Abstract
This chapter provides an overview of the nature and prevalence of sexual harassment. It equally defines sexual harassment and its root causes. Furthermore, it examines the nexus between feminism, power and sexual harassment, noting that sexual harassment is fuelled by patriarchy and the entrenched power imbalances that exist in many African societies. It argues that any attempt at addressing sexual harassment must pay attention to these structural challenges in society. The chapter then considers international and regional norms on sexual harassment and the obligations imposed on states to address this disturbing issue. It draws lessons from other jurisdictions regarding how sexual harassment has been addressed. It ends by providing an overview of the chapters in this edited volume.
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Notes
- 1.
See Southern Africa Development Corporation ‘Regional Strategy and Framework of Action for addressing gender-based violence 2018–2030’ (2018).
- 2.
‘Sex for grades: Undercover in West African universities’ BBC News 7 October 2019 https://www.bbc.com/news/av/world-africa-49907376 (accessed 26 April 2021).
- 3.
S Nabaneh ‘Report on sexual harassment in the workplace in The Gambia’ (2021).
- 4.
As above.
- 5.
LM Cortina & MA Areguin ‘Putting people down and pushing them out: Sexual harassment in the workplace’ (2021) 8 Annual Review of Organizational Psychology and Organizational Behaviour 285.
- 6.
Cortina & Areguin (n 5) 287.
- 7.
As above.
- 8.
As above.
- 9.
As above.
- 10.
As above.
- 11.
Unreported NICN/LA/492/2012, 19 December 2013.
- 12.
At 27.
- 13.
See CEDAW Committee, General Recommendation 19 on violence against women, 1992, para 18.
- 14.
US Equal Employment Opportunity Commission ‘Sexual Harassment in our Nation’s Workplaces’ EEOC Data Highlight (April 2022) No 2 https://www.eeoc.gov/data/sexual-harassment-our-nations-workplaces (accessed 9 January 2023).
- 15.
As above.
- 16.
B Baum ‘Workplace sexual harassment in the MeToo Era: The unforeseen consequences of confidential settlement agreements’ (2019) 31 Journal of Business and Behavioural Sciences 4.
- 17.
As above.
- 18.
‘US Congress approves sexual harassment bill in #MeToo milestone’ The Guardian 10 February 2022 https://www.theguardian.com/us-news/2022/feb/10/us-congress-sexual-harassment-me-too (accessed 4 January 2023).
- 19.
Sections 34 & 42.
- 20.
CAPA9, Laws of the Federation Nigeria, 2004, arts 2, 5, 14, 15 & 19.
- 21.
At 4.
- 22.
As above.
- 23.
At 5.
- 24.
As above.
- 25.
As above.
- 26.
At 7.
- 27.
At 22.
- 28.
At 23.
- 29.
At 31.
- 30.
At 25.
- 31.
At 28.
- 32.
At 6.
- 33.
Baum (n 16).
- 34.
LF Fitzgerald et al. ‘The incidence and dimensions of sexual harassment in academia and the workplace’ (1988) 32 Journal of Vocational Behavior 152.
- 35.
MS Harned et al. ‘Sexual assault and other types of sexual harassment by workplace personnel a comparison of antecedents and consequences’ (2002) 7 Journal of Occupational Health Psychology 174.
- 36.
Cortina & Areguin (n 5) 291.
- 37.
Australian Human Rights Commission, 2018 National Survey available at https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual (accessed 15 December 2022).
- 38.
EEOC (n 14).
- 39.
Fitzgerald et al. (n 34).
- 40.
Cortina & Areguin (n 5) 297.
- 41.
As above.
- 42.
As above.
- 43.
Malik et al. ‘Coping with workplace sexual harassment: Social media as an empowered outcome’ (2022) 150 Journal of Business Research 165.
- 44.
Cortina & Areguin (n 5) 286.
- 45.
Global Fund for Women ‘Gender justice movement: “MeToo” Global Movement’ https://www.globalfundforwomen.org/movements/me-too/ (accessed 19 January 2023).
- 46.
EEOC (n 14).
- 47.
CM Rennison ‘Feminist theory in the context of sexual violence’ in G Bruinsma & D Weisburd (eds) Encyclopedia of criminology and criminal (2014) 1618.
- 48.
C MacKinnon Feminism unmodified: Discourses on life and law (1987) 103.
- 49.
See M Galesic & R Tourangeau ‘What is sexual harassment? It depends on who asks! Framing effects on survey responses’ (2007) 21 Applied Cognitive Psychology 189.
- 50.
See for example, EA Leskinen et al. ‘Gender harassment: Broadening our understanding of sex-based harassment at work’ (2011) 35 Law and Human Behavior 25; JL Berdahl ‘Harassment based on sex: Protecting social status in the context of gender hierarchy’ (2007) 32 The Academy of Management Review 641.
- 51.
R Jewkes et al. ‘Hegemonic masculinity: Combining theory and practice in gender intervention’ (2015) 17 Culture, Health & Sexuality 115.
- 52.
See for example, PJ Foster & CJ Fullagar ‘Why don’t we report sexual harassment? An application of the theory of planned behavior’ (2018) 40 Basic and Applied Social Psychology 148; LF Fitzgerald & LM Cortina ‘Sexual harassment in work organizations: A view from the twenty-first century’ In JW White & C Travis (eds) Handbook on the psychology of women: Perspectives on women's private and public lives (2017).
- 53.
UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, UN Doc A/RES/48/104 (1993) defines violence against women to include sexual harassment, which is prohibited at work, in educational institutions and elsewhere (art 2(b)).
- 54.
K Abrahams ‘Gender, discrimination and the transformation of workplace norms’ (1989) 42 Vanderbilt Law Review 1209.
- 55.
C Mackinnon Sexual harassment of working women: A case of sex discrimination (1979) 9–10.
- 56.
V Schultz ‘Reconceptualizing sexual harassment, again’ (2018) 128 Yale Law Journal Forum 24; See generally V Schultz ‘Reconceptualizing sexual harassment’ (1998) 107 Yale Law Journal 1683; V Schultz ‘The sanitized workplace’ (2003) 112 Yale Law Journal 2061.
- 57.
S Lukes Power: A radical view (1974).
- 58.
See P Bachrach & S Baratz ‘Two faces of power’ (1962) 56 The American Political Science Review 947, where the authors argue that in every human institution, there is an ordered system of power, a ‘power structure’ which is an integral part and the mirror image of the organisation’s stratification.
- 59.
Lukes (n 57).
- 60.
C Bachi ‘The issue of intentionality in frame theory: The need for reflexive framing’ in E Lombarde et al. (eds) Discursive politics of gender equality: Stretching, bending and policy making (2009) 19–35.
- 61.
M Fouacult Discipline and punish: The birth of the prison (1975).
- 62.
As above.
- 63.
E Lombamdo & P Meier ‘Power and gender: Policy frames on gender inequality in politics in the Netherland and Spain’ (2009) 30 Journal of Women, Politics and Policy 360.
- 64.
LC Hebert ‘The economic implications of sexual harassment for women’ (1993) 41 Kansas Journal of Law & Public Policy 41 at 49–50.
- 65.
Shultz ‘Reconceptualizing sexual harassment’ (n 56).
- 66.
N 53.
- 67.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
- 68.
These include, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on the Rights of Women in Africa and the African Charter on the Rights and Welfare of the Child.
- 69.
See para 18 of General Recommendation 19 of the CEDAW Committee.
- 70.
MacKinnon (n 55).
- 71.
As above.
- 72.
MacKinnon (n 55) 193.
- 73.
As above.
- 74.
As above.
- 75.
See for instance, E Durojaye and T Lawal ‘The Niamey Guidelines to combat sexual violence and its consequences in Africa and sexual harassment: A case study of Nigeria’ (2022) 33 (1) Stellenbosch Law Review 78–99.
- 76.
UN Committee on the Elimination of Discrimination Against Women (CEDAW), CEDAW General Recommendations 19 and 20, adopted at the Eleventh Session, A/47/38, 1992.
- 77.
General Recommendation 35 (GR 35) on gender-based violence against women, updating General Recommendation 19, 26 July 2017, UN Doc CEDAW/C/GC/35 (2017).
- 78.
As above.
- 79.
General Recommendation 35 (n 77) para 14.
- 80.
General Recommendation 35 (n 77) para 15.
- 81.
As above.
- 82.
General Recommendation 35 (n 77) para 16.
- 83.
As above.
- 84.
CEDAW Committee, General Recommendation 28 on the core obligations of states parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, UN Doc CEDAW/C/GC/28 (2010).
- 85.
As above.
- 86.
As above.
- 87.
CEDAW Committee, Joint general recommendation/general comment 31 of the Committee on the Elimination of Discrimination against Women and 18 of the Committee on the Rights of the Child on harmful practices, 4 November 2014, UN Doc CEDAW/C/GC/31-CRC/C/GC/18 (2014).
- 88.
See UN General Assembly, Combating violence against women journalists: Report of the Special Rapporteur on violence against women, its causes and consequences, 6 May 2020, UN Doc A/HRC/44/52 (2020).
- 89.
The Declaration on the Elimination of Violence against Women was adopted without vote by the United Nations General Assembly in its resolution 48/104 of 20 December 1993, art 2.
- 90.
Vienna Declaration and Programme of Action, 1993 (Adopted by the World Conference on Human Rights, A/CONF.157/23, 25 June 1993).
- 91.
Programme of Action of the International Conference on Population and Development, 5-13 September 1994, UN Doc A/CONF 171/13 (1994).
- 92.
Programme of Action of the International Conference on Population and Development (n 91) para 7.8.
- 93.
Beijing Declaration and the Platform for Action, Fourth World Conference on Women, China, September 4-15 1995, UN Doc AlCONF.I77/20 (1995) para 78.
- 94.
The International Labour Organization (ILO) Convention (190) and Recommendation (260) on ending violence and harassment against women and men in the world of work adopted on 21 June 2019 in Geneva at the International Labour Conference.
- 95.
As above.
- 96.
As above.
- 97.
African Union Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) adopted in 2003 in Maputo, Mozambique.
- 98.
See art 1.
- 99.
As above.
- 100.
Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt Communication 323/06.
- 101.
As above.
- 102.
See Zimbabwe for Human Rights v Zimbabwe 245/02 (16 May 2006).
- 103.
The ‘Guidelines to Combat Sexual Violence and its Consequences in Africa’ was adopted during the 60th Ordinary Session of the African Commission on Human and Peoples’ Rights held from 8 to 22 May 2017 in Niamey, Niger.
- 104.
As above.
- 105.
See Part 1 para 3.1 of the Guidelines.
- 106.
As above.
- 107.
As above.
- 108.
Part 6B of the Guidelines.
- 109.
Part 6C of the Guidelines.
- 110.
J Heyman et al. ‘Progress towards ending sexual harassment at work? A comparison of sexual harassment policy in 192 countries’ (2022) Journal of Comparative Policy Analysis https://doi.org/10.1080/13876988.2022.2100698.
- 111.
M Del Mar Alonso-Almeida ‘Women (and mothers) in the workforce: Worldwide factors’ (2014) 44 Women’s Studies International Forum 164.
- 112.
Heyman et al. (n 110).
- 113.
As above.
- 114.
MacKinnon (n 48) 104.
- 115.
M Chamallas ‘Writing about sexual harassment: A guide to the literature’ (1993) 4 UCLA Women’s Law Journal 27.
- 116.
Oncale v Sundowner Offshore Service Inc 523 US 75 (1998).
- 117.
As above.
- 118.
Equal Employment Opportunity Commission ‘Sexual harassment’ https://www.eeoc.gov/sexual-harassment (accessed 10 December 2022).
- 119.
42 USC §§ 2000e–2000e17 (as amended).
- 120.
Section 6(3) of the Employment Equity Act 55 of 1998 (as amended).
- 121.
See F Anthias ‘Intersectionality what? Social divisions, intersectionality and levels of analysis’ (2013) 13 Ethnicities 3; VM May Pursuing intersectionality: Unsettling dominant imaginaries (2015) 28.
- 122.
Charter of Fundamental Rights of the European Union, 30 March 2010, OJ (C 83) 389.
- 123.
See for instance Council Directives 2004/113/EC on the Implementing the Principle of Equal Treatment between men and women in the Access to and Supply of Goods and Services 13 December 2004.
- 124.
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Convention 210) was adopted by the Committee of Ministers on 7 April 2011. It opened for signature on 11 May 2011.
- 125.
Article 3 of the Convention on Preventing and Combating Violence against Women and Domestic Violence.
- 126.
Article 5 of the Convention on Preventing and Combating Violence against Women and Domestic Violence.
- 127.
ECtHR (Application 47358/20).
- 128.
Adopted by the Inter-American Commission of Women (CIM) of the Organisation of American States at a conference held in Belém do Pará, Brazil on 9 June 1994.
- 129.
On methodology, see E Durojaye & O Oluduro ‘The African Commission on Human and Peoples’ Rights and the woman question’ (2016) 24 Feminist Legal Studies 315; KT Bartlett ‘Feminist legal methods’ (1989) 103 Harvard law Review 829.
Bibliography
Books and Chapters in Books
Fitzgerald, LF & Cortina, LM ‘Sexual harassment in work organizations: A view from the twenty-first century’ In White, JW & Travis, C (eds) Handbook on the psychology of women: Perspectives on women's private and public lives (American Psychological Association 2017)
Lukes, S Power: A radical view (Macmillan London 1974)
MacKinnon, C Feminism unmodified: Discourses on life and law (Harvard University Press 1987)
Mackinnon, C Sexual harassment of working women: A case of sex discrimination (Yale University Press 1979)
May, VM Pursuing intersectionality: Unsettling dominant imaginaries (Routledge 2015)
Rennison, CM ‘Feminist theory in the context of sexual violence’ in Bruinsma, G & Weisburd, D (eds) Encyclopedia of criminology and criminal (Springer New York 2014)
Journal Articles
Abrahams, K ‘Gender, discrimination and the transformation of workplace norms’ (1989) 42 Vanderbilt Law Review 1209
Anthias, F ‘Intersectionality what? Social divisions, intersectionality and levels of analysis’ (2013) 13 Ethnicities 3
Bachi, C ‘The issue of intentionality in frame theory: The need for reflexive framing’ in Lombarde, E et al (eds) Discursive politics of gender equality: Stretching, bending and policy making (Routledge 2009)
Bachrach, P & Baratz, S ‘Two faces of power’ (1962) 56 The American Political Science Review 947
Bartlett, KT ‘Feminist legal methods’ (1989) 103 Harvard Law Review 829
Baum, B ‘Workplace sexual harassment in the MeToo Era: The unforeseen consequences of confidential settlement agreements’ (2019) 31 Journal of Business and Behavioural Sciences 4
Berdahl, JL ‘Harassment based on sex: Protecting social status in the context of gender hierarchy’ (2007) 32 The Academy of Management Review 641
Chamallas, M ‘Writing about sexual harassment: A guide to the literature’ (1993) 4 UCLA Women’s Law Journal 27
Cortina, LM & Areguin, MA ‘Putting people down and pushing them out: Sexual harassment in the workplace’ (2021) 8 Annual Review of Organizational Psychology and Organizational Behaviour 285
Del Mar Alonso-Almeida, M ‘Women (and mothers) in the workforce: Worldwide factors’ (2014) 44 Women’s Studies International Forum 164
Durojaye, E & Oluduro, O ‘The African Commission on Human and Peoples’ Rights and the woman question’ (2016) 24 Feminist Legal Studies 315
Fitzgerald, LF et al ‘The incidence and dimensions of sexual harassment in academia and the workplace’ (1988) 32 Journal of Vocational Behavior 152
Foster, PJ & Fullagar, CJ ‘Why don’t we report sexual harassment? An application of the theory of planned behavior’ (2018) 40 Basic and Applied Social Psychology 148
Fouacult, M Discipline and punish: The birth of the prison (1975)
Harned, MS et al ‘Sexual assault and other types of sexual harassment by workplace personnel a comparison of antecedents and consequences’ (2002) 7 Journal of Occupational Health Psychology 174
Hebert, LC ‘The economic implications of sexual harassment for women’ (1993) 41 Kansas Journal of Law & Public Policy 41
Heyman, J et al ‘Progress towards ending sexual harassment at work? A comparison of sexual harassment policy in 192 countries’ (2022) Journal of Comparative Policy Analysis https://doi.org/10.1080/13876988.2022.2100698
Jewkes, R et al ‘Hegemonic masculinity: Combining theory and practice in gender intervention’ (2015) 17 Culture, Health & Sexuality 115
Leskinen, EA et al ‘Gender harassment: Broadening our understanding of sex-based harassment at work’ (2011) 35 Law and Human Behavior 25
Lombamdo, E & Meier, P ‘Power and gender: Policy frames on gender inequality in politics in the Netherland and Spain’ (2009) 30 Journal of Women, Politics and Policy 360
Malik, A et al ‘Coping with workplace sexual harassment: Social media as an empowered outcome’ (2022) 150 Journal of Business Research 165
Schultz, V ‘Reconceptualizing sexual harassment’ (1998) 107 Yale Law Journal 1683;
Schultz, V ‘Reconceptualizing sexual harassment, again’ (2018) 128 Yale Law Journal Forum 24
Schultz, V ‘The sanitized workplace’ (2003) 112 Yale Law Journal 2061
Papers/Reports
Nabaneh, S ‘Report on sexual harassment in the workplace in The Gambia’ (2021)
Cases
C v Romania ECtHR (Application 47358/20)
Egyptian Initiative for Personal Rights and INTERIGHTS v Egypt Communication 323/06
Ejieke Maduka v Microsoft Unreported NICN/LA/492/2012 (19 December 2013)
Oncale v Sundowner Offshore Service Inc 523 US 75 (1998)
Zimbabwe for Human Rights v Zimbabwe 245/02 (16 May 2006)
Legislation
African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004
Employment Equity Act 55 of 1998 (as amended)
AU
Guidelines to Combat Sexual Violence and its Consequences in Africa (2017)
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol) adopted in 2003 in Maputo, Mozambique
UN
Beijing Declaration and the Platform for Action, Fourth World Conference on Women, China, September 4–15 1995, UN Doc AlCONF.I77/20 (1995)
CEDAW Committee, General Recommendation 19 on violence against women, 1992
CEDAW Committee, General Recommendations 19 and 20, adopted at the Eleventh Session, UN Doc A/47/38 (1992)
CEDAW Committee General Recommendation 28 on the core obligations of states parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 16 December 2010, UN Doc CEDAW/C/GC/28 (2010)
CEDAW Committee, General Recommendation 35 (GR 35) on gender-based violence against women, updating general recommendation 19, 26 July 2017, UN Doc CEDAW/C/GC/35 (2017)
CEDAW Committee, Joint General Recommendation/General Comment 31 of the Committee on the Elimination of Discrimination against Women and 18 of the Committee on the Rights of the Child on harmful practices, 4 November 2014, UN Doc CEDAW/C/GC/31-CRC/C/GC/18 (2014)
General Assembly, Combating violence against women journalists: Report of the Special Rapporteur on violence against women, its causes and consequences, 6 May 2020, UN Doc A/HRC/44/52 (2020)
General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, UN Doc A/RES/48/104 (1993)
General Assembly, Declaration on the Elimination of Violence against Women was adopted without vote by the United Nations General Assembly in its resolution 48/104 of 20 December 1993
General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
Other
Charter of Fundamental Rights of the European Union, 30 March 2010, OJ (C 83) 389
Council Directives 2004/113/EC on the Implementing the Principle of Equal Treatment between men and women in the Access to and Supply of Goods and Services 13 December 2004
International Labour Organization (ILO) Convention (190) and Recommendation (260) on ending violence and harassment against women and men in the world of work adopted on 21 June 2019 in Geneva at the International Labour Conference
Programme of Action of the International Conference on Population and Development, 5–13 September 1994, UN Doc A/CONF 171/13 (1994)
Southern Africa Development Corporation ‘Regional Strategy and Framework of Action for addressing gender-based violence 2018–2030’ (2018)
Vienna Declaration and Programme of Action, 1993 (Adopted by the World Conference on Human Rights, A/CONF.157/23, 25 June 1993)
Websites
Equal Employment Opportunity Commission ‘Sexual harassment’ https://www.eeoc.gov/sexual-harassment (accessed 10 December 2022)
Global Fund for Women ‘Gender justice movement: “MeToo” Global Movement’ https://www.globalfundforwomen.org/movements/me-too/ (accessed 19 January 2023)
‘Sex for grades: Undercover in West African universities’ BBC News 7 October 2019 https://www.bbc.com/news/av/world-africa-49907376 (accessed 26 April 2021)
‘US Congress approves sexual harassment bill in #MeToo milestone’ The Guardian 10 February 2022 https://www.theguardian.com/us-news/2022/feb/10/us-congress-sexual-harassment-me-too (accessed 4 January 2023)
US Equal Employment Opportunity Commission ‘Sexual Harassment in our Nation’s Workplaces’ EEOC Data Highlight (April 2022) No 2 https://www.eeoc.gov/data/sexual-harassment-our-nations-workplaces (accessed 9 January 2023).
Australian Human Rights Commission, 2018 National Survey available at https://humanrights.gov.au/our-work/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual
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The background research to this chapter by Temitayo Lawal is appreciated.
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Durojaye, E., Nabaneh, S., Adebanjo, T. (2023). Sexual Harassment, Human Rights and Feminism. In: Durojaye, E., Nabaneh, S., Adebanjo, T. (eds) Sexual Harassment, Law and Human Rights in Africa. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-32367-6_1
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