Employers' Liability for Discrimination by a Customer

It is now well-established that employers may be held liable, under certain circumstances, for discriminatory conduct committed by their employees. An issue that sometimes arises, however, is whether employers may also be held liable for discrimination committed by their customers against their employees. 

The issue arose in the Labour Appeal Court judgment in Samka v Shoprite Checkers (Pty) Ltd and Others (2020) 41 ILJ 1945 (LAC).

The case involved a cashier at Shoprite who was subjected to racist remarks by a customer. 

The cashier launched a claim against Shoprite, and attempted to hold the employer liable for the customer's discriminatory remarks in terms of section 60 of the Employment Equity Act (EEA).

That section states the following:

"(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to provide that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act."

The main issue in the matter pertained to whether this section only renders an employer liable for discriminatory conduct by its employees, or whether it goes further and provides for an employer's liability for discrimination by a customer.

The Labour Appeal Court found that it does not go further and render an employer liable for a customer's discriminatory conduct. 

The court explained this as follows:

"[13] This approach follows the express wording of the section. The applicability of s 60 is expressly confined to an employee as defined in s1 of the EEA. It is to upon this section that appellant must base a viable cause of action. There is, however, no plausible basis to engage in interpretive moves to extend the scope of this provision which is clearly and unambiguously confined to specific relationships between employers and employees.

[14] That s 60 of the EEA applies exclusively to employees makes manifest good sense in that an employer exercises authority over an employee but none over a customer. An employer has no control over how a member of the public might behave in entering a store such as that own by the first respondent. It is difficult to see how such a cause of action could be implemented, that is to hold an employer liable to its employee for the action of a customer which is directed at the employee."

Although the judgment identifies the limits of an employer's liability for discrimination claims under section 60 of the EEA, it is worth noting that employers have an obligation under the health and safety statutes to take reasonable measures to maintain a healthy and safe working environment. This includes managing health and safety risks that may arise from customers/clients, and may include risks to their mental and psychological health, including from abusive customers. Employers' policies should therefore be geared to ensuring compliance in this regard.