By Omoregie Precious
Sexual harassment is a very sensitive yet a serious issue in any work place. However, victims of sexual harassment are often times silenced due to stigmatization or loss of employment and perhaps lack of confidence in the justice system. This lack of confidence is born out of the ignorance of the legal process and the imaginary supremacy of the Corporations might to manipulate the justice system against the victims.
Sexual harassment is unwanted sexual advances, obscene remarks or any other offensive sexually motivated material or communication made to another. In other words, any type of sexual advance from one person to another that is not mutually welcomed is sexual harassment, when carried out in work premises during the cause of business constitutes sexual harassment in work place. A common belief is that sexual harassment only affects women however this is not true. Women can also make sexual advances or comments to men, causing them to feel sexually harassed. But it is no false statement that the ratio of women sexual harassment to men is very high. While there is a clear distinction on teasing people and making some offhand comments, there is a line that is crossed when those comments create a hostile work environment.
The U.S. Equal Opportunity Employment Commission (EEOC) defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board.
Under Title VII of the Civil Rights Act of 1964 enacted July 2, 1964 is a prominent landmark civil rights and U.S labour law in the United States. , it recognizes two types of sexual harassment in working environment.
1) Quid pro quo
2) Hostile work environment.
The quid pro quo harassment occurs in the workplace when a manager or other authority figure offers or merely hints that he or she will give the employee something (a raise or a promotion) in return for that employee’s satisfaction of a sexual demand.
Under the hostile work environment, unwelcome sexual advances, requests for sexual favours, and other verbal or physical conduct of a sexual nature creates offensive or hostile environment.
The elements adopted by courts in determining whether a hostile environment harassment claim is valid include:
- Whether the conduct was verbal, physical, or both;
- Frequency of the conduct;
- Whether the conduct was hostile or patently offensive;
- Whether the alleged harasser was a co-worker or supervisor;
- Whether others joined in perpetrating the harassment; and
- Whether the harassment was directed at more than one individual or singled out the victim
- Whether the harassment was reported to human resource department
- Whether the human resource department handled the report accordingly
THE POSITION OF NIGERIAN LAW ON SEXUAL HARASSMENT AT WORK PLACE
Generally , sexual harassment in work places is not provided for in the Labour Act (Cap L1 LFN 2004) which is quiet unfortunate because this act should encapsulate this sort if serious issue.
Under the Labour act, absolutely no provision is made for sexual harassment in work place. One may wonder what should be the stance where a worker is faced with such harassment in work place. The closest provision found is provided in the Employees Compensation Act 2010, under Section 8 which provides for the compensation of the mental stress of an employee if such stress emanated as a result of a sudden and unexpected traumatic event arising out of or in the course of the employee’s employment from work environment. It is no news sexual harassment can cause mental stress to its victims.
The Criminal Law of Lagos State under chapter 25 section 262 prohibits harassment and describes harassment as unwelcome sexual advances, request for sexual favours, and other visual, verbal or physical conduct of a sexual nature which when submitted to or rejected – (a) implicitly or explicitly affects a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance; (b) implicitly or explicitly suggests that submission to or rejection of the conduct will be a factor in academic or employment decisions; or (c) creates an intimidating, hostile or offensive learning or working environment. Any person who sexually harasses another is guilty of a felony and is liable to imprisonment for three years
Under the national industrial court civil rules, Order 14 explains the different types of sexual harassment in work place an employee can indicate. They are;
- Physical conduct of sexual nature
- A verbal form of sexual harassment
- Non-verbal form of sexual harassment
- Quid pro quo harassment.
The order goes further to state that a claimant trying to prove sexual harassment in work place must prove the manner which it occurred and other relevant actus reus, where there is no satisfactory evidence , the suit may be dismissed by the court.
It will appear that an employer would be held vicariously liable for sexual harassment that occurs in work premises during the course of employment regardless of unknown knowledge. In the case of Ejike Maduka v Microsoft & Ors the national industrial court held where an employer becomes aware of a workplace sexual harassment incidence and takes no administrative decision to investigate and address it, such employer may be liable for breaching its duty of care owed to the employee to protect the employee’s fundamental right
LEGAL PROTECTION AVAILABLE TO EMPLOYEE
Any employee sexually harassed by an employer or a member of employer, during the course of work can make reports to the human resources department, after filling such complaint and no changes have occurred, then such employee can make complaints to the police, or engage the services of a lawyer to institute a civil matter against employer for sexual harassment claims
This civil complaint will be instituted in the National Industrial Court of Nigeria, reasons being, the national industrial court has exclusive jurisdiction on matters relating to labour related matters in Nigeria . As mentioned earlier, claimant must disclose to court the exact type of sexual assault was exhibited amongst the four types provided for under Order 14 f the National Industrial court rules. The claimant as to further prove to the court the activity, including the mode, manner correspondence and communication that constituted the sexual harassment. If claimant is able to prove to the satisfaction of the court`, National Industrial Court will grant reliefs, which include monetary compensation, damages and injunction.
In light of all said , sexual harassment in work place is a serious issue to be dealt with in Nigeria , sadly Labour Act is silent on the issue of sexual harassment in work place, subsidiary legislation cannot be used to fully fill in the void the Labour Act failed to .
Although the National Industrial court civil rules provides the steps to follow in instituting a matter of sexual harassment before it, there is no arguments as to the wrong in such act. A relevant codified provision is needed to expressly cover this situation to protect the employee against disclaimer from his/her employers. To protest sexual harassment is very difficult due to hostile working environment which many occur as a result of refusal to concede harassment therefore employees must act quickly by instituting a matter once nothing is done to stop persistent sexual harassment in the cause of employment.
Corporations in a bid to manage their risk prudently must have anti-sexual harassment clauses in their policies to avoid legal exposures in future.