liable. This means that where the employer fails to reasonably apply his/herself in the above manner they too may be brought into the action and sued together with the employee who is accused of sexual harassment.

Because sexual harassment can be considered a delict, once all the requirements of a delict are proven, compensation in the form of patrimonial and non-patrimonial loss may be claimed. Additionally, the employee may hold the employer vicariously liable and such compensation may be claimed from the employer too.

The principle behind this application is that where the employer fails to act and take reasonable steps to end the case of sexual harassment, it is as if the employer is allowing it to happen and should therefore also be held liable.

For more information on sexual harassment in the workplace, contact Du Toit’s Attorneys on 012 742 0100 or 012 643 1882. Alternatively, you can send an email to johan@dutoitsattorneys.co.za or hanja@dutoitsattorneys.co.za