Sexual Harassment has been unlawful for decades and most cases of sexual harassment at the workplace go unreported. This has been the occurrence until the #Me Too movement which brought to light series of sexual harassment cases in the workplace, tumbling notable persons in various fields in the process.
The EEOC defined sexual harassment in its guidelines as;
“Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or
- submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or ·
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.”
The underlying ingredient of sexual harassment from the foregoing is that the sexual behavior in question is “unwelcome” and lacks consent. Contrary to popular belief, victims of sexual harassment are not limited to women. We have been made to believe the fallacy that since women are basically less threatening, they can’t perpetrate sexual harassment. So, being sexually harassed by a woman is not only laughable but also enjoyable. The truth remains that what makes sexual harassment a crime is not the gender of the perpetrator, nor the physical appearance of the victim but lack of consent.
SEXUAL HARASSMENT PROVISIONS IN THE NIGERIAN LAW
The Nigerian Labour Act has no provisions criminalizing sexual harassment in the workplace. This has left some victims confused as to what legal measures to take to address the issue of sexual harassment in the workplace. The Constitution of the Federal Republic of Nigeria 1999 as amended which is the grundnorm in Nigerian Law on the other hand, guarantees the right to dignity of human persons and right to personal liberty which workplace sexual harassment violates. Also, international conventions and instruments universally recognize a person’s right to work with dignity and be protected from all forms of sexual harassment.
The Criminal Law of Lagos State 2011 has provisions criminalizing sexual harassment making Lagos state the first state in Nigeria to make laws against sexual harassment.
Section 262(1) of the Criminal Law of Lagos States 2011 provides that:
“Any person who sexually harasses another is guilty of a felony and is liable to imprisonment for three years.”
Section 254(C) (1) (g) of the Nigerian Constitution 1999 (as amended in 2010) makes specific provisions granting the National Industrial Court of Nigeria exclusive jurisdiction over causes and matters “relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace.”
Following this constitutional provision, the National Industrial Court of Nigeria (NICN) has awarded damages in deserving cases against perpetrators of workplace sexual harassment. In Pastor (Mrs.) Abimbola Patricia Yakubu V Financial Reporting Council of Nigeria& Anor (Suit No NICN/LA/673/2013; judgement delivered on the 24th November, 2016), the claimant’s case was that she was at various times subjected to continuous sexual and seductive gestures and compliments, promiscuous and obscene talks, demand for sexual favours and indecent marriage proposal from the 2nd defendant while she was in the employment of the 1st defendant. The NICN held that the claimant’s right to human dignity and self-worth was violated by the 2nd defendant and awarded the sum of N5,000,000(Five Million Naira) as damages in favour of the claimant.
Recently, the National Industrial Court (NIC) amended its civil procedure rules to include provisions on workplace sexual harassment. Order 14(1) of the National Industrial Court of Nigeria Civil Procedure Rules 2017 provides that where a claimant alleges sexual harassment in the workplace, it should be indicated if the sexual harassment is;
“a. Physical conduct of a sexual nature: such as unwanted physical contact, ranging from touching to sexual assault and rape, strip search by or in the presence of the opposite sex, gesture that constitutes the alleged sexual harassment ; and/or
- A verbal form of sexual harassment: such as unwelcome innuendoes, suggestions and hints, sexual advances, comments with sexual overtones, sex related jokes or insults, or unwelcome graphic comments about a person’s body, unwelcome and inappropriate enquiries about a person’s sex life and unwelcome whistling at a person or group of persons, any document, material or exhibit in further support of the claim; and/or
- A non-verbal form of sexual harassment which includes unwelcome gestures, indecent exposures, and unwelcome display of sexually explicit pictures and objects ; and/or
- Quid pro quo harassment where an owner, employer, supervisor, member of management or co-employee undertakes or attempts to influence or influences the process of employment, promotion, training, discipline, dismissal, salary increments or other benefits of an employee or job applicant in exchange for sexual favours.”
From the foregoing, sexual harassment is not only made an actionable claim, we are also clear on how to prove it in court and what amounts to workplace sexual harassment. Any worker who is a victim of any of the above actions can institute an action at the National Industrial Court and get remedies including damages, compensation and an injunction.
PREVENTION OF WORKPLACE SEXUAL HARASSMENT
It is the duty of every employer to ensure that sexual harassment doesn’t thrive in the work environment. Employers need to know that they can be held vicariously liable for acts of sexual harassment by their employees and agents especially if such incidences were reported and nothing was done to address the sexual harassment issue or punish the perpetrator. Asides from legal costs, employers that ignore cases of sexual harassment pay the price in low morale, decreased productivity, increased absenteeism and health care costs.
One major step employers can take to prevent sexual harassment in the work place is for them to include a sexual harassment policy in their employee handbook. The sexual harassment policy should;
- State clearly what amounts to sexual harassment.
- Emphasize that it will not be tolerated.
- Set out an easy procedure for making sexual harassment complaints including anonymous complaints.
- Emphasize that workers who make complaints about sexual harassment will be protected from retaliation and victimization.
- Set out the punishment for sexual harassment claims which are found to be true.
Employers should be ready to organize trainings on the signs, control and effects of sexual harassment during induction of new employees and other forms of continuous education to ensure that the employees are constantly aware that sexual harassment is a crime that will not be tolerated in the workplace.
It is also important that employers set up a mechanism to monitor the work environment for signs of sexual harassment so that any slight trace of sexual harassment can be nipped in the bud before it aggravates to sexual molestation.
#METOO AND INTERNAL INVESTIGATIONS
As expected, the #MeToo movement has started influencing the decisions of companies. CEOs and HRs are now being careful and have taken it upon themselves to not only examine their current sexual harassment policies to see if they fit into the new reality but also to reexamine settlement agreements and confidentiality agreements arising from harassment claims that have been deemed settled to ensure that such claims will not rear up their ugly heads later despite the confidentiality clauses. Summarily, internal sexual harassment audit and investigations are now being taken seriously.
The question on the minds of many CEOs however is who to be saddled with the responsibility of conducting these investigations in a way that will ensure fairness to both parties. It could be left in the hands of the Human Resources department but are these people not employees of the company who are obliged to protect the reputation of the company? How un-biased can their findings be?
Certainly, an investigation that will ensure fairness to both parties is more likely achieved when the investigator has no personal connection with either party to the investigation. It is also likely that the parties will see an external investigator as neutral and will be more open with information since they believe that they will be treated fairly. Employers as well will be more inclined to take recommendations from an independent investigator and make necessary changes in their company as opposed to taking recommendations from the employee of the company who might just be telling the employer what he wants to hear.
As a result of this, companies have identified the need to bring in external investigators who have the requisite training, experience and resources to conduct an impartial investigation while maintaining privilege and avoiding the consequences of a flawed investigation. They now bring in Law firms to carry out these investigations.
In the past, any complaint of improper behavior in the workplace would most likely be first lodged at the human resources department. Times have changed. As it is now, as a result of the awareness raised by the #MeToo movement, the public might even be made aware of a harassment issue before the company. In fact, a CEO might just get to know of a sexual harassment claim in the company from the morning news and by then, a lot of havoc could have been done to the company’s reputation and credibility. Companies who intend to survive the #MeToo movement and its aftermath have to be proactive by ensuring that their sexual harassment policies are in tune with today’s reality, they create a work environment that stifles sexual harassment and they carry out proper investigations that are fair and professionally conducted. The time is up!