By

Michael K. Bielonwu Esq.,MCIArb, FIDR.

Agada, U. Luke Esq. FIPMA; Notary Public.

Fredrick O. Omatseyin

Jeremiah E. Aneji

Margaret E. Ogbonnah

ABSTRACT:

Sexual harassment if not curtailed in any society will lead to sexual violence. Sexual violence is an age-old global phenomenon, which occurs in every human society. It has become an “equal opportunity affliction”, sparing no race, gender, age category or social class¹. The orgy of sexual harassment is not only widespread but pervasive and if not put to check, will negatively impact productivity at the workplace. As Sexual Harassment in the workplace tends not only to lower the self-esteem of the victim but also causes trauma, stress and injuries to the psyche of the victim. There is therefore the need for the victims to be provided with legal protection² to feel safe to disclose cases of sexual harassment in the work place.

The aim of this article, therefore, is to provide the necessary insight into the legal frameworks and solutions to victims of sexual harassment who may, in most cases, rather resort to “suffering and smiling” as the concealed solution to this challenge due to the importance of livelihood and career development³.

Our duty, therefore, is to take a cursory look at what sexual harassment is and what it is not, why harassment occur in the workplace, what to do if you are sexually harassed, examples of harassment in the workplace and solutions to harassment in the workplace.

WHAT IS SEXUAL HARASSMENT IN WORKPLACE?

Sexual Harassment is defined as Unwanted conduct of a sexual nature or other conduct based on sex or gender which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment and this may include physical, verbal or non-verbal conduct⁴. From this definition, what some people might consider as joking, ‘banter’ or part of their workplace culture may still be sexual harassment if:

• the behaviour is of a sexual nature
• it’s unwanted
• it violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Taking cognizance of the above statutory and judicial stand points, sexual harassment may connote any form of unwelcomed behavior of a sexual nature which may include physical, verbal or non-verbal conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment and is tantamount to violence against the person or an affront to his or her dignity.

Although Sexual harassment is usually directed at an individual, but it’s not always the case. Sometimes there can be a culture of sexual harassment in a workplace that’s not specifically aimed at one person – such as sharing sexual images. Someone could still make a complaint of sexual harassment in this situation.

It could also be construed to mean Such unwelcomed sexually determined behavior as physical contact and advances, sexually coloured remarks showing pornography and sexual demands, whether by words or actions.⁵

EXAMPLES OF SEXUAL HARASSMENT IN WORK PLACE:

What amounts to sexual harassment sometimes differs from one jurisdiction to the other although these differences may not be too far apart in material respect. The reason being that what amounts to sexual harassment are at all times defined within context and express provisions of the criminal laws applicable within the jurisdiction (State or Country). For the purpose of pointers as to what amount to sexual harassment generally, we shall look at the definition and context provided for in the Section 46 of the Violence against Persons Prohibition Act (2015), the Penal Code, Section 264(1) & (2) of the Criminal Law of Lagos State 2011, Section 262 of the Kaduna State Penal Code Law 2017 and Section 63 of the Ekiti State Gender-Based Violence (Prohibition) Law 2019.

The combined reading of the provisions of the Nigerian law defines instances of sexual harassment to include but not limited to the following:

• Unwelcomed Sexual Advances – One
• Victimization On The Account Of Refusal To Succumb To Sexual Advances – TheNigerian case of Ejike Maduka v. Microsoft⁶ where the complainant was dismissed from her job for refusing sexual advances from her superior for over two years. Corey Lashley V. Sheila Flynn where the court held that an employee who was fired by his Boss on his refusal to perform sexual acts on her amounts to sexual harassment. See also Section 264(2) of the Lagos State Criminal Law.

• Request for sexual favours – In EEOZ V. Z Foods⁷ the Court held that female members of staff of a farm company were being sexually harassed when their supervisors persistently insist that they had sex with them in exchange for promotion at the company.
• Physical Conduct Of A Sexual Nature – This occurs where the sexual harassment involves physical inappropriate touching especially in sensitive part of the bodies with the intention of deriving some form of sexual satisfaction. In the case of Julie Fisher v. San Pedro Peninsula Hospital⁸ the Court held that a doctor who was fun of grabbing women (nurses) from behind and putting his hands on their breasts, picking them up and swinging them around was guilty of sexual harassment.
• Verbal Harassment Of A Sexual Natural – in the US case of Ani Chopourian vs.Catholic Healthcare West⁹ – the court held that it is sexual harassment for a surgeon to greet his colleague each morning by saying “I am horny” and sometimes afterwards proceed to slap her buttocks. This also can be extended to include insults and derogatory remarks that mask for sexual solicitation. In the case of Anucha Browne Sanders vs. Madison Square Garden et al (2007)¹⁰ the court held that using words like ‘bitch’ or ‘ho’ consistently on a female employ or colleague with the undertone of sexual solicitation amounts to sexual harassment.
• Visual display or imposition explicit sexual materials – In Linda Gilbert v.Chrysler¹¹, the court held that it was sexual harassment to display pornographic cartoon materials-in-order to arouse or discomfort a colleague. This in most cases would also include nudity and indecent exposures with intent to arouse the sexual interest of the victim. This sometimes include masturbation of sexually explicit acts in the present of the helpless victims taking pleasure from his/her discomfort. This was held in the case of Penny Muck v. Geffen Records¹² to amount to sexual harassment.

Examples of sexual harassments are endless. It includes unwanted sexual statements such as sexually explicit jokes, comments on physical attributes, spreading rumours or rating others about their sexual activity in front of others, displaying sexually explicit drawings, pictures or written material, unwanted sexually oriented statements in writing, text messages, facebook, and other media outlets, unwanted personal attention through personal interaction, pressure for dates, unwanted visitation, where sexual or romantic motive is obvious. Sexual harassment is also exemplified by unwanted physical advances such as touching, hugging, kissing, fondling, touching oneself sexually for others to see, sexual assault, unwanted sexual intercourse or other sexual activities, Sexual Abuse, Sexual Assault, and Sexual Exploitation

WHY SEXUAL HARASSMENT OCCURS IN WORKPLACE:

There are several causes of sexual harassment in the workplace and we will be looking at a few of them:

• Quid Pro Quo, this is when a job benefits – 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;
• Hostile working environment in which the conduct creates conditions that are intimidating or humiliating for the victim.

Behaviours that qualify as sexual harassment:

• PHYSICAL: Physical violence, touching, unnecessary close proximity
• VERBAL: Comments and questions about appearance, life-style, sexual orientation, offensive phone calls
• NON-VERBAL: Whistling, sexually-suggestive gestures, display of sexual materials. According to a 2004 report issued in Italy, 55.4% of women in the 14-59 age group reported having been victim of sexual harassment. One out of three female workers are subjected to sexual intimidations for career advancement with 65% blackmailed weekly by the same harasser, usually a coworker or supervisor. Furthermore, 55.6% of women subjected to sexual intimidation had resigned from the jobs.

According to a survey carried out by the Australian Equal Opportunity Commission in 2004, 18% of interviewees aged between 18 and 64 years said they had experienced sexual harassment in the workplace. Of those who experienced sexual harassment, 62% were physically harassed and less than 37 % were likely to report the abuse; Research shows that the type of women most vulnerable to sexual harassment are young, financially dependent, single, or divorced and with a migrant status. For men, those most harassed are young, gay, and members of ethnic or racial minorities.

WHAT TO DO IF YOU HAVE BEEN SEXUALLY HARASSED IN WORK PLACE:

• Tell your harasser to stop. If you do not feel safe or comfortable doing this, do your best to make it clear to the harasser that the offensive behaviour is unwelcomed.

• Report the harassment to management and ask that something be done to stop it; Report the harassment to a person with decision-making authority. If your employer has workplace sexual harassment complaint procedures, follow them. Try to make your complaint in writing. If possible, have a trusted witness present when you make your complaint. Try to get some proof that the employer actually received your complaint and the date and time the complaint was made (for example, ask your employer to confirm in writing that they received your complaint). Keep a copy of your complaint. In most cases, before an employer can be liable under the laws, the employer must be given notice of the harassment and must have a chance to deal with the problem.
• Cooperate in the employer’s investigation of your complaint. Take advantage of any preventive or corrective opportunities provided by the employer.
• Gather enough evidence to establish your case in courts of law, because cases are determined based on facts and evidence presented in court. Hence, to win a case and accessing justice starts with having enough evidence to substantiate a claim.

Therefore, provide evidence in respect of the following:

a. The conduct (behaviour) complained against is connected to sex or gender.

b. The conduct is severe or pervasive i.e., it goes beyond being simply annoying.

c. The behaviour is unwelcomed, persistent, uncomforting, intimidating, or hostile.

d. The liability of the party you are suing, (how the person is connected to or responsible for the harassment which may either be the offender directly or the employer).

e. Finally, you may consult a legal practitioner for legal advice and procedure on how to enforce your rights.

SOLUTIONS TO SEXUAL HARASSMENT AT WORK PLACE¹³

The following are some solutions to sexual harassment at work place:

• Everyone in the office must understand what sexual harassment means, at the risk of repetition, some of the examples are:

a. Unwanted jokes, gestures, offensive words on clothing, and unwelcome comments,

b. Touching and any other bodily contact such as scratching or patting a coworker’s back, grabbing an employee around the waist etc.

c. Repeated requests for dates that are turned down or unwanted flirting

d. Transmitting or posting emails or pictures of a sexual or other harassment-related nature

e. Displaying sexually suggestive objects, pictures, or posters

f. Playing sexually suggestive music

• Incorporate training on harassment and discriminatory treatment in your workplace;
• Ensure your workplace has a sexual harassment policy in place

Your organisation should publish a sexual harassment at work policy and ensure all staff are familiar with it. The policy should include clear whistleblowing and reporting procedures. If you are unaware of such a policy in your workplace, speak to your line manager about having one put in place.

• Raise awareness of sexual harassment in the workplace

The most effective form of prevention is awareness. Those who are aware of behaviours that can be interpreted as harassment are less likely to behave in that way and more likely to notice any form of harassment.

• Have clear harassment reporting procedures in place

All staff must feel comfortable reporting any behaviour that makes them or other staff feel uncomfortable. One thing we have learnt from the most recent allegations is that staff have protected, rather than reported colleagues behaving inappropriately at work.

• Incorporate staff welfare into review meetings and appraisals

These types of meetings are more than just a chance to review your employees’ performance and achievements; rather, this is an opportunity to give staff a voice to report any staff that have made them or their colleagues feel uncomfortable.

• Deal with any allegations and concerns immediately

Any instance whereby a fellow staff member or employee shares a concern with you should be dealt with as soon as possible. All the more so when it comes to sexual harassment in the workplace. The clear procedures in place should allow for the concern to be raised promptly and efficiently.

• Have a dedicated person in place to review any allegations

The workplace should have a dedicated staff member responsible for dealing with any concerns of sexual harassment. For example, a Human Resources officer.

• Zero tolerance policy for sexual harassment in the workplace

It goes without saying that there should be a clear zero tolerance policy towards sexual harassment in your organisation. Regardless of an employee’s stature within the organisation, should they be found guilty of sexually harassing a colleague or staff member there should be immediate consequences. If deemed necessary, a statement should be filed with the police.

• Report any concerns immediately

If you feel someone in your organisation has behaved inappropriately towards you or you have concerns regarding a colleague, raise your concern immediately. Your company policy should highlight the importance of confidentiality so you can raise your concern without fearing any negative consequences such as docked pay or being fired.

CONCLUSION:

The engine room of civilization is inextricably situated in the work sphere. An ideal workplace requires a serene, conducive, and enabling environment to engender optimum productivity.

However, the menace of sexual harassment has critically undermined serenity and productivity in the workplace. However, this situation is worsened as there are no explicit definition of discrimination under the Labour system in Nigeria as such we completely rely and borrow from international treaties and conventions.

Gender stereotypes and sexual harassment are manifest of growing concern in the contemporary workplace. It is axiomatic that the menace of sexual harassment critically undermines serenity and productivity in the workplace¹⁴. The legal framework for addressing this orgy of sexual harassment often encountered by stressed employees in a typical work environment in Nigeria is grossly inadequate. It is therefore imperative to address the inadequacy through legislative reforms in order to shore up the legal and regulatory environment for the prevention and addressing of sexual harassment particularly in the workplace. This has absolutely become necessary in order to redirect the workforce back on the path of serenity and productivity.

Disclaimer

This article is for information purposes only and is not intended as a legal opinion on any issue. Therefore, any usage of this article must be with the proper legal guidance as the position of the law may have changed.

¹Road to Successful Prosecution of Cases of Sexual Offences, Kidnapping and Ritual Killings in Nigeria being a paper presented by Hon. Justice H.M Ogunwumiju JCA (now JSC) at the 2017 Ondo State Chief Judge’s Annual seminal/workshop. Pg 3.

² EJEMBI, AINA-PELEMO, OWO & AINA: The Trajectory Of Nigerian Law Regarding Sexual Harassment In The Workplace

³ EJEMBI, AINA-PELEMO, OWO & AINA: The Trajectory Of Nigerian Law Regarding Sexual Harassment In The Workplace

⁴ Section 46 of the Violence Against Persons Act, 2015

⁵ Ejieke Maduka v Microsoft Nigeria Limited 19 December 2013, Case No. NINC/LA/492/2012

⁶ Ejieke Maduka v Microsoft Nigeria Limited (supra).

⁷ https://brobertsonlaw.com/10-crazy-sexual-harassment-cases/ Accessed on the 15/09/2022

⁸ [No. B033017. Court of Appeals of California, Second Appellate District, Division Seven. October 2, 1989.] Accessed on the 15/09/2022.

⁹ No. 2:09-CV-02972 (E.D. Cal. Feb. 29, 2012)

¹⁰ 525 F.Supp.2d 364 (2007)

¹¹ Kelvin McCoy: USA TODAY :https://www.usatoday.com/story/money/2017/10/25/sexual-harassment-here-some-biggestcases/791439001/ Access on the 10/09/2022.

¹² https://brobertsonlaw.com/10-crazy-sexual-harassment-cases/ Accessed on the 15/09/2022

¹³ https://vinciworks.com/blog/ten-steps-to-preventing-sexual-harassment-in-your-workplace/. Viewed on 7/10/2022

¹⁴ EJEMBI, AINA-PELEMO, OWO & AINA: The Trajectory Of Nigerian Law Regarding Sexual Harassment In The Workplace