Scared of female workmates? This is what counts as sexual harassment

Sexual behaviour, whether wanted or unwanted, is generally not a legal matter, rather, one of personal conscience based on individual values and moral perspectives.

Legislating morality is challenging because people hold vastly different views on what is moral. The claim that people are “walking on eggshells” is often overstated.

In reality, staff conduct in an organisation typically reflects the organisation’s culture and the clarity of guidance provided on what constitutes sexual harassment.

Legal statutes define sexual harassment by establishing clear standards that distinguish harmful conduct from non-harmful interactions.

The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) defines sexual harassment in Article 11 as encompassing unwelcome sexually determined behaviour, including physical contact and advances, sexually suggestive remarks, displaying pornography, and sexual demands, whether expressed through words or actions.

CEDAW is relevant here because Kenya’s Constitution, through Article 2, Clauses 5 and 6, binds the country to international laws and treaties it has ratified and, in some cases, domesticated. Kenya’s Sexual Offences Act (2006) defines sexual harassment as continuous unwelcome sexual advances, requests for sexual favours, or lewd verbal or physical gestures by someone in authority.

The Employment Act, Section 6(1), reinforces this definition and requires employers to prevent sexual harassment. Under this Act, sexual harassment occurs when an employer, their representative, or a co-worker directly or indirectly requests sexual intercourse, sexual contact, or any other form of sexual activity that: contains an implied or express promise of preferential treatment in employment: constitutes a threat of detrimental treatment in employment: threatens the employee's present or future employment status.

Subsection (b) expands this definition to include language of a sexual nature in any form, whether written or spoken. Subsection (c) addresses the use of visual material of a sexual nature or material depicting physical conduct of a sexual nature. Such material directly or indirectly subjects an employee to unwelcome behaviour that negatively affects their performance, job satisfaction, and general well-being.

The law requires employers to create an environment where sexual harassment is condemned and prevented. This requires implementing fundamental policies.

First, an organisation must establish and enforce a code of conduct within its human resources manual. Secondly, organisations should develop and adopt a sexual harassment policy that promotes a culture of respect, equality, equity, and non-discrimination free from gender or sexual biases and prejudices.

Regarding sexual harassment, the law imposes specific requirements on employers: foremost, employers must provide regular employee training on recognising and responding to sexual harassment.

Supporting staff capacity involves establishing secure, reliable reporting systems that cannot be easily compromised, such as hotlines and human resources portals.

Additionally, an investigation mechanism needs to be in place to ensure that investigations are carried out within 14 days, while victims or survivors are offered psychosocial support but protected from retaliation.

Nonetheless, any person accused of sexual harassment in the workplace must be afforded a fair hearing, as emphasised in Mbugua v Resort (Cause E096 of 2022), which references Section 41 of the Employment Act. When determining whether sexual harassment occurred, courts examine two key conditions.

Whether the victim’s job position, promotion, pay raise, workplace peace, or continued employment was conditioned on acceding to demands for sexual behaviour, and whether a hostile work environment existed that caused intimidation, humiliation, and discomfort for the victim.

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