The MeToo movement gained a lot of traction worldwide, creating in its wake, increased awareness on the issue of sexual harassment of women globally. Many identify with it because many persons, regardless of their gender, have experienced some form of sexual harassment and indeed, it has been a cancer in many workplaces. The authors in their practice of providing labour advice, have in recent times, noticed a rise in the number of businesses requiring guidance on curbing sexual harassment at the workplace.
Sexual harassment is pervasive and tackling it without being adequately equipped would be challenging. Many employees may not even have an accurate description of what types of behaviours constitute sexual harassment. In that regard, the first step in tackling sexual harassment is to create awareness; followed by ensuring the enforcement of adequate rules to discourage sexual harassment at the workplace and punishing perpetrators. This article will discuss what constitutes sexual harassment, and how it affects businesses in Ghana. This article further assesses the efficacy of the regulatory framework in dealing with the problem and propose steps that businesses can adopt in discouraging sexual harassment in the work environment.
What Is Sexual Harassment?
Ghana’s Labour Act, 2003 (Act 651) defines “sexual harassment” as “any unwelcome, offensive, or importunate sexual advances or request made by an employer or superior officer or a co-worker to a worker, whether the worker is a man or woman”. It involves unwelcome sexual advances or gestures which may be accompanied by promises of rewards by an employer to an employee or superior to a junior worker. The use of the word ‘unwelcome’ in the definition implies that there is a lack of consent for the act which is of a sexual nature. Even where consent is purportedly given, that consent is void if it is obtained by means of deceit or of duress; or by the use of authority (including influence or advice purporting to be used or given by virtue of an authority) exercised in bad faith.
Sexual harassment may be physical, verbal, or non-verbal. Physical sexual harassment involves physical violence, inappropriate touching, and unnecessary close proximity. Verbal sexual harassment would include unwelcome comments and questions about a worker’s body parts, appearance, lifestyle, sexual orientation, and or offensive phone calls. On the other hand, non-verbal sexual harassment includes acts such as sexually suggestive gestures, whistling and hard or electronic display or communication of sexual materials or sexually suggestive messages.
Sexual Harassment as an Actionable wrong
Sexual harassment is an actionable wrong in Ghana. It may become a subject matter of a civil action and depending on the nature of the actions involved, it may also constitute a criminal offense, e.g. rape and indecent assault, for which perpetrators may be prosecuted.
Under the 1992 Constitution, sexual harassment in the workplace constitutes a breach of a person’s human rights provided under the Constitution. Ghanaian courts have broadly interpreted Article 17 of the Constitution to cover sexual harassment as part of the prohibited grounds of discrimination. There would be an instance of discrimination where a person of a particular gender or sex is subjected to any practice or behaviour that ordinarily would not be meted out to another for the reason only that that person is not of the same gender or sex. Sexual harassment is also an abuse of a person’s right to work in a conducive atmosphere.[i]
The Impact of Sexual Harassment on Businesses.
Sexual harassment is costly and greatly reduces the productivity of enterprises. It impacts the victim’s mental and physical wellbeing, causing victims to suffer low self-esteem, anxiety, depression, and general post-traumatic stress disorder. This further results in absenteeism, de-motivation, impaired judgment, compromised teamwork, reduced commitment to the business organisation and ultimately low business turnover.
Perpetrators of sexual harassment, who are in positions of power, are inclined to make unfair and irrational decisions motivated by their desire to continue harassing specific employees or their need to cover their tracks. Also, sexual harassment creates an atmosphere of fear and mistrust in the workplace for current employees and for prospective employees. Due to the lack of trust and team spirit, progress and innovation are stifled within the enterprise.
Additionally, sexual harassment in the workplace may bring about negative publicity which may cause customers/ clients and potential employees to prefer other businesses and brands. It is reported that Fox News lost several advertisers when lawsuits were initiated against former show host Bill O’Reilly for sexual harassment.[ii] The BBC recently reported that some institutions have cut ties with the company run by renowned architect Sir David Adjaye due to allegations of sexual harassment by female employees of his firm.[iii]
Sexual harassment in the workplace may culminate in high reputational costs, legal fees, damages, and payments of settlement amounts all of which can stifle business profits.
How It Can Be Addressed
According to the International Labour Organisation (ILO) fact sheet on sexual harassment at work, effective action against sexual harassment in the workplace requires a combination of legal frameworks, greater enforcement, adequately funded institutions, and a greater awareness of the issues.[iv]”
Is The Ghanaian Legal Framework on Sexual Harassment Effective?
Under the Labour Act sexual harassment constitutes a ground on which an employee may terminate an employment agreement. Further, the employment of a worker is deemed unfairly terminated by the employer, if the worker terminates the contract of employment on grounds that the employer has failed to take action on repeated complaints of sexual harassment of the worker at the workplace. Likewise, the Labour (Domestic Workers) Regulations, 2020 (LI 2408) also prohibits sexual harassment and provides that where a domestic worker terminates their employment due to their employer’s failure to take action on repeated complaints of sexual harassment, the termination is deemed unfair. In both cases, the worker can bring an action of unfair termination against the employer.
Despite these provisions, Act 651 is inadequate in ensuring that workers are protected from sexual harassment since the definition and elements of sexual harassment are not broad and descriptive enough. Act 651 and LI 2408 also do not specify what actions must be taken by the employer regarding reports or knowledge of incidents of sexual harassment. Further, the law fails to indicate how many incidents of sexual harassment an employee must have experienced (in order for the termination of their employment to warrant unfair termination). The question of repetition of such conduct should not even arise if it is expected that employers be swift and decisive in dealing with sexual harassment in the workplace. One act of sexual harassment should be enough especially where the harassment is physical in nature.
Ghana needs a more detailed definition, some guidance for employers and employees and more punitive laws to deter perpetrators of sexual harassment. In Kenya, Uganda and Zambia, sexual harassment is treated as a criminal offence and the laws addressing the problem require employers to issue policy statements on sexual harassment which clearly define sexual harassment and encourage victims and their colleagues to speak up. It is, therefore, suggested that Act 651 and other applicable laws be duly amended to take into account these considerations.
Recommended actions
Rather than reacting with silence, victim shaming or blaming or retaliating against victims, businesses must adopt the following measures to position themselves to prevent sexual harassment or address it when it occurs in the workplace.
- Anti-sexual harassment work policies: Workplaces must create policies which deter sexual harassment in the workplace. These policies must set out in detail the acts which amount to sexual harassment, the procedure for reporting sexual harassment and the applicable sanctions. For businesses whose employees work remotely or online, such policies must be framed to address online sexual harassment as well.
- Training on sexual harassment: There should be orientation of new employees and re-orientation of staff on the rules and policies against sexual harassment in the workplace. This would help create and maintain staff awareness of the organization’s stance against sexual harassment.
- Creating welcoming avenues for reporting incidents of sexual harassment: Various avenues for reporting incidents of sexual harassment must be made known to employees. These options should include processes outside the workplace. The mechanisms available and persons who receive reports of incidents of sexual harassment must be approachable and accessible. This would create an atmosphere where victims feel more comfortable with reporting such incidents.
- Ensuring prompt investigation of complaints and enforcing sanctions: Employers have a duty to ensure that there is zero-tolerance for sexual harassment. This is easily effected by ensuring that all reports or claims of sexual harassment are promptly and diligently investigated and the culprits, duly punished. Disciplinary procedures and sanctions should apply to offenders at every level.
- Fostering a culture that promotes mutual respect and dignity: Employers can make provision for the support and protection of persons who report incidents of sexual harassment. This support must be given right from when the complaint is filed through the investigation stage to when the claim is finally determined. There must be intentional efforts made by organizations to discourage and eliminate discriminatory or sexual emails, jokes, posters, language etc. from the workplace.
Employees need to remember that the National Labour Commission (NLC), the CHRAJ as well as the courts are able to address conflicts that arise as a result of sexual harassment in the workplace. Further, regarding domestic workers, where they terminate contracts of employment due to sexual harassment, they have the option of lodging a complaint with a District Labour Office.
Conclusion
Sexual harassment must be rooted out of workplaces and a holistic approach, which tackles gaps in the legal framework, institutions, and the lack of awareness, is required to effectively discourage sexual harassment. Also, Employers are best placed to deal with this problem and need to put systems in place to prevent sexual harassment in workplaces and ‘sanitize’ workplaces which have recorded or are recording such incidents to boost employee confidence and increase productivity.
[i] Commission on Human Rights and Administrative Justice (CHRAJ) v Norvor [2001-2002] 1 GLR 78
[ii] The New York Times, < https://www.nytimes.com/2017/04/04/business/media/sexual-harassment-bill-oreilly-fox.html#:~:text=Fox%20Losing%20More%20Advertisers%20After%20Sexual%20Harassment%20Claims%20Against%20O’Reilly,-Share%20full%20article&text=Pressure%20mounted%20on%20Tuesday%20for,group%20called%20for%20his%20ouster.> Published on April 4, 2017.
[iii] BBC News. < https://www.bbc.com/news/uk-england-merseyside-66477406> Published on August 11, 2023.
[iv] ILO Sexual Harassment at Work Fact Sheet
The Authors:
Darley is a lawyer with the Labour Practice Group of AB & David Africa. She is based in the Accra office and has advised local and international clients on various labour and employment matters. She also works with the Banking & Finance, Intellectual Property, Telecommunications & Technology and Start-Ups & SMEs Practice Groups of the firm. You can reach Darley via
Selasi is a lawyer at AB & David Africa and is based in the Accra office. She specialises in Dispute Resolution, Labour, Corporate & Finance, Government Business & Regulation and Africa Trade and has advised and represented clients on various matters related to these practice areas. You can reach Selasi via [email protected].
