What is Sexual Harassment?

“The Committee of Experts of the ILO (International Labour Organization) listed examples of sexual harassment in their 1988 General Survey to include: insults, remarks, insinuations and inappropriate comments on a person’s dress, physique, age or family situation, and a condescending or paternalistic attitude undermining dignity, unwelcome invitations or requests that are implicit or explicit, whether or not accompanied by threats, lascivious looks or other gestures associated with sexuality, unnecessary physical contact such as touching, caresses pinching or assault.”( e-KLR Industrial Court of Mombasa Case 441 of 2013)

Sexual Harassment in Kenya is defined in the Employment Act Section 6 as where the employer of co-worker;

  1. directly or indirectly requests that employee for sexual intercourse, sexual contact or any other form of sexual activity that contains an implied or express— (i) promise of preferential treatment in employment; (ii) threat of detrimental treatment in employment; or (iii) threat about the present or future employment status of the employee;
  2. uses language whether written or spoken of a sexual nature;
  3. uses visual material of a sexual nature; or
  4. shows 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

However, Sexual Harassment is also a criminal offence under Sexual Offences Act Section 23 where it is defined as;

“Any person, who being in a position of authority, or holding a public office, who persistently makes any sexual advances or requests which he or she knows, or has reasonable grounds to know, are unwelcome, is guilty of the offence of sexual harassment and shall be liable to imprisonment for a term of not less than three years or to a fine of not less than one hundred thousand shillings or to both.”

Sexual Harassment often escalates to indecent assault, attempted rape or even rape as set out in the Sexual Offences Act.

Fundamentally, Sexual Harassment is a violation of various fundamental Human Rights.

“As observed in the case of P.O. v. Board of Trustees AF & 2 Others, gender based violence is the most prevalent human rights violation in the world. No other form of sex discrimination violates so many fundamental rights as articulated in the 1948 United Nations Universal Declaration of Human Rights. These include Article 1 [all human beings are born free and equal in dignity and rights]; Article 3 [Everyone has the right to life, liberty and security of the Person]; and Article 5 [No-one shall be subjected to torture or cruel, inhuman and degrading treatment or punishment]. Other instruments cited in this decision, and which have a direct bearing on the case of L include the 1993 UN Declaration on the Elimination of Violence against Women and ILO Convention 111 [Concerning Discrimination in Respect of Employment and Occupation, 1958].” (E-KLR Industrial Court of Mombasa Case 441of 2013).

Sexual Harassment is actually Gender Based Violence which is often not reported or treated as very serious. It is a violation of Article 27, 28, 29, 41 of the Constitution of Kenya 2010. It is a gross violation of the following rights;

  1. Equality
  2. Freedom form Discrimination
  3. Human dignity
  4. Freedom from Violence and Torture

Where can a Victim get Justice?

A victim can get justice in the Industrial Courts or the Criminal Courts. There are various cases where the court has upheld the finding of Sexual Harassment and awarded punitive damages of millions against the Employer or harasser. The Industrial Court claims award financial awards and are separate and without prejudice to Criminal proceedings for the Sexual offence which attract a fine or imprisonment. A victim can get justice from both courts.

The Employer’s Role in Preventing Sexual Harassment

Many Employers find themselves on the wrong side of the law form actions of their rogue employees, for failure to have Sexual Harassment Policy as required under Section 6(2), (3),(4) of the Employment Act 2007. It sets out;

(a) the definition of sexual harassment

(b) a statement— (i) that every employee is entitled to employment that is free of sexual harassment;

(ii) that the employer shall take steps to ensure that no employee is subjected to sexual harassment;

(iii) 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;

(iv) explaining how complaints of sexual harassment may be brought to the attention of the employer; and

(v) 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.

(c) An employer shall bring to the attention of each person under the employer’s direction the Sexual Harassment policy statement

Image result for sexual harassment

How Can Sexual Harassment be Eliminated at the Workplace?

Victims of Sexual Harassment, both men and women, should defend protect and demand preservation of their rights that are violated at the workplace. The right to human dignity is inalienable, fundamental and should not be limited by any person as it is part of our essence as humans.

Sexual Harassment should no longer be brushed aside as minor, balanced with profits or salary or swept under the carpets as it is a CRIME. Human Resource Departments (and generally Employers) should sensitise employees on Sexual Harassment. They need to be sensitive and appreciative of the grossness of such violation and should treat such cases in the workplace with the importance and gravity as required. After the widespread expose on Sexual Harassment in Hollywood by Harry Weinstein, it is clear that this is still a widespread issue that affects people at the workplace.

Sexual Harassment has been proved to be a power play and dominance tactic and has no place in the workplace where skills and output are the measure of dominance and power! The Law has put in measures, in legislation and the Constitution, to help the victim not be fearful and to stand up for their rights to be treated fairly and with dignity especially at the workplace. Know Your Rights!

Join the upcoming event to usher in the 16 days of activism against Gender Based Violence. The theme of the 2018 Campaign is “End Gender-Based Violence in the World of Work.”

Janet Katisya

Lawquery Limited

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