Desperate, I agreed to sleep with my boss for a promotion. It was supposed to be a one-time thing. He said we should do it again a few months later, but I refused. He has threatened to give me a poor appraisal unless I give in to his demands. Isn't that blackmail? Can I sue him?
Favouritism, whether sexually induced or not, undermines the principles of competence, merit, integrity, equality, and transparency. It erodes the equal and affirmative employment opportunities that should be available to all. This issue underscores the pervasive discrimination within social and economic circles, where there is a constitutional obligation to uphold human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination, and protection of the marginalised. Every individual has the right to be treated equally before the law and benefit from its protection.
Sexually transmitted promotions at workplaces defy professionalism and instead entrench the exploitation of the marginalised by those in power and decision-making positions. Such incidents or occurrences depict an organisation that likely suffers from absence or inadequate policies, poor compliance and enforcement, or one soaked in a severe culture of impunity.
Section 6 of the Employment Act provides the premise that indicates sexual harassment as the scenario caused by an employer, their representative, or co-worker requesting directly or indirectly any form of sexual favor in exchange for preferential treatment at the workplace. In part, it adds, such favour could include a threat of detrimental treatment in employment and, similarly a threat to the future or present employment status of the victim.
Problems with safeguarding in any organisation are a clear sign of non-compliance with fair labour practices as outlined in Article 41 of the Constitution. Every employee should have the right to fair remuneration and reasonable working conditions.
A conducive working environment, which includes the presence of relevant and responsive policies, is crucial for ensuring equality, non-discrimination, and equity, especially in the context of affirmative action.
Some of the most significant organisational policies that should create and sustain employee and employer sanity and integrity include the human resource code of conduct should give the do's and don'ts to everyone within the work environment.
It should specifically provide mechanisms and processes for recruitment, promotion, and transition, whether through retirement or other aspects of personnel development. This should provide mechanisms through which an aggrieved employee could have their issue dealt with effectively.
The safeguarding policy should generally address the organisation's standards for causing and maintaining amiable work relationships, especially defining the limits of decision-maker powers. However, it must specifically provide a redress process, particularly a clear pathway of reporting and action, considering that most officials who threaten and intimidate others hold offices that influence organizational directions. The other is the diversity and equal employment opportunities policy, which aims to acknowledge the space of inclusion while providing transparency, accountability, and fairness standards regarding remuneration, treatment, discrimination, abuse, and harassment.
Section 6, sub-sections (2) and (3) of Kenya's Employment Act is specific for employers to implement a sexual harassment policy. It demands that an employer who employs twenty or more employees consult them or their representatives to issue a policy on sexual harassment. It further describes the important content that should constitute the policy document, such as a definition of sexual harassment, a declaration statement emphasising that each employee has a right to employment free of sexual harassment, as well as steps open to an employer in the event of an incident, exclusively providing a pathway of addressing reported complains, besides maintaining the confidence of the survivor.
On the strength of Article 27 (5) of the Constitution, it is wrong for any employer to discriminate against their employee, or for a person in a position of power to abuse their office through lenses of sex, gender, age, nationality, pregnancy, status of health and matrimony. If we import leadership tenets elaborated in Chapter 6 of the Constitution into this conversation, it is incumbent for any person in a position of power and leadership to be an embodiment of integrity.
Article 73 Clause 2 provides leadership's guiding principle, including selection based on personal integrity, competence, suitability besides objectivity, impartiality in decision-making, and ensuring that nepotism, favoritism, other improper motives, or corrupt practices do not influence decisions.
Various courts have provided decisions and directions on this matter. The case of SRM v GSS Limited and another give the readers the whole ambit of sexual harassment. In this matter, the court faulted the employer for dismissing a complainant without investigating sexual harassment claims against a top manager, which was provided in the organizational policy. This case reveals the significance of law, policy, and remedial mechanisms of any violation in case of an accusation.
