Sexual harassment in South African and American law

Sexual harassment in the workplace is a grave problem and a significant obstacle to access to many sectors of the labour market. The number of sexual harassment complaints increases dramatically every year, although researchers estimate that 80 to 90% of such cases go unreported. Despite the high figures, few South African court cases and little of the legal literature deals with sexual harassment. The reason for this is that few victims of harassment report it for fear of losing their jobs or being ridiculed. Sexual harassment is an infringement upon a person’s personality and thus an iniurandi. Negligence never suffices to prove liability. The South African Constitution determines that no-one shall be discriminated against and this provision includes a person’s right to work without harassment or discrimination. It is therefore essential that all employers ensure all employees of a safe environment without discrimination. Employers must adopt a policy on sexual harassment, communicate it to all employees and ensure that it is adhered to. If harassment does take place, the procedure and disciplinary process prescribed in the policy must be enforced.