The article analyses two recent judgments dealing with the issue of sexual harassment in the workplace. In these cases (heard in the Cape HIgh Court and the Supreme Court of Appeal) a woman successfully sued her employer for not taking adequate action to prevent sexual harassment from taking place.
The author welcomes the judgments but points out that they have left many issues in relation to sexual harassment unresolved. These include: does a victim of sexual harassment only qualify for legal protection once a condition as severe as Post-Traumatic Stress Syndrome (PTSS) manifests? If PTSS is the result of an incident arising out of and in the course of the victim's employment, would sections 35 and 65 of the Compensation for Occupational Injuries and Diseases Act apply? What reasonable steps should an employer take to meet its common law duty to provide a safe working environment free from sexual harassment? Can the employer still be vicariously liable even though it has met this common law duty? What is the appropriate test to determine the employer's vicarious liability for sexual harassment? The author sets out to suggest answers to these and other questions.