Sexual Harassment

Section 6 of the Employment Act states:

(1) An employee is sexually harassed if the employer of that employee or a representative of
that employer or a co-worker—
(a) 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;
(b) uses language whether written or spoken of a sexual nature;
(c) uses visual material of a sexual nature; or
(d) 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.
(2) An employer who employs twenty or more employees shall, after consulting with the
employees or their representatives if any, issue a policy statement on sexual harassment.
(3) The policy statement required under subsection (2) may contain any term the employer
considers appropriate for the purposes of this section and shall contain—
(a) the definition of sexual harassment as specified in subsection (1);
(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.
(4) An employer shall bring to the attention of each person under the employer’s direction the
policy statement required under subsection (2).
The Constitution of Kenya under Article 27 is unequivocal on equality and freedom of all Persons.
Article 28 guarantees every person inherent dignity and the right to have that dignity respected and
protected. Article 29 secures the right of all Persons not to be subjected to any form of violence from
either public or private sources. It outlaws treatment or punishment which is cruel, inhuman or
degrading. This right is not capable of any limitation, under Article 25. There is lastly the right to fair
labour practices under Article 41, which encompasses the right to reasonable working conditions.
A single incident can amount to harassment per Bracebridge Engineering Ltd v Darby (1990).
The ILO Working Paper 3/2011 concerning Gender Based Violence characterises it as “the most
prevalent human rights violation in the world. Of the varied ways in which sex discrimination
manifest itself across the globe, such violence is exceptionally dehumanizing, pervasive and
oppressive. No other form of sex discrimination violates so many fundamental human 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 to
cruel, inhuman and degrading treatment or punishment].”
The 1993 UN Declaration on the Elimination of Violence Against Women defines it as “any act of
gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty
whether occurring in public or private life.”
The 1988 General Survey of the Committee of Experts of the ILO lists examples of sexual harassment
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.
Vishaka & Ors v. the State of Rajasthan & Ors (1997): the Indian Supreme court found that it is the
duty of the Employer or other Responsible Persons in the Workplace, to prevent or deter the
commission of acts of sexual harassment and to provide the procedure for resolution, settlement or
prosecution of acts of sexual harassment by taking all steps required. For this purpose sexual
harassment includes such unwelcome determined behaviour, whether directly or indirectly, such as:
physical contact and advances; sexual favours; sexually coloured remarks; and showing of
pornography and other verbal and non-verbal conduct of a sexual nature that is unwelcome or
humiliating to the woman. The decision can be seen to have influenced our labour legislations
enacted in 2007, in particular Section 6 of the Employment Act 2007.
P O v Board of Trustees, A F & 2 Others (2014): the claimant and the second respondent left for
Swaziland through South Africa to attend a conference. He made sexual innuendoes, telling the
claimant he found her attractive, but she didn’t respond. The next day. He hired a car for a journey
during which he got angry with the claimant, saying he had spent a lot of money on her and
questioned why she had rebuffed his proposal for a romantic lunch. He hit he. He had booked a
room for the two of them, she slept on the floor. Two days later, she received a ticket to return to
Kenya while J went on to attend the conference. When J returned, he sent threatening emails to the
claimant and then her contract was terminated for her alleged misconduct in South Africa.
“The evidence of the Claimant convinces the Court J, at various stages of the employment
relationship, particularly in South Africa, directly or indirectly demanded for sex from the Claimant.
He let her know he had spent a lot of money on her, which was either an express or implied way of
saying he was according her preferential treatment or quid pro quo. He not only threatened her on
her employment status, but terminated her contract, and went on making demands and threats
after termination. He subjected her to physical behaviour of a sexual nature by booking a single
room for the two of them in South Africa. He not only physically beat her up, but presumably as a
prelude to the beating, nudged her. He says in one of his emails ‘okay sorry for the nudging.’ There
was a manifestation of physical behaviour, of a sexual nature. The Claimant clearly did not welcome
this behaviour. She rebuffed J 3 times, in Malaysia, Whistling Thorns and South Africa. The behaviour
was offensive and unwelcome, and had profound effect on the Claimant’s employment and job
satisfaction. She was denied the opportunity of attending a crucial International Conference, and
repatriated to Kenya. She was dismissed from employment, and continued to be threatened even
after employment by the 2nd Respondent. The 2nd Respondent acted contrary Section 6 of the
Employment Act 2007.”
NML v Peter Petrausch (2015): the claimant was employed by the respondent as domestic help. The
claimant stated that the respondent subjected her to unwanted sexual advances in the course of
employment, which advances she rebuffed, leading to the termination of her employment.
“On sexual harassment, the Claimant gave the following evidence: Petrausch patted her buttocks as
she cleaned and told her Africans were stupid; he called her a Stupid Monkey; he said Africans
overeat, and she had become fat; he touched her breasts, asking her if she had become pregnant; he
commanded her to bathe before she went into his house; he took video pictures of the Claimant as
she bathed; he demanded to have sex with the Claimant; he demanded she watches pornographic
movies with him; he covered his penis with a coffee cup after he had been served with coffee by the
Claimant and asked the Claimant to retrieve the cup from his covered penis; and finally Petrausch
asked the Claimant to watch him as he made love to his wife, so that the Claimant would know how
to do it, when madam Petrausch was gone…
The Claimant’s rights as a Domestic Worker were violated. Petrausch appears to have acted the way
he did against the Claimant, because he felt she was a mere Domestic Worker. He objectified her,
invading her body, by touching her buttocks as she cleaned his house, and touching her breasts. He
injured her inherent dignity and assaulted her modesty, by demanding the Claimant haves sex with
him; watches him mate with his wife so she could learn how to do it in the absence of his wife; and
by asking the Claimant to remove the coffee cup from his penis. She was all the more vulnerable
because of her gender, race and social standing.”
The Respondent’s actions and innuendos against the Claimant fitted the description of sexual
harassment from all angles. He directly and indirectly sought to have sex with the Claimant; he used
language and visual material of sexual nature; he subjected the Claimant to behaviour which was
unwelcome and offensive. He engaged in physical and psychological gender violence against the
claimant. She was awarded 1.27 million, her monthly salary was 10,000 shillings.