Workplace sexual harassment targeted women often do not come with gun blazing, rather they often happen secretly, leaving the women-victims to suffer in silence. It is possible many women-victims are not able to pin-point early stages of workplace sexual harassment. It is also common to find women who believe they have no legal rights in Nigeria against sexual offenders. This chapter gives an overview on workplace sexual harassment. It highlights the various forms of workplace sexual harassment and the legal context of sexual harassment in the workplace.
There is really no single design of workplace sexual harassment, however, an attempt is made below, to highlight the key characteristics of sexual harassment to enable victims and their families seek early support and remedies. Reliance is placed on the definition of the sexual harassment in the VAPP Act.
The following features/elements make up sexual harassment:
1.Unwanted conduct.
Another word for “unwanted” is undesirable or unwelcomed. A desire to engage in sexual activities with a person should never be unclear and based on assumptions. Although, a woman has the right to accept or reject a sexual offer/advance, where a sexual offer is inappropriate, it is offensive and unlawful. Hence, a man making sexual offers must ensure that his offers are wanted and condoned. Unwanted conducts may include, gestures, touches, words, emails, calls, gifts, and remarks, as well as any act or omission that is suggestive of sex. Sexual consent is always clearly communicated — there should be no question or mystery. Silence is not consent. For more information on the subject of consent visit this link.
2.Conduct of sexual nature or based on sex/gender.
What this means is that the unwanted conduct may have a sexual undertone and intention. It covers gestures, words and actions that are erotic, suggestive of sex and sexual affairs. The action may not be sexual in nature but may rather be based on sex, linked to sex or attributable to female gender. Therefore, gestures like handshakes, hugs etc. cannot be tagged as sexual harassment.
3.Persistent, humiliating or intimidating Conduct:
Sexual harassment can be established where an unwanted sexual conduct or conduct based on sex is persistent, continuous, and not a mere accident. Here, the major ingredient sought to establish here, is the criminal intention to sexually harass a woman. The persistency is enough to proof that an offender is deliberate, calculated and planned to sexually harass. The persistent sexual conduct or conduct based on sex/gender may also humiliating and intimidating and not rather exalting and harmless. It often leaves the victim demoralized, intimidated, dehumanized, worthless, afraid, uncomfortable, or pressurized. It also makes the workplace unfriendly, uncomfortable, unsafe, hostile, frustrating, and freighting.
Stella Ayam Odey v. Ferdinand Daapah & Cuso International.
Here, the Claimant was subjected to sexual harassment from a week after her employment to a period of 6 months thereafter. The harassment included statements by the 1st respondent about her voice, slapping her buttocks and embracing her against her consent. When the claimant’s wedding invitation was given to the 1st defendant, he demanded the Claimant resign but she refused. Consequently, her employment was terminated. The court awarded N16,862,511.00 as damages. (Source, Ifeoma, Peter “Employers’ Liability for Failure to Investigate Sexual Harassment in Nigeria – Elvis Asia”)
4.The conduct may take any form.
Women in workplace may often receive uncomfortable remarks about their body parts and shapes, this could be suggestive of sex and may pressurize the victims. Such unpalatable words could be sent via social media, said over telephone conversation, or even sent as a picture or meme. The forms of sexual harassment in a workplace is endless, as new channels of communication are discovered, sexual harassment jumps on them too. So, sexual harassment conduct may be physical, verbal, or non-verbal. For a better understanding of this concepts an example will be given below based on a real-life case of workplace sexual harassment.
The case of Mrs Ejike Maduka v Microsoft Nig LTD
In this case that was decided by the National Industrial court in Nigeria, Mrs Ejike Maduka was a victim of workplace sexual harassment and had brought the matter to court. According to her, her job was terminated after she refused to give in to the sexual advances from her boss Mr Onyeje, who was the CEO of the company. She had repeatedly warned him to stop physically fondling her body and that of other staff, but he failed to desist and instead terminated her employment as a result of her refusal. The court found all these allegations to be true and decided the case in her favour whilst awarding her the sum of thirteen point two million Naira.
(Source: Ejike Maduka v Microsoft Unreported Suit NICN/LA/492/2012, 19 December 2013)
Without attempting to build a comprehensive list, below are few examples of acts and conducts that could be workplace sexual harassment.
For more information on this, see this UN document
Any human being can be a victim of sexual harassment in a workplace. However, research has shown that more women are victims of workplace sexual harassment while more men are the offenders. This is a violation of fundamental human rights of the victim and as will be shown below, there are several available legal remedies.
According to the Equal Employment Opportunity Commission (EEOC), there are two types of sexual harassment claims: quid pro quo and hostile work environment.
1 Quid Pro Quo: “Quid Pro Quo” means “this for that.” In this context, it involves expressed or implied demands for sexual favours in exchange for some benefit (e.g., a promotion, pay increase) or to avoid some detriment (e.g., termination, demotion) in the workplace.
2 Hostile work environment: Hostile work environment harassment arises when speech or conduct is so severe and pervasive it that creates an intimidating or demeaning environment or situation that negatively affects a person’s job performance.
(Source:here )
Sexual harassment is both a civil wrong and a criminal offence in Nigeria.
Criminal laws:
The various criminal laws in states across Nigeria have dedicated chapters on sexual offences, with many covering matters of sexual harassment with relevant punishments.
The Penal Code (criminal law operational in Northern part of Nigeria) as well as the Criminal Code (criminal law operational in the Southern part of Nigeria) do criminalize sexual harassment with serious punishments. Also, the Criminal Law of Lagos State has provisions criminalizing sexual harassment and punishes offenders with 3 years’ imprisonment.
Example, the Criminal Code
Section 360: Any person who unlawfully and indecently assaults a woman or girl is guilty of a misdemeanour, and is liable to imprisonment for two years.
Furthermore, many states across Nigeria, including the Federal Capital Territory, Abuja, have sexual and gender-based violence laws. The sexual and gender-based violence laws specially criminalize sexual harassment. The Violence Against Persons Act (operational in Federal Capita Territory, Abuja), the Protection Against Domestic Violence Law (operational in Lagos State), the Ekiti State Gender Based Violence (Prohibition) Law and similar laws in other states in Nigeria, all criminalize sexual harassment.
Human rights claims in civil courts:
Fundamental human rights are listed and enshrined in the Constitution of Nigeria. Among the fundamental human rights are; the rights to dignity of human persons, Right to Personal Liberty, Right to Private and Family Life and Right to Freedom from Discrimination, among others. Workplace sexual harassment often infringe on the fundamental human rights of victims. This means that in most matters of sexual harassment there is a violation of fundamental human rights and as such victims can approach a High Court or Federal High Court or the National Industrial Court to enforce their fundamental human rights. This is part of remedies under civil courts.
Other civil legal remedies:
Aside enforcement of fundamental human rights, matters of sexual harassment give rise to several other civil legal remedies under law of tort. Law of tort covers civil wrongs, like assault, battery, trespass to person, trespass to property, defamation, and enticement (seduction), All these are actionable issues that can arise from or be related to sexual harassment. Hence, a victim of sexual harassment can approach a court (Magistrate Court or High Court) seeking for monetary compensation for an action under tort resulting from sexual harassment.
Example Pastor (Mrs.) Abimbola Patricia Yakubu V Financial Reporting Council of Nigeria & Anor. Unreported Suit No NICN/LA/673/2013
“The claimant was subjected to seductive advances, obscene talk, incessant local trips, sensuous compliments, & gestures, even during pregnancy, by the 2nd defendant. The claimant’s refusal to succumb earned her a punitive transfer, and eventually, termination of her employment. The Court resolved the matter in favour of the claimant, directing that she be posted to any other appropriate office relevant to her field of study in Lagos, but not as a Personal Secretary to the 2nd defendant. The sum of N 5,000,000.00 (Five Million Naira only) was also awarded against the 2nd Defendant.” (Source, Peter Ifeoma, “Employers’ Liability for Failure to Investigate Sexual Harassment in Nigeria – Elvis Asia”