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So. Africa: Employers have a legal obligation on employers to actively act against sexual harassment

Author: Sheena Swemmer, New Frame, Published on: 6 November 2019

‘Employers are liable for sexual harassment’

If a workplace does not ensure it is a safe environment by taking direct action against perpetrators, it can be held accountable for the actions of its employees. n 30 October 2019, the Centre for Applied Legal Studies (CALS) represented a woman in suing state-owned Transnet in the Johannesburg Labour Court for failing to protect her from sexual harassment in the workplace, failing to take adequate steps to deal with the reported sexual harassment once becoming aware of it and being vicariously liable (where an employer is liable on behalf of their employee’s actions) for the incidents of sexual harassment committed by a senior staff member of the company against her.

…With such a high occurrence of sexual harassment in the workplace, it is not surprising that our courts have acknowledged a legal obligation that all employers have to ensure their workplaces are safe and discrimination free. Employers who fail to take steps to eradicate sexual harassment can be held liable for the harassment. In the case Liberty Group Limited v Margaret Masango, the Labour Appeal Court held that employers have an obligation to take immediate and necessary steps to eliminate sexual harassment once it has been reported to them.

Failure to take these steps to eliminate sexual harassment once it has been reported can result in the employer being liable for the sexual harassment committed by one of their employees. This case implicitly places a legal obligation on employers to actively act against sexual harassment in the workplace. When employers fail to do so, they are not only civilly liable for this failure but also ultimately form part of a culture of sexual discrimination that allows such harassment to flourish. If we look at employers enabling sexual harassment through a culture of sexual discrimination and impunity, then we need to start considering workplaces as partly factually guilty of sexual harassment. 

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