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Dec 2019

Sexual Harassment at the Workplace

Sexual harassment is a form of discrimination and a human rights violation. It is intentional, insensitive and is meant to make the victim more powerless and lower the victim’s dignity. This is because it involves power play whereby the perpetrator uses sexuality as a tool of power and domination.

Sexual harassment at the workplace is prohibited by law.

The International Labour Organization, Discrimination (Employment and Occupation) Convention, 1958 (No. 111) defines discrimination as any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

The International Labour Organization calls upon each member state to promote equality of opportunity and treatment in respect of employment and occupation with a view of eliminating any discrimination thereof.

In line with this, the Constitution of Kenya under Article 27 protects every Kenyan against all forms of discrimination and violations against their rights. The constitution states that all citizens are equal before the law and have the right to equal protection and equal benefit of the law.

Article 28 states that every person has inherent dignity and the right to have that dignity protected.

Article 29 further states that every person has the right to freedom and security of the person, which includes the right not to be subjected to any form of violence or torture in any manner whether physical or psychological.

Section 23(1) of the Sexual Offences Act No.3 of 2006 states that sexual harassment is the persistent unwelcome sexual advance, request for sexual favour and other verbal, visual or physical conduct of a sexual nature by a person in a position of authority.

Section 23 (2) further states that the victim’s submission to the advances is intended to be used as the basis of employment or of a decision relevant to the career of the alleged victim, and that such advances have the effect of interfering with the alleged victim’s work or educational performance or creating an offensive working or learning environment for the alleged victim or denial of a service.

Section 6 (1) of the Employment Act, Laws of Kenya defines sexual harassment at the work place as an instance where an employer, a representative of that employer or a co-worker directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express promise of preferential treatment in employment, a threat of detrimental treatment in employment or a threat about the present or future employment status of the employee. It also describes sexual harassment at the workplace as the use of language whether written or spoken of a sexual nature, the use of visual material of a sexual nature or showing physical behaviour of a sexual nature which directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee and that by its nature has a detrimental effect on that employee’s employment, job performance, or job satisfaction.

Section 6 (2) of the Employment Act, Laws of Kenya states that all employers with more than 20 staff are supposed to create a policy prohibiting sexual harassment at the work place. It is however good practice for all employers to have the policy irrespective of how many employees they have. Under section 6 (3) of the Employment Act, the policy must contain the definition of sexual harassment specified in section 6 (1). It must also contain a statement that every employee is entitled to employment that is free of sexual harassment, that the employer shall take steps to ensure that no employee is subjected to sexual harassment and that the employer shall take such disciplinary measures as the employer deems appropriate against any person under the employer’s direction, who subjects any employee to sexual harassment. It shall also explain how complaints of sexual harassment may be brought to the attention of the employer and that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purpose of investigating the complaint or taking disciplinary measures in relation thereto.

There are two forms of sexual harassment:

  1. Unsolicited conducts.

These are in four forms; Physical, Verbal, Non-verbal and Sexual-bribery.

Physical unsolicited conduct is where a victim is touched inappropriately and against his/ her own will. It includes groping, unwelcome physical contact like massaging someone without invitation, grabbing someone in a sexual manner, rubbing genital organs on another.

Verbal unsolicited conduct takes both oral and written forms. This could include sexually charged verbal comments, jokes or insults.

Non-verbal unsolicited conduct is the use of visual media like photographs and videos to pass inappropriate sexual messages or make inappropriate sexual advances

  1. Sexual favouritism/ Sexual- bribery

This involves soliciting sexual activity by either promise or reward. A victim either gets punished for opposing sexual advances or gets favoured or rewarded for accepting sexual advances.

Key to note is that sexual harassment is an offence punishable under Section 23 of the Sexual Offences Act, Laws of Kenya. A perpetrator of sexual harassment is liable to imprisonment for a term of not less than 3 years or to a fine of not less than 100,000 shillings or to both.

By Millicent Bwire

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