Introduction
This article will attempt to define sexual harassment in employment relations as a behavior, review research findings on the subject, discuss the legal aspects of it, and propose a perspective to explain this phenomenon. It will conclude by offering suggestions on how to address the issue of sexual harassment at the organizational and national level in Ghana. The thrust of the paper is that Ghanaian employers need to create the required environment to ensure the prevention, or at least, minimize the occurrence of sexual harassment of men and women at work. This is line with protecting their fundamental human rights in employment. Sexual harassment can inhibit a victim?s right to realize his/her full development potential due to the short and long term traumatic consequences associated with it.
The Legal Context
The 1992 constitution of Ghana guarantees the rights to life, liberty, and dignity of the individual and a right of action is created in any person whose rights are violated to seek remedies in a court of competent jurisdiction. The Labor Act 2003(87:1-2,page 33) reinforces these fundamental human rights and provides that no person shall be discriminated against on grounds of gender, religion, creed, etc. Discrimination is defined as differentiating between individuals on the basis of their social diversity(race, gender, age etc) without regard to individual merit. Sexual harassment constitutes a form of discrimination. It is an unacceptable behavior at the workplace.
Article 63(3b) pages 23-24 of the Labour Act, which defines unfair termination of employment, specifically provides that a worker can terminate the contract of employment because the employer has failed to take action on repeated complaints of sexual harassment of the worker at the workplace. Under such circumstances, once it is proved, the employer is required by the act to pay compensation to the employee.
Defining the Behavior
Sexual harassment is generally described as unwelcome/unwanted sexually determined behavior that affects the dignity of women and men at work. It could be indirect or direct action, that results in physical contact and advances, a demand or request for sexual favors, sexually oriented remarks, any other unwelcome physical, verbal or non-verbal conduct of sexual nature. Some examples include unwanted sexual comments or personal comments about a woman or man?s appearance, non verbal harassment such as unwanted gestures or showing exotic pornographic materials. Others include unwanted sexual jokes, making statements on gender superiority or inferiority, unwanted touching of a person?s private part.
Within the context of the workplace, this may directly or indirectly affect an individual's employment rights. It is discriminatory for instance when the person has reasonable grounds to believe that his/her objection would disadvantage him/her in connection with accessing employment opportunities such as recruitment, promotion, training and development opportunities. It is discriminatory if it creates an intimidating task environment that affects the individual's work performance.
A debatable issue relates to the definition of the behavior. Is it sexual harassment or workplace romance gone bad? Or perhaps a case of sour grapes? Sex in most modern human societies is by definition a private affair with no eyewitnesses. Even sexual conduct that occurs openly in the workplace may appear to be consensual when it is not.
According to Kate Lorenz ?unless you're in separate locations, office romances are a bad idea. If you become involved with your boss, your accomplishments and promotions will be suspect; if you date a subordinate, you leave yourself open to charges of sexual harassment?.
Within the framework of business ethics, it is a morally unacceptable behavior. However, its interpretation can be wide and controversial, depending on the perspective one takes and disagreements can occur as a result of competing definitional perspectives. The workplace phenomenon of sexual harassment is further complicated by the fact that an individual's career can easily be destroyed either when they become the target of sexual harassment, or if they are accused of harassment. For example in the US, some people argue that the legal guidelines on sexual harassment are too broad and vague and some companies have fired employees for making seemingly harmless compliments. One of the most influential US lawyers Alan Dershowitz has argued that laws on sexual harassment infringes on the right to free speech.
Sexual Harassment - Research Findings
Lisa Winter has conducted extensive reasearch on sexual harassment and the findings indicate an increase in alleged cases of high profile sexual harassment in the UN, international diplomatic relations, in sports and educational institutions. Two of the most famous high profile celebrity cases are the ones involving US Supreme Court Judge Clarence Thomas and Anita Hill, a law professor, as well as former President Bill Clinton and Paula Jones. It is a global phenomenon.
The lack of job opportunities in the labour market has also been cited as a factor leading to the increased incidents of sexual harassment in Africa. According to a research done in Kenya by Dr. Regina Karega, most bosses regardless of low or high income jobs, have a tendency to use the need for a job as a weapon especially when their employees are newly employed. Ajuwon et al(Africa Journal of Reproductive Health 2001) have also studied the phenomenon within the labor market in the area of apprenticeship training in Nigeria. They used the concept of sexual coercion, and defined it as including verbal threats, unwanted touch, unwanted kiss, assault, deception, drugging, attempted rape, and rape. This study surveyed 1025 students and apprentices. 55% of all the subjects had been victims of at least one type of sexual coercion, the most common being unwanted kiss and touch of breasts (47%). Although both males and females were victims of coercion, females were disproportionately affected--68% of female students and 70% of apprentices had experienced one coercive behavior, compared to 42% of male students and 40% of apprentices.
In 1991, a female Headmistress of an educational institution in Scotland, was dismissed after an investigation into a complaint that she had sexually harassed a male member of staff. All of the above examples indicate that sexual harassment can occur in a variety of circumstances and contexts, and the victim or the harasser may be a woman or a man and this clearly refutes the often held theory that women are the only victims of sexual harassment. Men also suffer sexual harassment although less frequently compared to women. The point been made here is that sexual harassment is a worldwide phenomenon.
The Ghanaian Context
In Ghana, there is no passing day without one hearing of cases of allegations of sexual harassment either in the courts, at CHRAG or in the newspapers. It was recently reported that the Brong-Ahafo Regional Office of the Commission on Human Rights and Administrative Justice (CHRAJ) had began investigating a case in which a mortuary attendant of the Sunyani Government Hospital, had been dismissed for alleged sexual harassment. His offence was that he had remarked that a female medical doctor had a big buttocks. He had petitioned the Commission to intervene in the matter and compel the hospital to pay his entitlements and other benefits as a casual mortuary attendant for the two years that he had worked there.(Source: Ghanaian Times Posted 27th February 2006 Joyonline).
In another reported case, two members of the official Ghanaian contingent to the Third Women?s World Cup Tournament in the USA were expelled over alleged stealing and sexual harassment charges. The two, a player and an official were expelled barely a week before the tournament kicked off. The story says that what looked a well-intentioned reciprocal gesture on the part of the welfare officer ? offering a thank you card in appreciation for a gift turned sour when her benefactor a lady, turned around to accuse her of sexual harassment. The alleged victim made a complaint to officials of the Ghanaian delegation who proceeded to expel the officer from camp without calling witnesses to either corroborate or deny the story. (story posted on myjoyonline 23rd September 2003).
In a research report on sexual harassment at work and in the academic environment in Ghana by the African Women Lawyers Association, out of the total sample population of 789 women who responded,63 per cent(63%) said they had experienced some form of sexual harassment at work and in educational institutions. Some of the forms of sexual harassment included comments on physical appearance, questions about marital status, gender-based insults, repeated requests for dates and sexual assault
Eighty-two per cent(82%) of those interviewed said they had been harassed by men, while only one per cent said they had been harassed by women. Fifty-four per cent(54%) of those who have experienced sexual harassment in Ghana are students. Interestingly, the Ashanti and Greater Accra regions had the highest number of respondents experiencing sexual harassment at the workplace and in the academic environment. (Daily Graphic 10th October 2005).
The report identified women with low incomes as being the most vulnerable victims of sexual harassment. These women received less than ?500,000 a month as salary. Many Ghanaians will remember the media frenzy in 1999,when the Commission on Human Rights and Administrative Justice(CHRAJ)ruled that the CEO of Fan Airways was guilty for sexually harassing a former female employee.
It is a fact that because of the complicated nature of the subject and the stigma associated with it, majority of cases are not reported. In Ghana it is not surprising to frequently hear from colleagues and family members of situations where potential employers have used their position to demand sexual favors before offering job opportunities. The popular refrain ?take it or leave it? or ?give and take? are frequently heard as some of the ?subtle? statements some managers make to issue ?veiled demands for sexual favors?.
Due Process & The Law
Employers face a lot of challenges when dealing with allegations of workplace sexual harassment. Very often, the alleged victim may not be able to identify witnesses to the alleged conduct itself which most often than not is a secret affair. The problem becomes more pronounced if the allegation is made against an influential and powerful senior manager.
When investigating allegations of sexual harassment, it is important for the employer to look at the circumstances, the nature of the sexual advances, and the context in which the alleged incidents occurred. A critical overview of most documented legal cases on allegations of sexual harassment indicates that the resolution of a sexual harassment claim often depends on the trustworthiness of the parties. Just like any other workplace grievance process, a victim's allegation must be sufficiently informative with a clear logic for it to be taken seriously. The lack of these minimum requirements may potentially weaken an allegation. In the same vein, a general denial by the alleged harasser will not be convincing when it is challenged by credible information. In effect, there should be credible information from both parties and an investigation must follow due process.
According to a paper written by the UK Law Firm Glovers Solicitors, where a female or male is subjected to constant suggestive comments as part of a campaign to persuade him/her to terminate his/her contract, english case law has shown that the courts are unlikely to require the person to produce evidence once the treatment that he/she received can be defined as discriminatory of a sexual nature. The victim does not have to demonstrate any financial or other specific loss such as a loss of dismissal. What is needed is for the person to show that his/her working environment has become intimidating, hostile and offensive.
At the national level, the existence of legislation on sexual harassment also helps to punish offenders. For example, a court in Spain found a senior management staff of a shopping center guilty of harassing his female subordinate with unwanted sexual advances and ordered him to pay five-thousand dollars in fines and compensation. Trade unions and women's groups in Spain, welcomed the ruling, which was an important precedent in the fight against sexual harassment in Spain. A pharmaceutical company in the United States also agreed to pay nearly 10 million dollars as compensation to 80 former employees who were sexually harassed and it represented the biggest such settlement of its kind in the country's history. The CEO was amongst those who were proven as having committed sexual harassment.
Brazil has also signed into law a bill outlawing sexual harassment. The law sets prison sentences of up to two years for sexual harassment. South Africa recently passed an amendment law "Employment Equity Act? (55/1998). Sections of the Act require employers to adopt a sexual harassment policy, which should take cognizance of the provisions of the sexual harassment code, and to effectively communicate this policy to all employees and there is a clear requirement for determining whether the employer has discharged its obligations in accordance with the Act.
In the state of California USA, employers with 50 or more employees are required by law to provide two hours of sexual harassment training to all supervisors once every two years. The training must consist of ?information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment.? Training should include practical examples aimed at instructing supervisors in the prevention of harassment.
Understanding The Issue -Two Contrasting Perspectives
From a rights based approach, we wish to propose a perspective to explain the dilemma faced by many HR Managers concerning this human rights issue at work. The first proposed approach is described as the individual rights perspective (IRP). The hypothesis here is that allegations of sexual harassment are in fact adult workplace romance gone bad. If two consenting adults want to engage in a sexual relationship at the workplace, it is their fundamental right, choice, free will and problem. The employer should only be involved if this creates conflict of interests, collusion or affects performance and reporting lines. In short, unless it affects morale in the work place what people do with their personal lives is their own problem and the employer has no right to act in any way whatsoever that can be defined as infringing an employee?s civil liberties, rights and personal lifestyle.
Following from this assertion, it is argued that if an employee is having a workplace romance (affair) with another company staff and elects, or opts for, or voluntarily requests for counseling, then the HR Manager may facilitate the provision of this counseling directly by establishing a reasonable and transparent space and time for the counseling to take place with due respect for confidentiality and diversity.
The second alternative proposed approach is described as the organizational rights perspective (ORP). The hypothesis here is that the employer has every right to exercise its sovereignty within its legal office space through its rules, policies and regulations to prohibit sexual relations whether consensual or not between two employees. This approach can potentially, help to curtail the arbitrary use of power by senior corporate leaders who by the virtue of their status, are in a position to allocate resources, rewards and punishment, and to decide ?who gets what, when and how? to quote the famous political science theorist Harold Lasswell.
The major thrust of the ORP is that by default, sexual relations at work can potentially be financially and psychologically costly since they affect the morale of other staff, create fertile grounds for office gossip, are distractive and are always a source for litigation if they go bad. The end result is low productivity and unnecessary tension. Following from this assertion, it is argued that the employer must upon obtaining sufficient evidence after a due process, impose punitive sanctions on staff who engage in sexual relations at work which may or may not result in an allegation of sexual harassment. Sexual relations at work in whatever form must in principle be frowned upon.
The counter argument to this theory is that in some cases, within the context of power and decision making processes in organizations, there is a thin line between the employer and senior management. Senior managers are in principle representing the employer and can under certain circumstances, in fact be defined as the employer. So the question which arises is, who is the best person to address this issue if the alleged culprit is a senior manager. This is an issue because this person can potentially be the referee(as a member of the collective management decision making process by indirectly influencing his/her peers on the investigating panel), player (as a defendant), match commissioner and spectator in resolving this dilemma. The solution to this dilemma is to establish a clear policy which defines the processes and sanctions to be applied when allegations of violations are reported and verified after due process. This can also be reinforced by different appeal levels up to the highest level in corporate governance.
Way Forward As much as practicably possible, the employer should intervene if it is proved beyond reasonable doubt that a request for a sexual favor is been made within the context of power relations dynamics where the boss uses his/her authority to allocate workplace resources to pressurise a subordinate either diplomatically or by the naked use of power.
The two perspectives(IRP &ORP) can be integrated depending on the facts of a particular case to respect the fundamental human rights of the individual at the workplace and protect the interest of the employer. Employers need to protect the dual rights of both complainants and individuals who have been the subject of complaints, as both may find themselves in vulnerable positions, and the rights and wrongs of a case may not be straightforward. Those who have been accused must be notified and assured that their rights will be fully protected, and that an allegation, will not automatically be taken as proof. They must also be counselled not to take matters into their own hands if they believe themselves unfairly accused, and that any retaliation will be viewed seriously, irrespective of the merit of the original complaints.
It will be unfair to the employer if a sexual relationship (whether or not it results in sexual harassment) creates an environment of psychological anxiety to other staff observers as well as financial loss to the employer due to the loss of business hours though gossips, agitations and allegations over unfairness, biased conduct and legal costs for pursing a law suit. In the same vein, it will be unfair for an individual?s right to associate with another person to be curtailed by an obtrusive sexual harassment policy whether or not it results in an allegation of sexual harassment.
Conclusion
Just as society has grown to see prostitution as the world?s oldest profession, in the same vein, sexual harassment can also be said to be the oldest human behavioral phenomenon at the workplace. Sexual harassment is a world-wide human behavioral phenomenon. Within the context of Ghana, at the national level, the existence of appropriate legislation can help to minimize the phenomenon although the ability to gather incontrovertible evidence will always remain a challenge. At the organizational level, an integrated human resources management (HRM) model could be applied to facilitate behavior change.
The HRM model may involve establishing a sexual harassment policy, providing adequate induction to new staff, reinforcing positive behavior by a sustained capacity building program for all organizational members from the CEO to the messenger, and having a performance management system where staff development and talent management opportunities are identified and administered in a systematic and transparent manner. These measures can facilitate the institutionalization of a positive organizational culture with two clear advantages. In the first place, a positive culture can enhance the bargaining power of potential victims since accessibility to development opportunities can be secured without compromising to an unwanted demand for a sexual favor.
Secondly, this positive culture can potentially ?check and balance?, and discourage any senior manager who may want to take advantage of an innocent staff member. To reinforce this positive anti-sexual harassment culture, HR practitioners will need to acquire and develop competencies on the psycho-legal concepts, context, processes and likely consequences of sexual harassment to be able to deal with an allegation of this nature. To institutionalize this positive anti-sexual harassment culture at the national level, civil society groups, trade unions, employers, and other actors in employment relations can collaborate, design and deliver a sustained advocacy campaign to help arrest this social phenomenon. From a gender diversity angle, the statistics indicate that majority of females seem to bear the brunt of sexual harassment in Ghana. This is a confirmation of the fact that historically and structurally women have been abused and marginalized in all spheres of social and political economic endeavors in Ghana. This should be stopped. The good news is that the Labour Act has a provision to protect and compensate female employees and it is hoped that all actors in employment relations will abide by them.
This paper has in a very limited way, argued that women and men, boys and girls are not safe in their schools and at the workplace as far as the issue of sexual harassment is concerned. There is the need to address this phenomenon which can be an impediment to the country?s human resources development agenda because sexual harassment can potentially inhibit a victim?s right to realize his/her full development potential due to the short and long term traumatic consequences associated with it.
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