Towards a better workplace: curbing sexual harassment

Introduction
Employee rights and workplace harassment
Legal framework

Introduction

It is clear from the #metoo #hertoo and #timesup campaigns – as well as the numerous allegations of sexual harassment levied against perceived industry leaders, including a professor at a Nigerian university – that combating sexual harassment is a global concern. Thankfully, it seems that such conduct will no longer be condoned, considered tenable or swept swiftly and easily under the corporate carpet.

Sexual harassment and workplace assault have serious implications for victims, including:

• physical and mental health issues;
• career interruptions;
• lower earnings;
• workplace intimidation; and
• a toxic work environment.

This article examines the protection of employees' rights in the workplace under Nigerian law.

Employee rights and workplace harassment

Employees' rights in the workplace include:

• the right to a non-toxic work environment;
• the right to have their competencies and expertise recognised;
• the right to work when pregnant, where feasible;
• the right to not be discriminated against due to marital status or gender;
• the right to the best and most enabling work environment possible, as prescribed by international best practices.

Employees also have a right not to be sexually harassed or assaulted in the workplace. Such conduct includes:

• unwelcome sexual comments;
• uninvited touching of the body or possessions; and
• unwanted sexual advances.

Legal framework

A good starting point for a discussion on the Nigerian legal framework for workplace sexual harassment is the legal protection provided for individuals in:

• the Constitution 1999 (as amended);
• the relevant conventions and treaties domesticated pursuant to Section 12 of the Constitution,
• local legislation, regulations and rules; and
• case law on workplace sexual harassment.

Employees Compensation Act
Nigerian laws on workplace sexual harassment are arguably inadequate. Few provisions deal explicitly with sexual harassment, which must be remedied if this issue is going to be curbed. Surprisingly, there is no explicit provision in the Labour Act 2004 that prohibits sexual harassment or any other kind of harassment during employment. The closest provision in this regard is Section 9 of the Employees Compensation Act 2010, which provides for compensation in the event of mental stress caused as a result of a sudden and unexpected traumatic event which arises during employment.

Constitution
Although the Labour Act is silent on workplace sexual harassment – which has no doubt left many victims unsure of their available legal options – it would be incorrect to assert that no protection is afforded to employees under Nigerian law. Section 34 of the Constitution protects the dignity of individuals at all times, including while in the workplace. In the event of a breach of this constitutional right, an aggrieved person can seek remedies in a court of competent jurisdiction.

International conventions
The right of individuals to protection from sexual harassment and to work with dignity are also human rights universally recognised by various international conventions, some of which have been domesticated in Nigeria. Thus, it follows that every individual has the right to practise any profession or carry out any lawful occupation, trade or business in a safe environment free from sexual harassment.

NIC rules
The National Industrial Court (NIC) addressed the void in the labour statutes regarding workplace sexual harassment in its Civil Procedure Rules 2017. Under Order 14, Rules 1(a) to (d), the following acts constitute 'workplace sexual harassment' in Nigeria:

• 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, a gesture that constitutes the alleged sexual harassment; and/or
• 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
• A non-verbal form of sexual harassment which includes unwelcome gestures, indecent exposures, and unwelcome display of sexually explicit pictures and objects; and/or
• 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.

Thus, an employee's claim of sexual harassment in the workplace is likely to succeed where any of the following can be established:

• physical conduct of a sexual nature;
• a verbal form of sexual harassment;
• a non-verbal form of sexual harassment; or
• an instance where a business owner, employer, supervisor, manager or co-employee undertook, attempted to influence or influenced 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.

In addition, Order 14 of the new rules sets out that the following acts, among others, qualify as workplace sexual harassment:

• asking for sex in exchange for a benefit or favour;
• repeatedly asking for dates;
• performing or witnessing a strip search of a member of the opposite sex;
• making unnecessary physical contact, including unwanted touching;
• using rude or insulting language;
• using sex-specific derogatory names;
• making sex-related comments about a person's physical characteristics or actions;
• posting or sharing pornography, sexual pictures or cartoons, sexually explicit graffiti or other sexual images (including online); and
• making sexual jokes.

Victims of the above conduct can file an action before the NIC seeking, among other things, monetary compensation, damages and an injunction.

The NIC's creativity in drafting Order 14 can be better appreciated when understood in the context of its innovative efforts to ensure that Nigerian labour law aligns with international best practices. That said, Order 14 is not necessarily a codification of the law on workplace sexual harassment, as this matter has always been actionable before the courts. However, it is helpful, as it:

• defines workplace sexual harassment;
• makes sexual harassment an actionable claim; and
• provides guidance on how to prove sexual harassment before a court of competent jurisdiction.

Criminal Law of Lagos State
Lagos state had taken steps to advance the jurisprudence on workplace sexual harassment in Nigeria by enacting the Criminal Law of Lagos State. The law prohibits harassment that:

• implicitly or explicitly affects a person's employment or educational opportunity;
• unreasonably interferes with a person's work or educational performance; or
• creates an intimidating, hostile or offensive learning or working environment.

In addition, any person who sexually harasses another person in Lagos is guilty of a crime and will be liable to three years' imprisonment.

For further information on this topic please contact Adekunle Obebe, Joseph Onele or Ozioma Agu at Bloomfield Law by telephone (+234 1 454 2130) or email (kunleobebe@bloomfield-law.com, joseph.onele@bloomfieldlaw.com or ozioma.agu@bloomfield-law.com). The Bloomfield Law website can be accessed at www.bloomfield-law.com.

Endnotes

(1) Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) Yale Law Journal, Vol 23, p16; Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1917) Yale Law Journal, Vol 26, p710; Arthur L Corbin, "Rights and Duties" (1924) Yale Law Journal, Vol 1(1), pp501-527; David Lyons Noûs, "The Correlativity of Rights and Duties" (1970) Wiley, Vol 4(1), pp45-55; and Jack Donnelly, "How are rights and duties correlative?" (1982) The Journal of Value Inquiry, Vol 16(4), pp287–294.