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Sexual Harassment – Duty Of Care

LESEGO NSWAHU NCHUNGA
As explored in the previous pieces on this series, sexual harassment is a manifestation of sex discrimination.

In the present article, the duty of care, where it derives and why it falls where it falls, shall be explored.

In many countries with advanced sexual harassment jurisprudence, the duty of care in this regard has been well settled. A duty of care is essentially a responsibility that one has to safeguard and guarantee the security, welfare, comfort and benefit of others.

Once a case has been made, that indeed there has been sexual harassment, the natural next question is who is responsible? Labour law clearly provides that whoever committed the harm is responsible, whether the harassment occurred in an employment action and the employer’s response to the harassment.

In the case of Tidwell v American Oil, the following statement was made, “little if any progress in eradicating discrimination in employment will be made if the corporate employer is able to hide behind the shield of individual employee action.” This was said to advance the position that an employer is and should be held responsible for the actions of their employees. Even if this liability or responsibility is not direct, there lies a vicarious liability.

Employers have a general duty to ensure that their employees are protected from sexual harassment, in the work-place, or which occurs as a result of their employment. Failure on the employer’s part to attend the problem, places the matter in the ambit of discrimination. There is a relationship between sexual harassment and equal employment opportunities. The question of the exact extent of the employer’s conduct in sexual harassment cases is therefore crucially affected by the understanding of what constitutes discrimination. An employer’s liability for employee conduct is considered fair and essential to effective anti-discrimination laws when the challenged conduct is recognised as presenting a real obstacle to equal opportunity. The issue of whether the employee is discriminating against an employee with respect to terms, conditions or privileges of employment or is limiting an employee in a way which would tend to deprive the individual of employment opportunities or is otherwise affecting the individual’s status as an employee is invariably dependent on a question of social status.

What does this have to do with discrimination? Well, at it’s core, sexual harassment in it’s various manifestations as explored in the previous article, is an exercise of power relations in a given society as well as in a society. South African Judge, Judge Savage in the case of Campbell Scientific Africa v Simmers has in fact found that economic power has less to do with it, than a perceived power imbalance between men and women, in the general society. This power imbalance exists, even between colleagues at the same level in a workplace. It is for this reason that the employer has to be held answerable for the conduct of it’s employees, including the ones who cause

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harm. The employer is responsible because they can be said to have ‘helped’ the acts that led to harm, because of the agency relationship.

Case law establishes that when an employer places an employee in a position of trust, the employer has the duty to ensure that the employee is capable of the trust accorded them. If the employee had not, by the employer, been placed in such a position, they would not have had the opportunities, or used them in the ways they did, to harm another. This is a well settled rule in common law. The employer’s duty goes beyond ensuring the physical safety of its employees. The duty extends to ensuring protection from psychological harm.

Why is it important to explore and understand the duty of care? For remedial purposes. It demands an interrogation of who is to pay, and demands in fact, that the employer ought to pay for the actions of it’s employees. The definition of a complainant should not be limited to the harassed only, an onlooker or witness ought to have audience to report an incident and be afforded the same protection as if actually harassed.  If a sexual harassment complainant can establish that there exists a relationship of employment between the harasser and the employer; that the employee acted unlawfully; that the act caused damage to or disturbed the complainant; and that the act was committed within the course and scope of the harasser’s employment, then they can adequately show that there lies a vicarious liability. The final consideration on course and scope of employment can be challenged in deviation cases where an employee acts, not only negligently, but in their own interests. However in numerous cases, where an employee harasses a colleague even where it happens outside of working hours, and beyond what can strictly be considered the course and scope of their employment, the employer has been held liable solely on the basis that the harasser had access to the power they abuse through their position in the employer.

Holding employers vicariously liable incentivises them to accordingly carry out their duty of care over their employees. Sexual harassment cases and incidents can be minimised through implementing comprehensive sexual harassment policy, ensuring that all the employees are aware of the policy, through conducting awareness raising trainings. This will reduce the employer’s risk of vicarious liability significantly.

This article was written in collaboration with Oratile Gaopotlake. Oratile has considerable experience in developing anti-harassment policies. She also has been engaged to review existing internal policies according to client’s brief and international best practice. In recent times she has conducted in-house corporate investigations on sexual harassment reported incidents and presented recommendations accordingly. She has a great interest in the work and endeavours to make work spaces safe and comfortable for all.



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