Ratified treaties;¹ Work of international supervisory bodies²

Sexual harassment/ Gender discrimination/ Use of international law as a guide to interpret domestic law

An employee of Microsoft Nigeria brought an action against the Country Manager of Microsoft Nigeria, Microsoft Nigeria, Microsoft Corporation and her immediate line manager alleging that she had been consistently sexually harassed by the Country Manager and that, in response to her objections and warnings to desist, her employment was terminated. She relied on General Recommendation No. 19 on violence against women of the UN Committee on the Elimination of Discrimination against Women (CEDAW) for the definition of sexual harassment. Moreover, she stated that the termination of her employment amounted to “acts of retaliation and gender discrimination, which in itself is an infringement of her fundamental right to freedom from inhumane treatment and freedom from discrimination as guaranteed under the 1999 Constitution as amended, the African Charter on Human Rights and other International Conventions against gender discrimination.”³

The Court, after having clarified the type of work relationship existing between the applicant and the respondents, referred to the Convention on the Elimination of All Forms of Discrimination against Women and ILO Convention No. 111 to decide on the allegation of sexual harassment, noting that the above-mentioned instruments “have been ratified by Nigeria and are applicable to construe the fundamental rights of the applicant expressly guaranteed in the 1999 Constitution as amended.”⁴ In particular, the court held that:

“The interpretation and meaning of CEDAW General Recommendation 19, ILO Convention No. 111, and the 1st and 2nd respondent’s [Microsoft Nigeria and Microsoft Corporation] anti-harassment and anti-discrimination policy is that sexual harassment is a form of discrimination based on gender.”⁵

Therefore, concluding that the actions of the Country Manager amounted to sexual harassment  within the meaning of CEDAW General Recommendation 19, it stated that the applicant’s “fundamental right against discrimination has been violated”.⁶

Moreover, it concluded that the termination of the applicant’s employment, simply because she refused to succumb to sexual harassment from the Country Manager constituted a violation of human dignity and freedom from discrimination as protected by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act.

With reference to the liability of Microsoft Nigeria and Microsoft Corporation, the Court held that it was their duty “to take utmost care to ensure that her fundamental right to freedom from discrimination and degrading treatment was not violated.⁷ By the inaction and silence (…), they both tolerated and sanctioned the [Country manager]’s conduct”.⁸ 

Therefore, the Court considered both of them vicariously liable for the acts of sexual harassment carried out by the Country Manager.

In conclusion, by referring to international law to interpret domestic law, the Court found that the applicant’s rights to human dignity and freedom from discrimination had been violated and ordered the payment of general damages by the Country Manager as well as Microsoft Nigeria and Microsoft Corporation.

¹ ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); Convention on the Elimination of All Forms of Discrimination against Women, 1979; African Charter on Human and Peoples’ Rights, 1981.

² UN Committee on the Elimination of Discrimination against Women.

³ Page 5 of the decision.

⁴ Page 25 of the decision.

⁵ Page 28 of the decision.

⁶ Page 28 of the decision.

⁷  Page 29 of the decision.

⁸ Page 30 of the decision.