Taking the Law of Employer Vicarious Liability for Sexual Harassment Seriously: Some Lessons from South Africa
| Author | Justin A. Behravesh |
| Position | Is a Spring 2015 Juris Doctor Candidate at California Western School of Law, and the current Editor in Chief of California Western International Law Journal |
| Pages | 932-967 |
e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2014 e Institute for Migrant Rights Press
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I owe an enormous debt of gratitude to Associate Dean for Research and Faculty
Development and Clara Shortridge Foltz Professor of Law Barbara J. Cox, for her
invaluable detailed feedback through multiple drafts of this article. I would also like
to thank Professor Roberta K. yfault, Vice Dean for Academic Aairs and Professor
William J. Aceves, and Professor Donald J. Smythe for their advice and encouragement
during my writing process. ank you as well to Daniel Hilton for coordinating the
California Western Law Review and International Law Journal student writing program,
and to student editors Christian Barton and Melissa Mack for reviewing and providing
input on earlier drafts of this article. ank you also to my father, Dr. Nariman Behravesh,
for supplying me with labor statistics and explaining them in plain English. I would
additionally like to thank founding editor of e Indonesian Journal of International
& Comparative Law Pranoto Iskandar, for his suggestions in preparing my article for
publication. is article is dedicated in loving memory of my sister Elisha, who passed
away this year.
TAKING THE LAW OF EMPLOYER
VICARIOUS LIABILITY FOR SEXUAL
HARASSMENT SERIOUSLY
SOME LESSONS FROM SOUTH AFRICA
JUSTIN BEHRAVESH
California Western School of Law
E-mail: justin.behravesh@gmail.com
is article provides unique critical analysis of the law of employer vicarious liability
for sexual harassment in the United States, in wake of the United States Supreme
Court’s June 2013 decision of Vance v. Ball State University. e Vance decision
held that vicarious liability for sexual harassment under Title VII is only triggered
when the harassing party has the power to take tangible employment action against
the victim of the harassment. By arguing that the decision in Vance will ultimately
have a devastating eect on working women in the United States, I use comparative
international legal analysis for a proposed solution to the problem created by the
Vance Court. Using South African law as a model framework, I argue that employer
vicarious liability for sexual harassment should be triggered by policy concerns, not
Justin Behravesh
TAKING THE LAW OF EMPLOYER VICARIOUS LIABILITY FOR SEXUAL HARASSMENT SERIOUSLY
933
arbitrary denitions of who is a “supervisor.”
Keywords: Gender Equality, Employment Law, Women’s Rights, Workplace
Discrimination, Civil Rights.
I. INTRODUCTION
During a truck driving training that lead driver Bob Smith was conducting
for truck driver Monika Starke, he told Starke that the truck’s gear stick
was not her husband’s penis, and that she thus did not have to touch
the it so frequently when driving.1 Smith additionally made comments
regarding Starke’s breast size, and even forced her to have unwanted sex
with him on multiple occasions “in order to get a passing grade” in her
driver training.2 Smith, however, lacked the power to promote, reassign,
demote, or re Starke.3 us, under the United States Supreme Court’s
June 2013 decision of Vance v. Ball State University,4 Smith’s employer,
CSRT, could not be held vicariously liable5 for Smith’s actions, as Smith
would not qualify as Starke’s “supervisor.”6
is article discusses why Vance was incorrectly decided, and why
Justice Ginsburg’s dissent in Vance presented a much better-reasoned
conclusion than the majority opinion. is article then proposes an
alternative to Vance, based in part on recent case law developments in
South Africa. South Africa was chosen as a model country for comparison
because when presented with a question similar to that posed to the
1. E.E.O.C. v. CRST Van Expedited, Inc., 679 F.3d 657, 665-66 (8th Cir. 2012).
In a similarly disturbing interaction, Bob Filner allegedly made the comment
“Wouldn’t it be great if you took o your panties and worked without them on?”
to Irene McCormack Jackson, his then Communications Director, just months
into his term as the Mayor of San Diego. Complaint and Demand for Jury Trial,
Jackson v. City of San Diego, 2013 WL 3810141, at ¶¶ 18-19 (Cal. Super. 2013).
2. CRST Van Expedited, Inc., 679 F.3d at 666.
3. Id. at 665.
4. Vance v. Ball State Univ., 133 S. Ct. 2434 (2013).
5. Dened as “[l]iability that a supervisory party (such as an employer) bears for
the actionable conduct of a subordinate or associate (such as an employee) based
on the relationship between the two parties.” B’ L D (9th ed.
2009).
6. Vance, 133 S. Ct. at 2452 (Ginsburg, J., dissenting).
The Indonesian Journal of International & Comparative Law Volume I Issue 4 (2014) at 932–967
Justin Behravesh
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United State Supreme Court in Vance, a South African court held an
employer vicariously liable for sexual harassment by his employee
because of policy considerations, not arbitrary denitions of who is a
“supervisor.”7 My argument is ultimately that for purposes of employer
vicarious liability for sexual harassment, liability should exist when an
employer places an employee in a situation where she is vulnerable to
such harassment. Whether the harassing party has the ability to hire, re,
promote, or demote the harassed employee is completely irrelevant to the
question of vicarious liability.
Section II of this article gives an overview of Title VII, discussing
the hostile work environment cause of action and the dierent types of
employer liability for sexual harassment. Section III addresses the Supreme
Court’s holding in Vance v. Ball State University, and the rationales behind
the majority and dissenting opinions. Section IV discusses the sexual
harassment laws of South Africa as compared with those in the United
States, including statutory provisions and common law developments.
Section V discusses why South African case law presents a better-reasoned
approach than the Vance decision,8 based on the continuing need for
strong protection of working women against sexual harassment. Section
VI concludes the article.
7. See Grobler v. Naspers Bpk & ’n ander 2004 (4) SA 220 at 441 para. E (CHC)
(S. Afr.). e author also had the tremendous privilege of spending two weeks
traveling and surng throughout the beautiful country of South Africa in February
2004.
8. My thesis is not that the implementation of the South African model is perfect.
Rather, my argument is that the laws in South Africa theoretically provide the
means for South African women to have more protection than women in the
United States. Of note, South Africa’s Constitution has been called a “model
of progressive law reform, particularly with respect to gender equality.” Julie
Goldscheid, Gender Violence and Work in the United States and South Africa: e
Parallel Processes of Legal and Cultural Change, 19 A. U. J. G S. P’
L. 921, 944 (2011). However, as one scholar opined, “[i]n theory, South African
law provides victims of sexual harassment with signicant protection. In practice,
however, women still remain extremely vulnerable. Women often nd themselves
subject to severe sexual abuse and even rape.” Mohamed Alli Chicktay, Sexual
Harassment and Employer Liability: A Critical Analysis of the South African Legal
Position, 54 J. A. L. 283, 296 (2008).
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