BACKGROUND
Sexual harassment in the workplace relates to any unprofessional and undesirable conduct of a sexual nature (whether physical, verbal or through other non-verbal forms such as through unwelcomed gestures or indecent exposures and displays) by one employee to another which makes the recipient of the conduct feel offended, uncomfortable, intimidated, or humiliated whether or not the conduct is a proposition for a quid pro quo (i.e., exchange for a professional favour).
The old norm that Corporations could skip over their responsibility for enabling a harassment free company-culture has fast become outmoded. Sexual harassment and workplace assault can adversely affect employees, whether male or female (even though popular statistical records show that female employees tend to be more on the receiving ends of this problem). It is therefore only right that the modern corporation, apart from ensuring that it is a profitable going concern, is required to engender an inclusive and harassment free culture or at the very least take every step to prohibit, prevent and combat all forms of toxic workplace concerns; at the top of which is sexual harassment.
The Nigerian Constitution guarantees the rights to the dignity of human persons and personal liberty and it can be argued that sexual harassment and workplace assault are in violation of these constitutionally guaranteed rights[1].
However, Nigerian jurisprudence, especially her labour law [2] has not adequately developed to combat sexual harassment and workplace assault. This can be attributed to the fact that the Labour Act was enacted in 1971 and developments in modern labour and employment practice have long exceeded the limits of the Nigerian Labour Act.
CIVIL (NON-CRIMINAL) LAW PROVISIONS AGAINST SEXUAL HARASSMENT CONDUCT IN THE WORKPLACE
Whilst most people are aware that sexual harassment may be criminal, it has been observed that many do not know that the company and the perpetrator may be sued in civil court for acts and conducts which can be seen to engender or are calculated at sexually harassing the victims of such acts. In this regard, we will summarily review the provisions of the Employees Compensation Act and the revolutionary efforts of Nigeria’s National Industrial Court, to provide protection in the civil courts for victims of sexual harassment and assault in the workplace.
THE EMPLOYEE’S COMPENSATION ACT
One of the earliest provisions which can be tenuously associated with the regulation of sexual harassment and workplace assault is the Employees Compensation Act 2010[3], which provides that employers should provide compensation of employees who have fallen victim of mental stress as a result of a sudden and unexpected traumatic event arising in the course of employment. We say this law’s regulation of sexual harassment and assault in the workplace is tenuous because it does not provide specifically for sexual harassment. However, it is a good start when reviewing the Nigerian statutory position on these issues.
THE NIGERIAN INDUSTRIAL COURT’S INNOVATION
An amendment to the Nigerian Constitution made specific provisions granting the National Industrial Court of Nigeria (NICN) exclusive jurisdiction over cases “relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace”[4].
In furtherance of this constitutional provision, the NICN has awarded damages in deserving cases against perpetrators of workplace sexual harassment. An example is the case of Pastor (Mrs.) Abimbola Patricia Yakubu V Financial Reporting Council of Nigeria& Anor[5], where the NICN awarded the sum of N5,000,000(Five Million Naira) as damages in favour of the claimant who claimed that she had at various times been subjected to continuous sexual and seductive gestures and compliments, promiscuous and obscene talks, demand for sexual favours and indecent marriage proposal from one of her colleagues whilst she was under the 1st defendant’s employment. The NICN also held that the claimant’s right to human dignity and self-worth was violated by her colleague who was sued alongside her employer.
The NICN has also amended its Civil Procedure Rules to include provisions on workplace assault and sexual harassment [6]. What the rules have done is to ensure that, where an employee’s claim of sexual harassment in the workplace is premised on any of the following grounds, it will most likely succeed, and damages may be awarded to the victim. To wit:
a) Harassment arising out of physical conduct of a sexual nature:
(b) a verbal form of sexual harassment.
(c) a non-verbal form of sexual harassment; or
(d) harassment on the promise of a quid pro quo i.e., where an employer, line manager, supervisor, manager, or co-employee threatens, promises, or undertakes an attempt to influence or influences the employment, promotion, training, discipline, dismissal, payment of, or provision of other benefits to, an employee or job applicant in exchange for a sexual favour.
The NICN Civil procedure rules provisions even go further to spell out inter alia, that the following qualify as workplace sexual harassment:
(a) asking for sex in exchange for a benefit or favour.
(b) repeatedly asking for dates.
(c) performing or witnessing a strip search of a member of the opposite sex.
(d) making unnecessary physical contact, including unwanted touching.
(e) using rude or insulting language.
(f) using sex-specific derogatory names.
(g) making sex-related comments about a person’s physical characteristics or actions.
(h) posting or sharing pornography, sexual pictures or cartoons, sexually explicit graffiti, or other sexual images (including online); and
(i) making sexual jokes.
What the NICN did with its innovative piece of legislation was to cover a glaring lacuna in Nigerian law by giving victims of workplace assault and sexual harassment, not just their just rights but the ability to institute an action against the perpetrators of such dastardly acts before a court of competent jurisdiction.
THE CRIMINALITY IN SEXUAL HARRASSMENT CONDUCTS
A more popular repercussion of sexual harassment is that criminal charges may be brought against the perpetrators of the offending act. In this regard, we will summarily review the applicable provisions of the Criminal Law of Lagos State and the Violence Against Persons (Prohibition) Act.
THE CRIMINAL LAW OF LAGOS STATE 2011
With the Criminal Law of Lagos State 2011, Lagos state became the first state in Nigeria to explicitly legislate against sexual harassment at the workplace and in academic environments. This law prohibits unwelcome sexual advances, request for sexual favours, and other visual, verbal, or physical conduct of a sexual nature which, when submitted to or rejected, can lead to any of the following situations:
(a) implicitly or explicitly affecting a person’s employment or educational opportunity or unreasonably interferes with the person’s work or educational performance.
(b) implicitly or explicitly suggesting that submission to or rejection of the conduct will be a factor in academic or employment decisions; or
(c) creating an intimidating, hostile or offensive learning or working environment.
environment.
The law criminalizes sexual harassment and workplace assault and provides that any person who sexually harasses another is guilty of a felony and is liable to imprisonment for three years[7].
THE VIOLENCE AGAINST PERSONS (PROHIBITION) ACT 2015
The Violence Against Persons (Prohibition) Act (hereinafter referred to as ‘the VAPP Act’) came into force on 25th May 2015. It was enacted to eliminate violence in private and public life, by providing protection and effective remedies for victims and punishment of offenders.
Some of the offences provided for under VAPP include the following:
Emotional, Verbal and Psychological Abuse: Where employees are victimised because of their outright rejection of sexual advances by their colleagues or superiors, whether in the form of emotional, verbal or even physical abuse, such acts of abuse constitute offences under the VAPP Act and the offender is liable upon conviction to a term of imprisonment of not more than 1 year or a fine not exceeding N200,000.00 or both.[8]
Intimidation: Intimidation of employees or colleagues in any form is also an offence of which the offender is liable on conviction, to a term of imprisonment of not more than 6 months or a fine of not more than N100,000.00 or both[9].
Indecent exposure: Where the perpetrator indecently exposes genitals to his/her colleague, superior or subordinate with the intention of causing distress[10], such a person who intentionally exposes his or her genital organs or a substantial part thereof and induces another to either massage, or touch with the intention of deriving sexual pleasure from such acts commits an offence and is liable to imprisonment for not less than 1 year or to a fine not exceeding N500,000.00.[11]
Rape: Any person who commits the offence of rape is liable upon conviction to imprisonment for life[12] pursuant to the VAPP Act.
Additionally, any individual who compels another by force or threat to engage in any sexual conduct to the detriment of the person’s psychological or physical well-being commits an offence and is liable on conviction to a term of imprisonment of not more than 2 years or a fine not exceeding N500,000.00 or both.[13] And even if it was an attempt, without necessarily going through with it, there will still be a liability upon conviction, to a term of imprisonment of not more than 1 year or a fine not exceeding N300,000.00 or both.[14]
COMPENSATION TO VICTIMS UNDER THE VAPP ACT
An enviable feature of the VAPP Act is its provision for compensation to victims of crimes under the Act. The Act provides that the Court shall award appropriate compensation to the victim as it may deem fit in each circumstance.[15] A register of convicted sexual offenders is also to be maintained and accessible to the public.[16]
THE ROLE OF THE ORGANISATION IN PREVENTING AND CHALLENGING WORKPLACE SEXUAL HARASSMENT
As stated earlier, one of the core duties of every modern corporate entity or employer is to ensure that sexual harassment and all other forms of harassment or assault do not thrive in the work environment. Apart from the risk of creating a toxic work environment, which can increase attrition rates (amongst other demerits), employers can be held liable for the acts of harassment and assault committed by their employees under the rule of Vicarious Liability.
Vicarious liability can often be claimed where the employer is seen to, whether intentionally or unwittingly, encourage poor corporate culture either through negligent handling of complaints or actual refusal to take action against proven perpetrators of acts of harassment[17].
The popular saying: “Prevention is better than cure” is particularly true with respect to issues surrounding sexual harassment and workplace assault. Some of the steps that can be taken to prevent sexual harassment in the workplace are as follows:
(a) Development of a clear breakdown of its sexual harassment policy whether as a stand-alone policy or as part of Code of Conduct & Workplace Ethics Policy. This policy should emphasize the company’s intolerance for such acts, set out an easy and confidential complaints procedure and set out internal review and punishment mechanisms.
(b) Organisation of Periodic trainings on harassment at the point of onboarding new employees and at other opportunities.
(c) Apart from the trainings, other means of sensitization can be adopted for the benefit of the employees.
CONCLUSION
It is important to note that lawsuits on Sexual Harassment and workplace assault can be brought against the individual who is alleged to have committed the act of harassment and their employer. This may be as a deterrent for the Company’s seeming encouragement of such practices within the workplace or a ploy to obtain the damages from the deeper pockets of the employer rather than the offending perpetrator. This might explain why there is an increase in lawsuits brought against corporations for encouraging an atmosphere that allows for discrimination and harassment.
Therefore, it has become imperative for corporations to not only discourage sexual harassment and other discriminatory acts in the workplace but to be ensure that they are seen to MANIFESTLY discourage same.
In some cases, Nigerian law has not fully caught on to the global jurisprudential developments devised to solve these issues within their respective jurisdictions, but it is advisable that we at VGN continue to blaze the trail and lead the pack by staying ahead of the curve on potential risks of this nature as the trend in Nigerian common law of labour is fast moving forward in line with the global best practices.
[1] Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
[2] The Nigerian Labour Act 1971 does not even have a single shred of provision regulating sexual harassment in the workplace
[3] Section 9 of the Employees Compensation Act 2010
[4] Section 254(C) (1) (g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended in 2010)
[5] Judgement delivered on the 24th of November 2016 in Suit No NICN/LA/673/2013.
[6] Order 14 Rule 1 of the National Industrial Court of Nigeria Civil Procedure Rules 2017
[7] Section 262(1) of the Criminal Law of Lagos States 2011
[8] Section 14(1) VAPP Act
[9] Section 18(1) VAPP Act
[10] Section 26 (1) VAPP Act
[11] Section 26 (3) VAPP Act
[12] Section 1(1) VAPP Act
[13] Section 5(1) VAPP Act
[14] Section 5(2) VAPP Act
[15] Section 1 (3) VAPP Act
[16] Section 1 (4) VAPP Act
[17] See the case of Ejike Maduka v. Microsoft & Ors in Suit No: NICN/LA/492/2012 where the Court held both the harasser liable and the employer, vicariously liable, for acts of sexual harassment perpetrated by the harasser against another employee.
