Sexual harassment and gender discrimination in the workplace

The Case of the Commissioner, Commission on Human Rights and Administrative Justice (CHRAJ) Vs. Prof. Frank Awuku Norvor.
This week, I intend to review a case involving the Commission on Human Rights and Administrative Justice (CHRAJ) regarding the issue of Sexual Harassment and Gender Discrimination at work. The case was heard by His Lordship J. Ansah, J.A. as additional Justice of the High Court. Hopefully, a review of this case will bring up some salient practice lessons about sexual harassment and gender discrimination in the Ghanaian workplace.

An employer may not create or allow situations leading to a hostile work environment for employees. A worker may not be sexually harassed on the job by a superior, a colleague or subordinate. The Commission on Human Rights and Administrative Justice (CHRAJ) by its enabling legislation has the appropriate jurisdiction at law to hear and determine matters of Sexual Harassment.

The instant case is one of the very first that commissioned Ghanaian jurisprudence on the relationship between sexual harassment and gender discrimination in accordance with Article 17 of the 1992 Constitution. It also affirms the jurisdiction of CHRAJ to hear and determine sexual harassment cases under the ambit of human rights violations.

The Respondent in the instant case is Professor Frank Norvor, the then owner and Managing Director of Fan Airways Ltd, a domestic airline operator at the time. In November 1996, the Respondent employed Augustine Salome Tettey (Ms) as a Ticketing and Reservations Officer who later became a flight and cabin attendant in March 1997. Miss Tettey who is the Complainant in the instant case was dismissed by the Respondent on January 20, 1998 leading to her filing of a Complaint of

Sexual Harassment against the Respondent at the Commission on Human Rights and Administrative Justice (called in this review as CHRAJ).

The Complaint before CHRAJ was that the Respondent sexually harassed the Complainant and when she rebuffed his attempts was dismissed from her job. The Respondent countered the accusations and denied allegations of sexual harassment.

The Respondent’s defence was that the Complainant was terminated on grounds that differed from what she alleged. That, her dismissal was due to unsatisfactory conduct to include;

“(a) making unwarranted use of the telephone in the company’s reservations office for long periods thereby disrupting the business of the company,

(b) refusing to tidy up the office and quarrelling with her co-workers who resented her lazy attitude; and

(c) refusing to carry her own service bags (containing snacks and related supplies) from the operations office to the aircraft on which she was working.”

On receipt of Respondent’s response, CHRAJ conducted formal hearing to determine the matter. The Complainant stated her case before the Panel and called witnesses to testify on her behalf. Despite several adjournments to enable the Respondent attend the hearings, he failed to appear. Respondent’s counsel and representative in the matter was however available and duly cross-examined the witnesses called by the Complainant. After several adjournments however, Counsel for the Respondent wrote to CHRAJ to withdraw representation for reasons that “he had lost contact with his client.”

Under the circumstances, CHRAJ proceeded to consider the evidence adduced before it and to determine the matter accordingly. Hence, on January 1999 CHRAJ found for the Complainant and ordered the Respondent to

(a) cease all acts of sexual harassment or similar violations against the Complainant and

(b) pay to Complainant, monetary awards for legal fees and related hearing expenses, injury to her dignity and self-respect and the humiliation she suffered, and

(c) nine months of lost wages occasioned by dismissal with the interest thereon.

The Respondent applied to CHRAJ for a review of the above decision, which review was shot down.

It was when the Respondent failed to comply with CHRAJ’s orders that the Commission invoked its powers under Section 18(2) of the Commission on Human Rights and Administrative Justice Act, 1993 (Act 456) to seek an order to enforce its decision against the Respondent. The Respondent vehemently opposed the application on three main grounds that;

(a) “CHRAJ lacked the jurisdiction to hear the complaints because whatever the Respondent was alleged to have done to the Complainant was at its highest a tort or the invasion of the privacy of the Complainant and did not amount to a violation of her human rights”,

(b) that “even if it was a human rights issue, the enabling act of CHRAJ dictated that the Respondent was entitled to a fair hearing” which the Respondent did not get”; and

(c) that “it was Fan Airways that dismissed the Complainant and therefore the Respondent could not in law be made responsible for those acts.”

What Constitutes Sexual Harassment

The Court proceeded to determine what constitutes sexual harassment and whether or not the Complainant had suffered any acts of sexual harassment by the

Respondent. On the face of the evidence available to the Court, the Complainant stated that it was barely a month upon her employment that the Respondent began making amorous proposals to her. That Respondent made complimentary remarks about her bodily features and appearance. Respondent was stated to have told the Complainants among others that;

3. “you are beautiful, you are the most beautiful girl in this office…” and that this occurred on a weekly or fortnight intervals,
4. Respondent was said to have invited a kiss from the Complainant,
5. Respondent was said to have translated the verbal onslaught into action when on several occasions he attempted to force a kiss on the Complainant, hug her, hold her hand or go round and hold her from behind; and
6. that there were times when the Respondent fondled her “round”.

Complainant states that it was when she resisted all such advances from Respondent that he reacted by telling the Complainant that “if she would not yield to his request then she should not let it be anyone else.” Complainant stated that when the Respondent saw her in the Car of one Captain Lakai, he became angry, made some uncomplimentary remarks about her and threatened to carry out reprisals against her. That the Respondent carried out his threats of reprisal by grounding her and then on January 02, 1998 dismissed her from her job.

The Court referred to the Canadian case of Janzen V. Platy Enterprise Ltd (1998) 1 S.C.R. 1252, 10 C.H.R.R., D/6205; 2,32,40 where Chief Justice Dickson defined Sexual Harassment as “unwelcome conduct of a sexual nature that detrimentally affect the work environment or leads to adverse consequences for the victims of harassment”. The Court further relied on the authority of Dr. Arjun P. Aggarwal in his book Sexual Harassment in the Workplace (1987), Butterworths Canada Ltd, at page 1 said “sexual harassment is any sexually-oriented practice that endangers an individual’s continued employment, negatively affects his or her work performance, or undermines his/her sense of personal dignity”.

The Court also relied on the definition by the Alberta Human Rights commission which states that “sexual harassment is an unwanted sexual solicitation or advance made by a person who knows or ought to know that it is unwelcome. A reprisal or threat by someone in a position of authority, after a sexual advance is rejected constitutes sexual harassment.”

The Court listed several examples of unacceptable verbal behaviours that may constitute sexual harassment referencing page 11 of Dr. Aggarwal’s book that’

(a) comments of a sexual nature about weight, body shape, size or figure;

(b) comments about person’s looks, dress, appearance or sexual habits; and

(c) remarks about a woman’s breasts, buttocks…and her overall figure may constitute sexual harassment.

The author goes on as stated by the Court that unwanted physical contact with the victim may be explicitly sexual in nature or only accidental. Examples stated include (a) Hugging; and (b) attempted or actual kissing or fondling. On what Dr. Aggarwal calls “Psychological Sexual Harassment”, the following examples are given; (a) relentless proposal of physical intimacy beginning with subtle hints which may lead to overt request for dates and/or sexual intercourse; (b) sexual favours; and (c) proposition.

The Court concluded that “generally then, to constitute sexual harassment a given conduct must be unwelcome and of sexual nature detrimentally affecting the work environment. To meet the second requirement, it is not necessary that the conduct be overtly sexual; as long as it is gender related such that it would not be directed at members of the other sex, it may fall within this definition. Finally, the unwanted conduct must be

shown to be sufficiently severe and persistent to create a hostile environment.”

The Court held that there was enough evidence from the Complainant on whom the burden of proof lay to prove what the Respondent did that which made her level such allegations against him, that the Respondent from his verbal and physical behaviour did harass the Complainant sexually. That there was also evidence of psychological sexual harassment meted out to the Complainant by the Respondent.

There was the issue of objection on grounds that even if it was a case of sexual harassment made against the Respondent, it did not amount to discrimination as defined in Article 17 of the 1992 Constitution. The Court again relied on Dr. Aggarwal stating that “prior to 1981, sexual harassment on the job was not specifically prohibited by any human rights statute in Canada.” That it was doubted if sexual harassment necessarily involved discrimination at all.

The Court stated that according to Dr. Aggarwal, “in recent years however…Human Rights Commissions have taken an ‘about turn’ in their thinking on the issue with the result that now sexual harassment issues are firmly equated with discrimination and has found a place in human rights legislation. The Court expressed the hope that sooner than later, the necessary law would be passed so as to bring the state of our human rights laws in step with what obtains in other jurisdictions.

The Labour Act, 2003 (Act 651), passed a year after the instant case was determined, defines sexual harassment as “any unwelcome, offensive or importunate sexual advances or request made by an employer or a superior officer, or co-worker to a worker, whether the worker is a man or woman.” Act 651 equates failure of an employer to take action on repeated complaints of sexual harassment leading to the constructive termination of the victim’s employment as unfair termination of employment. Act 651 also prohibits discrimination in employment decision making on grounds of gender.

On the issue of the Jurisdiction of CHRAJ to hear the matter, the Court stated that “it is clear that many of what are decidedly fundamental rights as known or spelt out in our Constitution (like those provided for under Chapter 5 of the 1992

Constitution of Ghana) were also protected by the criminal laws of the land or by private law, such as the law of torts. An aggrieved person was entitled to proceed under either the Constitutional provisions or under any other law. The choice is for the aggrieved person to take. Once he or she exercises that option opened to him or her under the law she could not be faulted for that. The two options are not mutually exclusive of each other, though they may not be pursued simultaneously.”

The Court referred to the 1948 Universal Declaration of Human Rights which binds Ghana,(a member of the United Nations) and prohibits all forms of gender discrimination. The Court further referred to the United Nations International Convention on the Elimination of all forms Discrimination against Women as well as the African Charter on Human Rights and People’s Rights. And it was the opinion of the Court that the enabling Act of 456, gave CHRAJ the jurisdiction to investigate complaints alleging sex discrimination and or violations of human rights. That when carried on in the workplace, it creates a hostile and offensive environment for members of one sex. It makes the working place demeaning, disconcertingly harsh, for female employees who have to contend with sexual demands. That it creates unnecessary fear, tension, anxiety, embarrassment, humiliation and the lowering of the person’s self esteem.

That the combined effect of all the above is that the person’s fundamental human rights to work in a conducive atmosphere is violated. The Court therefore held that CHRAJ has the jurisdiction to hear the complaint before it in the instant case.