“Vicarious†Liability of The Employer In Sexual Harassment Cases: A Comparative Study


  • Dr DM Smit Senior Lecturer: Mercantile Law Senior Lektor: Handelsreg Faculty / Fakulteit: Law / Regsgeleerdheid PO Box / Posbus 339, Bloemfontein 9300, Republic of South Africa / Republiek van Suid-Afrika
  • Mr D J Viviers




sexual harassment, vicarious liability, damages, delict, workplace, labour law.


In recent years, sexual harassment in the workplace has drastically increased worldwide, including in South Africa. Consequently, the country’s courts have looked to protect employees by attaching obligations to employers that could render them liable when their employees are sexually harassed in the workplace. The Employment Equity Act and the Code of Good Practice on the Handling of Sexual Harassment Cases in the Workplace have also introduced measures in terms of which an employer may be held liable once certain requirements have been met. However, when compared to other jurisdictions such as the United States of America, Australia and Ontario, Canada, where the legal position on sexual harassment in the workplace and employers’ vicarious liability seems clear-cut and effective, the South African measures seem to lack teeth. Various loopholes, poor awareness and training as well as lacking implementation mean that employees who are sexually harassed in employment may find themselves unprotected and unable to hold their employer vicariously liable. In an attempt to contribute to the development of South African law in this regard, this article firstly provides an overview of the current position in South Africa, followed by a comparative overview of the law in the USA, Australia and Ontario, Canada. It is concluded that South Africa stands to learn valuable lessons from these jurisdictions’ approach to sexual harassment in employment. The most significant of these include the proposed establishment of a body similar to the USA’s Equal Employment Opportunity Commission or the Australian Human Rights Commission, which can be tasked specifically to deal with employment issues, including protecting employees against harassment, and enforcing and raising awareness about employer liability; making the drafting of internal policies on sexual harassment in employment compulsory and subject to inspection, and instituting compulsory training for managers to prevent and deal with sexual harassment in the workplace.


American Law Institute Restatement of the Law

American Law Institute Restatement of the Law Second: Agency 2d vol 1 (United States 1958)

Atiyah Vicarious Liability

Atiyah P Vicarious Liability in the Law of Torts (Butterworths London 1967)

Botha and Millard 2012 De Jure

Botha MM and Millard D “The past, present and future of vicarious liability in South Africa†2012 De Jure 225-253

Calitz 2005 TSAR

Calitz K “Vicarious liability of employers: reconsidering risk as the basis of liability†2005 TSAR 215-235

Calitz 2009 Stell LR

Calitz KB “The liability of employers for the harassment of employees by non- employees†2009 Stell LR 407-425

Chicktay 2010 JAL

Chicktay MA “Sexual Harassment and Employer Liability: A Critical Analysis of the South African Legal Position†2010 Journal of African Law 283–297

Dancaster 1991 ILJ

Dancaster L “Sexual harassment in the workplace: Should South Africa adopt the American approach?†1991 ILJ 449-464

Duffy and Middlemiss 2002 CLWR

Duffy A and Middlemiss S “Comparative analysis of the vicarious liability of the employers in harassment cases in the United Kingdom and the United States†2002 CLWR 254-285

Du Plessis and Fouche Practical Guide

Du Plessis JV and Fouche MA Practical Guide to Labour Law 7th ed (Lexis Nexis Durban 2012)

Du Toit and Potgieter Unfair Discrimination

Du Toit D and Potgieter M Unfair Discrimination in the Workplace (Juta & Co. Claremont 2014)

Gearty 2009 Suffolk U.L. Rev

Gearty LP “Scope of Faragher-Ellerth Affirmative Defense to Vicarious Liability Not Defined by Employer’s Own Sexual-Harassment Policy – Chaloult v. Interstate Brands Corp., 540 F.3d 64 (1st Cir. 2008)†2009 Suffolk U.L. Review 399-407

Grogan Workplace Law

Grogan J Workplace Law 11th ed (Juta & Co. Claremont 2014)

Gule 2005 JBL

Gule S “Employer’s vicarious liability for sexual harassment.†2005 JBL 66-69

Hoel and Einarsen 2010 Eur. J. Work Organ. Psy.

Hoel H and Einarsen S “Shortcomings of anti-bullying regulations: the case of Sweden†2010 Eur. J. Work. Organ. Psy. 30-50.

Joubert, Van Wyk and Rothmann 2011 SAJHRM

Joubert P, Van Wyk C and Rothmann S “The effectiveness of sexual harassment policies and procedures at higher education institutions†2011 SAJHRM 310-320

Le Roux 2006 Obiter

Le Roux R “Section 60 of the Employment Equity Act 1998: Will a Comparative Approach Shake this Joker Out of the Pack?†2006 Obiter 411-428.

Le Roux, Rycroft and Orleyn Harassment

Le Roux R, Rycroft A and Orleyn T Harassment in the Workplace: Law Policies and Processes (Lexis Nexis Durban 2010)

Lindstrom 2010 HWLJ

Lindstrom EJ “All Carrots and No Sticks: Moving Beyond the Misapplication of Burlington Industries, Inc. v. Ellerth†2010 HWLJ 111-136

McCarter 2009 J Mo Bar

McCarter WD “Sexual Harassment of Employee By a Company Supervisor Warranted Punitive Damages Against the company†2009 J Mo Bar 8-9

Mukheibir and Ristow 2006 Obiter

Mukheibir A and Ristow L “An Overview of Sexual Harassment: Liability of the Employer†2006 Obiter 245-262

Neyers 2005 Alta. Law Rev.

Neyers JW “A Theory of Vicarious Liability†2005 Alta. Law Rev 1-41

Neethling 2011 TSAR

Neethling J “Vicarious liability of the State for rape by a police official: regspraak†2011 TSAR 186-191

Neethling, Potgieter and Visser Law of delict

Neethling J, Potgieter JM and Visser PJ Law of delict 6th ed (Lexis Nexis Durban 2010)

Scott 1999 S. Ill. U. L. J.

Scott A “Employers beware! The United States Supreme Court opens the floodgates on employer liability under Title VII†1999 S. Ill. U. L. J. 157-179

Snyman-Van Deventer and De Bruin 2002 Acta Academica

Snyman-Van Deventer E and De Bruin J “Sexual harassment in South African and American law†2002 Acta Academica: Gender, Society and Theory Supplement 196-221

Sorensen 2010

Sorensen PT “A fresh look at employer liability for sexual harassment†2010 T.M. Cooley L Rev 510-539