Workers’ compensation for sexual harassment?

An academic article, “The Application of the Compensation for Injuries and Diseases Act to Impairment Caused by Sexual Harassment”, was published recently, addressing the question of whether workers’ compensation is payable to someone who has been subjected to sexual harassment. 

The article focuses on two cases – MEC for the Department of Health v Dr N (ZASCA 2014 167) and Churchill v Premier, Mpumalanga (ZASCA 2014 16) – which did not actually involve sexual harassment or claims against the workers’ compensation fund. Nevertheless, these cases provide an opportunity to discuss workers’ compensation claims arising from sexual harassment. 

Workers’ compensation has been in place for over a century, during which time millions of claims have been processed with minimal court intervention. The workers’ compensation system is primarily administrative – designed to deliver compensation quickly and cost-effectively, much like insurance claims.

For a workers’ compensation claim to be paid, the event must fall within the scope of the relevant legislation. If the event does not fit the statutory criteria, there is no valid claim; the remedy would be to approach Parliament to amend the wording of the Act. Courts have occasionally ruled that the law covers an event when it is doubtful that it does, which can lead to lasting problems, as seen in the famous Roe v Wade (USSC 1973) case in the United States. This US Supreme Court case ruled that women have a constitutional right to abortion.

The fundamental issue with this case, highlighted when the judgment was handed down, was that the constitutional right in question could not be found in the actual text of the Constitution. This concerned lawyers at the time and continued to trouble legal scholars for the next 50 years, ultimately leading to the Supreme Court overturning Roe v Wade.

The core problem was that the original decision had established a constitutional right without textual foundation, raising a critical question: if rights can be interpreted into existence, what authority does the Constitution (or any law) truly hold? Advocates of this interpretative approach argued that the Constitution was a living document that should adapt to changing times. However, this perspective essentially allowed the Constitution to mean whatever anyone wanted it to mean. As one lawyer provocatively noted, “The question is not what does the Constitution say, but do we even bother to read it!”

This approach sparked a significant backlash, with Justice Antonin Scalia (1936-2016) emerging as a champion of Original Meaning doctrine, which insisted that legal interpretation must be confined to the actual words of the law.

In the context of sexual harassment, it is clear that the term “sexual harassment” does not appear in the workers’ compensation legislation. Therefore, for a claim to succeed, the factual circumstances, not just the label of “sexual harassment”, must fall within the purview of the Act. Generally, compensation is payable if an employee meets the criteria of (1) an accident resulting in disablement or death, (2) contracting an occupational disease, or (3) an event occurring in the course and scope of employment.

The concept of accidents was the first to be incorporated into workers’ compensation law, with diseases being added to its scope much later. This expansion presented several complexities. Initially, there was uncertainty about how to handle diseases within the compensation framework, leading to an approach that treated them as accidents by legal definition, even though they clearly are not accidents in the conventional sense.

This legal fiction requires careful consideration when dealing with workplace injuries. For example, consider hearing loss caused by prolonged exposure to workplace noise: is this an accident or a disease? In everyday language, it would not be considered an accident, yet it qualifies for compensation as an occupational disease – though strictly speaking, it may not fit the traditional medical definition of disease either. This overlap between accidents and diseases in workers’ compensation law creates the potential for confusion in classification and interpretation.

The two cases mentioned earlier illustrate the complexities involved. In the first case, Dr N was raped in the early hours of the morning while working at a hospital. Consequently, she sued her employer, the province. While this incident could be classified as sexual harassment, it is more accurately characterised as rape. The Department of Health, as the employer, argued that while Dr N was entitled to compensation under the Workers’ Compensation Act, she was precluded from suing the Department for damages under Section 35 of the Compensation for Occupational Injuries and Diseases Act 1993 (COIDA). Dr N contested this interpretation, arguing that Section 35 did not preclude her claims. The court ultimately sided with Dr N, stating in paragraph 32:

“I am unable to see how a rape perpetrated by an outsider on a doctor … on duty at a hospital arises out of the doctor’s employment. I cannot conceive of the risk of rape being incidental to such employment. There is no more egregious invasion of a woman’s physical integrity and indeed of her mental well-being than rape. As a matter of policy alone an action based on rape should not, except in circumstances in which the risk is inherent, and I have difficulty conceiving of such circumstances, be excluded and compensation then be restricted to a claim for compensation in terms of COIDA.”

While the court’s ruling implies that rape is not covered by COIDA, this conclusion is debatable. One could argue that if a female doctor works alone in a quiet hospital at night, the risk of physical injury, including assault, is inherent to the employment conditions that workers’ compensation is designed to cover.

The Churchill v Premier case more closely resembles sexual harassment. Churchill, an employee of the Premier of Mpumalanga, became caught up in protest action organised by a trade union. During this incident, she was assaulted, mistreated, and evicted from the premises in what she described as a humiliating and degrading manner. As a result, she claimed to have suffered psychiatric injury, specifically Post Traumatic Stress Disorder (PTSD). Based on this trauma, she argued she would be unable to work again and sought damages of R7.5 million.

The Premier contended that she was only entitled to compensation under COIDA 130 of 1993, and that section 35 of COIDA prevented her from suing her employer directly. The court concluded: “The incident bore no relation to her duties and was the result of misplaced anger directed at her because of a misunderstanding. She was not assaulted because of the position she held, or because of anything she had done in carrying out her duties, or for any reason related to the protest action that took place that day. She was assaulted because one individual mistakenly thought she had sworn at him and he, together with others, responded by assaulting and humiliating her. In my opinion her injuries did not arise out of her employment.”

This ruling creates an interesting legal contrast. Employers maintain that sexual harassment falls under workers’ compensation, while employees argue it does not. The courts have generally aligned with employees’ position on this matter. Thus, when addressing whether employees who suffer injuries due to sexual harassment can receive workers’ compensation, we find a clear divide: employers assert that they can, while employees – supported by court decisions – maintain they cannot.