Employers’ Vicarious Liability on Sexual Harassment in Workplace - Focused on Recent Lower Courts’ Judgements -

The Justice ◽  
2021 ◽  
Vol 186 ◽  
pp. 40-77
Author(s):  
Bora Kim
Keyword(s):  
Sexual Harassment ◽  
Vicarious Liability ◽  
Lower Courts

Sexual Harassment and Employer Liability: A Critical Analysis of the South African Legal Position

2010 ◽  
Vol 54 (2) ◽  
pp. 283-297
Author(s):  
Mohamed Alli Chicktay
Keyword(s):  
Sexual Harassment ◽  
South African ◽  
Working Environment ◽  
The South ◽  
South Africans ◽  
Vicarious Liability ◽  
Unfair Dismissal ◽  
Employer Liability ◽  
Legal Position ◽  
Safe Working

AbstractOn 27 April 1994 South Africans adopted a new constitution, with founding values of dignity, equality and freedom. Despite the new constitution, the majority of women remain victims within the workplace. They still find themselves a minority within senior management and are often subjected to sexual harassment. Women are either denied work opportunities for refusing to give in to a perpetrator's sexual advances or they are forced to work in an unpleasant environment that severely infringes on their dignity. There are five legal options available to victims of sexual harassment within the South African workplace. These are claims against the employer for: vicarious liability; automatically unfair dismissal; unfair labour practices; failing to create a safe working environment; and violating the Employment Equity Act. This article examines the strengths and weaknesses of these legal actions. It also makes further suggestions aimed at curbing workplace sexual harassment within South Africa.

Sexual Harassment in the Workplace in South Africa: The Unlimited Vicarious Liability of Employers?

2008 ◽  
Vol 52 (2) ◽  
pp. 245-267
Author(s):  
Constantine Ntsanyu Nana
Keyword(s):  
Sexual Harassment ◽  
South African ◽  
Strict Liability ◽  
Third Party ◽  
Constitutional Court ◽  
Current Position ◽  
Vicarious Liability ◽  
The United Kingdom ◽  
Intentional Acts ◽  
Court Of Appeal

AbstractThe South African Supreme Court of Appeal and Constitutional Court have ruled that the employer is vicariously liable for sexual violence perpetrated by his employee on a co-employee or on a third party in the workplace or in what can be considered as an extension of the workplace. This is similar to the current position in the United Kingdom. This article questions the rationale of holding employers vicariously liable for intentional acts of employees such as sexual harassment. In a bid to justify their position, these courts have adopted a sort of vicarious liability with no outer limit that is both needless and tortuous. This article submits that the law imposes a duty on employers to protect their employees and that this unwarranted development of vicarious liability could be avoided if due regard is given to the prescribed direct (and strict) liability of the employer.

Revisiting vicarious liability in sexual harassment cases heard under the Sex Discrimination Act

2019 ◽  
Vol 45 (1) ◽  
pp. 38-44
Author(s):  
Patricia Easteal ◽  
Skye Saunders
Keyword(s):  
Sexual Harassment ◽  
Sex Discrimination ◽  
Federal Court ◽  
Judicial Interpretation ◽  
Vicarious Liability ◽  
Recent Trends ◽  
Take All

This article considers recent trends in the judicial interpretation of workplace vicarious liability provisions with respect to sexual harassment matters under the Sex Discrimination Act 1984 (Cth) ( SDA). In a study undertaken by the authors in 2008, we found that the Federal Court and Federal Magistrates Court appeared to be taking a ‘broad-brush’ approach in interpreting employers’ duty to take ‘all reasonable steps’ to prevent sexual harassment and defining ‘in connection with employment’. The authors update that analysis and evaluate a sample of cases from 2011 to 2018, concluding that it is possible the Courts are approaching these legislative elements of vicarious liability with an increasingly narrow brush.

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