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Cases of sexual harassment particularly of women in the workplace have increasingly become a menace in the Nigerian workplace. However, it is saddening to note that there is no direct piece of National legislation that addresses this issue in Nigeria. Even, the Nigerian Labour Act 2004, which is the principal statute that regulates employment and related issues does not criminalize sexual harassment in the workplace. Therefore, victims are confused about how to seek redress.[i] It is important to note that anyone, both male and female can be a victim of sexual harassment in a workplace. The National Industrial Court (NIC) has affirmed this position in the case of Ejike Maduka v. Microsoft,[ii] stating that sexual harassment in the workplace could be towards either male or female and abuse of the right to dignity of the human person.
Notwithstanding the inadequacy of National statutes, the National Industrial Court has taken commendable steps in the protection of women from sexual harassment in the workplace by construing it as a violation of the fundamental rights to dignity, discrimination, and liberty. This has been achieved by a community interpretation of Sections 34, 35, 42, 254C (1)(f),(g),(h), & 254C(2) of the 1999 Constitution of the Federal Republic of Nigeria, Articles 2, 5, 14, 15 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act by the National Industrial Court.
What is sexual harassment?
The United Nations describes sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. People, particularly women and girls, face sexual harassment in all spaces, from online, to the streets, to their homes, to their places of work.[iii]
Sexual harassment may be defined as the unwarranted imposition of sexual gratification in the context of a relationship of unequal powers.[iv]
According to the Equal Employment Opportunity Commission (EEOC), there are two types of sexual harassment claims: quid pro quo and hostile work environment.[v]
1 Quid Pro Quo: “Quid Pro Quo” means “this for that.” In this context, it involves expressed or implied demands for sexual favors in exchange for some benefit (e.g., a promotion, or pay increase) or to avoid some detriment (e.g., termination, demotion) in the workplace.
2 Hostile work environments: Hostile work environment harassment arises when speech or conduct is so severe and pervasive that it creates an intimidating or demeaning environment or situation that negatively affects a person’s job performance.
Laws against workplace sexual harassment in Nigeria
There is no legislation present in Nigeria that specifically covers workplace sexual harassment. However, the Constitution of the Federal Republic of Nigeria contains the fundamental human rights of all persons in Nigeria. The fundamental human rights are sacred and must be respected by all persons. In most cases of sexual harassment, the fundamental human rights of victims are threatened and violated. Specifically, the right to dignity of the human person[vi] and the right to freedom from discrimination[vii].
The constitution has adequate compensation for any violation of fundamental human rights and a clear procedure for seeking enforcement. This is the most powerful legal instrument in Nigeria that directly or indirectly condemns sexual harassment and other forms of sexual violence.
Workplace sexual harassment often infringes on the fundamental human rights of victims. This means that in 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.[viii] There is no provision in the Labour Act that prohibits sexual harassment or any other kind of harassment during employment.
The Penal Code and the Criminal Code 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.
The criminal code contains provisions on sexual harassment that can be found in sections 351 to 361 of the Act. It has varying punishments for sexual harassment. The penal code is applicable in the northern part of Nigeria. The penal code refers to sexual harassment as indecent assault and has provisions for the offense in sections 281, 282, and 285 of the Penal Code.
The sexual and gender-based violence laws specially criminalize sexual harassment. The Violence Against Persons Prohibition Act is sexual and gender-based (operational in Federal Capital Territory, Abuja) and is now effective in most states in Nigeria, all criminalize sexual harassment.
Recommendations
The National Industrial Court is proactive in rebuking workplace sexual harassment through its award of damages to the victims; however, there is still a lot to be done in addressing this issue. There should be an express law that prohibits workplace sexual harassment.
Also, Employers should be mandated in their interest to have policies and rules in their employees’ handbook and code of conduct expressly prohibiting sexual harassment.[ix] In some of the cases determined by the National Industrial Court as earlier discussed, some employers were held vicariously liable, particularly in cases where they have shown complacency after the victim had reported the conduct to the employers.
Conclusion
Employers have the responsibility to protect employees from workplace sexual harassment and the government should create laws specific to workplace harassment. Another thing the government can do is ensure that any organization registering with the Corporate Affairs Commission (CAC) should be mandated to have a sexual harassment policy as one of the requirements.
They should also set up a system for mandatory reporting. Right now, an adult who is aware of child abuse is mandated by law to report such cases and this can be extended to workspaces to create a form of checks and balances.
[i] https://dnllegalandstyle.com/2019/protection-of-women-from-work-place-sexual-harassment-in-nigeria-whither-the-law-olutayo-awoyele/ accessed on 22/05/2023
[ii] Unreported NICN/LA/492/2012
[iii] https://www.globalcitizen.org/en/content/sexual-harassment-workplace-nigeria-women-STER/ accessed on 22/05/2023
[iv] https://dnllegalandstyle.com/2019/protection-of-women-from-work-place-sexual-harassment-in-nigeria-whither-the-law-olutayo-awoyele/ accessed on 22/05/2023
[v] https://nigeria.action4justice.org/legal_areas/sexual-harassment-in-the-workplace/workplace-sexual-harassment-what-does-it-look-like/ accessed on 23/05/2023
[vi] Section 34 of the Constitution of the Federal Republic of Nigeria 1999 as amended
[vii] Section 42 of the Constitution of the Federal Republic of Nigeria 1999 as amended
[viii] https://nigeria.action4justice.org/legal_areas/sexual-harassment-in-the-workplace/workplace-sexual-harassment-what-does-it-look-like/ accessed on 22/05/2023
[ix] https://dnllegalandstyle.com/2019/protection-of-women-from-work-place-sexual-harassment-in-nigeria-whither-the-law-olutayo-awoyele/ accessed on 23/05/2023
Written by Olalekan O. Elizabeth for The Trusted Advisors
Email us: info@trustedadvisorslaw.com