Sexual Harassment - Legalnaija

Sexual Harassment in the Work Place | Busayo Adedeji

by Legalnaija | Jul 26, 2017 | Uncategorized

Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or
inappropriate promise of rewards in exchange for sexual favours.In
most modern legal contexts, sexual harassment is illegal.[1]
Although the concept of sexual harassment in the work place is not alien to
Nigeria, there is a dearth of reported cases on the subject. Reasons that might
be attributed to this include:

1. No precise provision in Employment
Relation laws bordering on sexual harassment in the work place;

2. Victims of sexual harassment
not coming out to report the infringement.

The International Labour
Organization (“ILO”) in its publication on Declaration on Fundamental Principles and
Rights at Work[2] defined
sexual harassment as:

“a sex-based
behaviour that is unwelcome and offensive
to its recipient.”

For sexual harassment to exist these two
conditions must be present.

Sexual harassment may take two forms:

1) Quid Pro Quo, when a job benefit – such as
a pay rise, a promotion, or even continued employment – is made conditional on
the victim acceding to demands to engage in some form of sexual behaviour; or;

2) hostile working environment in which the
conduct creates conditions that are intimidating or humiliating for the victim.

Behaviours that qualifies as sexual
harassment include:

PHYSICAL Physical violence, touching, unnecessary proximity.

VERBAL Comments and questions about appearance,
life-style, sexual orientation, offensive phone calls.

NON -VERBAL Whistling, sexually-suggestive gestures,
display of sexual materials.

The effects of Sexual harassment are both
societal and personal. Some common effects include:

·
Psychological suffering including humiliation, reduced motivation, loss
of self-esteem.

·
Victims foregoing career opportunities, leaving employment or committing
suicide;

·
Women’s undermined access to high-status and well-paid jobs,
traditionally male-dominated.

The Way
Forward

·
Legal Framework against Sexual Harassment must be put
in place and clear institutions to enforce the regulations must also be defined
and set up.

·
Efforts must be made to create awareness amongst the
workforce on issues bordering on sexual harassment.

·
Companies should endeavour to have standing sexual
harassment policies that will be known to all employees.

In conclusion, it is
pertinent to state that the sexual harassment phenomenon is one that keeps
spreading like a wild fire leaving is ashes behind and it is high time our
lawmakers step up and pass laws to regulate this menace in the work place.

[1] https://en.wikipedia.org/wiki/Sexual_harassment

[2] http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_fs_96_en.pdf

Busayo Adedeji

Regulatory Compliance & Commercial law
advisor

Busayo advises clients on corporate immigration issues, advising clients on employment and labour law issues, ensuring that clients are in line with regulatory compliance rules, civil litigation etc

Legal protection from workplace sexual harassment | Michael Dugeri

by Legalnaija | Jun 15, 2017 | Uncategorized

There is legal protection from workplace
sexual harassment. Workplace sexual harassment is commonly defined as
unwelcome sexual advances, requests for sexual favours, 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.

Workplace sexual harassment can include a
one-off incident or a series of incidents. Both male and female colleagues can
either be the victim or offender. It is particularly serious when behaviour of
this kind is initiated by any official who is in a position to influence the
career or employment conditions (including hiring, assignment, contract
renewal, performance evaluation, working conditions, or promotion) of the
victim. Sexual harassment may also occur outside the workplace and/or outside
working hours.

The Nigerian Labour Act and the many HR
policies that workers in Nigeria are commonly bound by are silent on the issue
of workplace sexual harassment. This has left many victims of this problem in
doubt as to their legal options. Workplace sexual harassment results in
violation of the fundamental rights of a worker which include dignity of the
human person and personal liberty guaranteed under the 1999 Constitution.

A person’s right to protection against
sexual harassment and the right to work with dignity are universally recognised
human rights by international conventions and instruments. Hence every person
has the right to practice any profession or to carry on any lawful occupation,
trade or business which includes a right to a safe environment free from sexual
harassment.

The National Industrial Court (NIC) amended
its civil procedure rules recently to provide the procedure for claims against
workplace sexual harassment. Order 14 of the National Industrial
Court of Nigeria (Civil Procedure) Rules, 2017provides that an action
in which a worker alleges sexual harassment at the workplace should spell out
whether the sexual harassment is any of the following:

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

b. 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

c. A non-verbal form
of sexual harassment which includes unwelcome gestures, indecent exposures, and
unwelcome display of sexually explicit pictures and objects ; and/or

d. 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.

To be clear, the said Order 14 of the NIC
Rules is not necessarily a codification of the law on workplace sexual
harassment; as this workplace vice has always been actionable before the
courts. However, the new NIC provision is helpful in at least three major ways.
Firstly, it defines what amounts to workplace sexual harassment. Secondly, it
explicitly makes it an actionable claim. Thirdly, it provides a guide on how to
prove it before the court.

For instance, it is common to assume that
only behaviour under paragraph (d) above amounts to workplace sexual
harassment, when in fact there is a lot more to it than that. From Order 14 of
the new NIC Rules therefore, we are now clear that any of the following
qualifies as workplace sexual harassment:

·
asking
for sex in exchange for a benefit or a favour

·
repeatedly
asking for dates, and not taking “no” for an answer

·
strip
search by or in the presence of the opposite sex

·
making
unnecessary physical contact, including unwanted touching

·
using
rude or insulting language or making comments towards women

·
(or
men, depending on the circumstances)

·
calling
people sex-specific derogatory names

·
making
sex-related comments about a person’s physical characteristics or actions

·
posting
or sharing pornography, sexual pictures or cartoons, sexually

·
explicit
graffiti, or other sexual images (including online)

·
making
sexual jokes

A worker who suffers from any of the above
can institute an action at the National Industrial Court for reliefs, which
include monetary compensation, damages and injunction.

Protesting against sexual harassment is
extremely difficult because it most often results in a hostile work
environment, delay in promotion or even loss of job. The daily humiliation is
compounded by the forced repeated encounters with the offender who is often a
person in power in the office. Harm caused by sexual harassment is often
extreme, including humiliation, loss of dignity, psychological (and sometimes
physical) injury, damage to professional reputation and career. Inevitably, the
victims face a choice between their work and their self-esteem. Sometimes, they
face a choice between their jobs and their own safety. While these effects are
not seen instantly, they linger on in the mind of the victim long after the
abuse has taken place. Employees who become less confident overtime are
sometimes the victims of sexual harassment.

While the person who sexually harasses
someone else is liable for their behaviour, employers can also be held
vicariously liable for acts of sexual harassment by their employees or
agents. This would be more so where there is proof that the employer was aware
of the sexual harassment but failed to protect the victim or punish the
offender. In fact, employers that do not take steps to prevent sexual
harassment can face major costs in decreased productivity, low morale,
increased absenteeism, health care costs and potential legal expenses.

Some types of sexual harassment may also be
offences under criminal law and should be reported to the police. These include
behaviours like indecent exposure, stalking, sexual assault and obscene or
threatening communications.

Companies that want to manage their risk
prudently must act before the problem occurs. Employers should adopt a clear
sexual harassment policy, by devoting a section in their employee policy
handbook to sexual harassment that outlines the following:

a. define
sexual harassment;

b. state
in clear terms that it will not be tolerated;

c. set
out a clear procedure for filing sexual harassment complaints;

d.
state
that retaliation against anyone who

e.
complains
about sexual harassment would not be tolerated; and

e. continually
monitor the work place for signs of sexual harassment.

It is better to be safe than sorry.

Michael Dugeri

Corporate Commercial Lawyer at
Austen-Peters & Co.

Ed’s Note – This article was first published here

Sexual Harassment Law in Nigerian Universities

by Legalnaija | Oct 28, 2016 | Uncategorized

The Sexual Harassment in Tertiary Educational Institutions Prohibition Bill,
2016; otherwise known as the Sexual Harassment Act is a welcome development
to the body of law in Nigeria. The Bill comes to rescue students in Nigerian
educational institutions who are victims of sexual harassment from preying
lecturers, teachers and educators who use their position to sexually exploit students.

Many lecturers have failed
students for refusing to yield to sexual demands, others who are also
uncompromising are made to spend extra semesters in the school. The University
administrations have a large portion of the blame as most are seen to be paying
lip-service to fighting sexual harassment in their institutions. Students have
been known to resort to inviting their parents and guardians to plead with such
lecturers in a bid to find personal solutions to the issue.

The Bill defines Sexual
harassment to include –

(a)Sexual intercourse
between an educator and a student where the student is below the age of 18
years or is an imbecile or of generally low mental capacity or physically
challenged.

(b) any unwelcome sexual
attention from an educator who knows or ought reasonably to know that such
attention is unwelcome to the student; or

(c) any unwelcome implicit
or explicit behaviour, suggestions, messages or remarks of a sexual nature that
have effect of offending, intimidating or humiliating the student or a related
person in circumstances which a reasonable person having regard to all the
circumstances would have anticipated that the student or such related person
would be offended, intimidated or humiliated;

(d)any implied or
expressed promise of reward by an educator to a student

or related person for complying with a
sexually oriented request or

demand; or

(e) any implied or
expressed threat of reprisal or actual reprisal from an educator to a student
or related person for refusal to comply with a sexually oriented request or
demand.

A lecturer is said to have
an had sexual intercourse with a student when there is a penetration of a
sexual nature of the vagina or anus or mouth of the student by the penis or
mouth or finger of the educator or any instrument or toy by the educator and
for this purpose, a male student can be sexually harassed by a female educator.

Section 3 of the Bill recognizes
the existence of a relationship of authority, dependency and trust between an
educator and a student in an institution, breach of which is unlawful. A
student who alleges sexual harassment by an educator may commence and maintain
a civil action in Court for breach of this fiduciary duty.

According to Section 4 of
the Bill, an educator shall be guilty of committing an offence of sexual harassment
against a student if he/she –

(1)
has sexual intercourse with a student who is:

(a)less than 18 years of age; or

(b)an imbecile or of generally low mental
capacity; or

(c)blind or deaf or otherwise physically
challenged.

(2)
has sexual intercourse with a student or demands for sex from a student or a
prospective student as a condition to study in aninstitution; or Sexual
Harassment in Tertiary Educational Institutions Prohibition Bill, 2016 by

(3) has sexual intercourse with a student or
demands for sex from a student or a prospective student as a condition to the
giving of a passing grade or the granting of honours and scholarships, or the payment
of stipend, allowance or other benefits, privileges or considerations; or

(4)solicits
sex from or makes sexual advances towards a student when the sexual
solicitation or sexual advances result in an intimidating, hostile or offensive
environment for the student; or

(5)directs
or induces another person to commit any act of sexual harassment under this
Act, or cooperates in the commission of sexual harassment by another person
without which it would not have been committed; or

(6)grabs,
hugs, rubs or strokes or touches or pinches the breasts or hair or lips or hips
or buttocks or any other sensual part of the body of a student; or

(7)displays,
gives or sends by hand or courier or electronic or any other means naked or
sexually explicit pictures or videos or sex related objects to a student; or

(8)whistles
or winks at a student or screams or exclaims or jokes or

makes
sexually complimentary or uncomplimentary remarks about

student’s
physique.

In reporting the offence,
Section 7 of the Bill states that a complaint for the offence of sexual
harassment may be made by a student or by any other person to the Nigerian Police
or to the Attorney- General who shall take necessary measures to commence
criminal proceedings against the educator.

Furthermore, as seen in
Section 8, any person who commits any of the acts specified above is guilty of
an offence and shall, on conviction, be sentenced to imprisonment of up to 5
years but not less than 2 years and there shall be no option of a fine.

An educational institution
can however still take action against such educator or lecturer as nothing shall
preclude an institution from proceeding via the internal administrative
discipline of staffs in related circumstances, provided that:

(a)Where criminal proceedings
under this Act have been commenced and pending in a Court in respect of a
complaint of sexual harassment, no disciplinary body in an institution shall
have the power to commence or to continue disciplinary proceedings in respect
of acts to which this Act relates.

(b)Where internal
disciplinary proceedings have been concluded and appropriate sanctions imposed,
such administrative or disciplinary sanctions shall not be a bar to prosecution
in a court under this Act for acts of sexual harassment.

(c)Where internal
administrative or disciplinary sanctions have been imposed before commencement
of criminal proceedings, a court, in passing sentence, shall have regard to the
sanctions already imposed on the educator.

An educator in the
institution in question or in another institution who victimizes a student in
respect of any complaint under this Act shall be liable to the same criminal
sanctions, disciplinary punishment or damages as the educator whom the student
originally complained against.

One shortfall of the Bill is its restriction to only tertiary institutions, such as public or
private tertiary or post-secondary educational institutions in Nigeria, such as
universities, polytechnics and colleges of education. Thereby, disregarding
students in secondary school institutions and even working environments.

Adedunmade Onibokun, Esq.

Adedunmade is the Principal
Partner of Adedunmade Onibokun & Co., a corporate commercial law firm
located in Lagos, Nigeria. He also publishes the Legalnaija blog, an
online platform dedicated to educating Nigerians on their legal rights and
obligations. He can be reached via dunmadeo@yahoo.com