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

On 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.