Sexual Harassment & Employer Liability

Section 60 of the Employment Equity Act may not be all that well-known. But it should be. It can have severe consequences on any employer that fails to take sexual harassment complaints seriously. Section 60 effectively provides that when an employer becomes aware of a sexual harassment allegation, the employer must consult with all relevant parties and take “necessary steps” to eliminate the perpetrator’s conduct. The employer’s failure to do so may render it liable to pay rather hefty damages to the complainant.

But under what circumstances can an employer be liable to the complainant? Given the magnitude of Section 60, it seems only fair that there are limitations on the provisions. And indeed, these limitations are set out in a 2009 case*, where the Labour Appeal Court listed the requirements before an employer can be held liable. The requirements are as follows:

• The employer must be aware of the incident. Clearly, the employer cannot be held accountable for something that it has no knowledge about.
• The sexual harassment must have been committed by another employee. If the perpetrator is a customer, supplier or business associate then section 60 will not apply.
• The sexual harassment must constitute unfair discrimination, thereby bringing it under the Employment Equity Act.
• The sexual harassment must have taken place at the workplace. As opposed to the local bar on a Saturday night during a private social outing, for example.
• The sexual harassment incident must be brought to the employer’s attention as soon as possible. So, it’s not a good idea to wait for months and then suddenly blurt out an accusation in the middle of a performance appraisal.
• The employer must have failed to consult all relevant parties, or take the requisite action to put a stop to the perpetrator’s conduct. The employer should know that continually shoving the complaint to the bottom of the in-tray will not make the issue go away – and may well compound the problem for the company.
• The employer must have failed to take all reasonable and practicable measures to ensure that its employees do not contravene the Employment Equity Act. Possible measures include the implementation of employee policies, and conducting employee training.

Employers who are serious about mitigating their risks against section 60 should ensure that their Sexual Harassment Policies are in place. Additionally, the mere existence of the policy is not enough. When faced with sexual harassment complaints the employer is obliged to take action to resolve the complaint. Or face the wrath of the court armed with section 60 of the Employment Equity Act.

* Potgieter v National Commissioner of the SA Police Service

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.