Legal protection from workplace sexual harassment | Michael Dugeri
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:
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 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
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.
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.
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.
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.
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:
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
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
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
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.
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.
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:
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
asking
for sex in exchange for a benefit or a favour
·
repeatedly
asking for dates, and not taking “no” for an answer
repeatedly
asking for dates, and not taking “no” for an answer
·
strip
search by or in the presence of the opposite sex
strip
search by or in the presence of the opposite sex
·
making
unnecessary physical contact, including unwanted touching
making
unnecessary physical contact, including unwanted touching
·
using
rude or insulting language or making comments towards women
using
rude or insulting language or making comments towards women
·
(or
men, depending on the circumstances)
(or
men, depending on the circumstances)
·
calling
people sex-specific derogatory names
calling
people sex-specific derogatory names
·
making
sex-related comments about a person’s physical characteristics or actions
making
sex-related comments about a person’s physical characteristics or actions
·
posting
or sharing pornography, sexual pictures or cartoons, sexually
posting
or sharing pornography, sexual pictures or cartoons, sexually
·
explicit
graffiti, or other sexual images (including online)
explicit
graffiti, or other sexual images (including online)
·
making
sexual jokes
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.
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.
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.
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.
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:
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;
sexual harassment;
b. state
in clear terms that it will not be tolerated;
in clear terms that it will not be tolerated;
c. set
out a clear procedure for filing sexual harassment complaints;
out a clear procedure for filing sexual harassment complaints;
d.
state
that retaliation against anyone who
state
that retaliation against anyone who
e.
complains
about sexual harassment would not be tolerated; and
complains
about sexual harassment would not be tolerated; and
e. continually
monitor the work place for signs of sexual harassment.
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.
Austen-Peters & Co.
Ed’s Note – This article was first published here