Toxic Workplaces and Harassment Liability: Understanding the Impact of Unfair Discrimination


Toxic workplaces and harassment have become critical issues in today’s corporate landscape. It is essential for employers to recognize that harassment is a form of unfair discrimination, as outlined in Section 6 of the Employment Equity Act. This article aims to shed light on the characteristics of harassment, the importance of implementing policies, raising awareness, conducting risk assessments, and taking remedial actions. Failure to do so can lead to vicarious liability for the employer, particularly when it comes to the delictual acts of staff members. Furthermore, in cases where the perpetrator is not a fellow employee, the aggrieved person can seek recourse under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Understanding Harassment:

Harassment is a multifaceted issue that encompasses several detrimental aspects within the workplace. Firstly, it undermines human dignity, causing emotional and psychological harm to the victim. Secondly, it creates a hostile work environment, where individuals feel threatened, intimidated, or uncomfortable due to the actions or behaviour of others. Lastly, harassment often targets individuals based on their race, gender, culture, sexual orientation, language, or birth, exacerbating the discriminatory nature of these acts.

Legal Framework:

The Employment Equity Act in Section 6 explicitly identifies harassment as a form of unfair discrimination. This legal provision highlights the obligation of employers to address and prevent harassment within their organizations. Employers must take proactive measures to create a work environment that respects the dignity and rights of all employees, free from discrimination and harassment.

Employer Liability:

Employers bear a significant responsibility in ensuring the prevention and mitigation of harassment within the workplace. If an employer fails to demonstrate that they have implemented policies, raised awareness, conducted risk assessments, and taken appropriate remedial actions, they can be held vicariously liable for the delictual acts committed by their staff members. This means that employers can be held accountable for the damages caused by the actions of their employees, even if they were not directly involved in the harassment.

Recourse under PEPUDA:

In cases where the perpetrator of harassment is not a fellow employee, the aggrieved person can seek recourse under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). PEPUDA provides a legal framework for individuals to address instances of unfair discrimination, including harassment, that occur outside the employment relationship. This allows victims to pursue legal action against individuals who have violated their rights and seek appropriate remedies.