Can a consensual workplace relationship become sexual harassment? Here are court lessons
Can a consensual sexual relationship between two employees amount to sexual harassment?
What you need to know:
- A landmark Employment Court ruling explains when a consensual workplace relationship may become sexual harassment and where employers must draw the line.
- The judgment highlights the legal distinction between workplace romance, abuse of power and sexual harassment while reinforcing employees' privacy rights.
On March 16, 2021, a former regional operations manager moved to the Employment and Labour Relations Court in Nairobi, seeking redress after his contract was terminated on 22 December 2020.
He argued that his contract had been unfairly and unlawfully terminated over allegations that he had sexually harassed a junior employee, who worked as a security guard.
Sexual harassment or consensual sexual relationship?
At the centre of the dispute was whether the relationship between the two employees amounted to sexual harassment or was a consensual sexual relationship.
The junior employee was also dismissed after the employer found that she had knowingly engaged in a sexual relationship with the manager for personal gain and had provided false information that he had fathered her child.
According to the court record, the guard reported the matter to the employer’s Human Resource Director on September 4, 2020. She said she had been in a sexual relationship with the manager in 2016 and 2017 and alleged that he had fathered her daughter but had declined to provide child support.
The employer launched investigations, during which both the manager and the guard admitted that they had been in a sexual relationship. However, the guard’s testimony before the disciplinary committee raised questions about whether the relationship amounted to sexual harassment.
“M (as identified in the court documents) states that she would not say that she was sexually harassed by the Claimant (the dismissed manager). This would be harsh. She would not wish to lie. She was not a married woman at the time she met the Claimant. She states that she liked the Claimant as a boyfriend and only ended the relationship in 2019 because her love for him died,” the court documents read.
The employer nevertheless argued that some of the manager’s conduct amounted to sexual harassment, including his repeated offers to give her lifts and his attempts to contact her through colleagues when her phone was switched off.
The court record also shows that the employer found that the guard had knowingly engaged in a sexual relationship with the manager for personal gain. The employer further maintained that she had used her position as his sexual partner to pressure him to facilitate her transfer to Thika.
The dispute became more complicated after the guard claimed that the manager had fathered her daughter and sought child support. “He was compelled to go for DNA testing by the Respondent (employer), when M claimed child support from him,” the court documents state. The DNA test result was negative.
What the court found
In its judgment delivered on September 20, 2024, the Employment and Labour Relations Court found that the employer had failed to clearly distinguish between a consensual sexual relationship and sexual harassment.
“The accusation against the Claimant was that he engaged in a sexual relationship with the Claimant, which was deemed inappropriate, and therefore in the province of sexual harassment,” the court observed.
“The Respondent appears not to have drawn the line, and fully appreciated the difference, between a sexual relationship, and sexual harassment. Not every sexual relationship at the workplace, results in sexual harassment,” it said.
The court noted that workplace relationships may arise where employees of different genders, or the same gender, work in the same environment. It also acknowledged that workplace romance can raise complex legal questions about the extent to which employers may regulate relationships between employees.
The court said employers should be cautious when interfering with workplace relationships because such interference could amount to an invasion of employees’ privacy rights. It referred to the US Supreme Court decision in Lawrence v Texas [539 U.S. 558 [2003]], which recognised the right of consenting adults to engage in private sexual activity.
It also cited the California Court of Appeal decision in Barbee v Household Automotive Finance Corporation [113 Cal. App. 4th 525 [2003]], which held that an employee may have a legally protected right to pursue an intimate relationship at work. “Workplace romance may even strengthen the employer's business, if it blossoms and results in a family,” the court said.
However, the court cautioned that a consensual workplace relationship could develop into something harmful or abusive. “The danger for employers appears to be where a sexual relationship morphs into something else, less romantic,” it said.
“What begins as a beautiful workplace romance may transform into an abusive relationship, where for instance, one partner demands for work-related favours from the other, in order to continue with the romance.”
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In this case, the court said it was “left in perplexity” over the employer’s conclusion that the dismissed manager had engaged in sexual harassment. “In the view of the court, there was evidence of sexual relationship between the Claimant and M,” it said.
The court found that the employer had not provided convincing evidence that the sexual relationship had developed into sexual harassment.
“There was no convincing evidence, that the sexual relationship, morphed into sexual harassment …. A sexual relationship for personal gain, and a false allegation that the Claimant fathered her child, are classic cases of the Lady sexually harassing the Man,” the court concluded.
The court concluded that the termination was unfair because there was no valid reason for it. The manager was awarded compensation equivalent to 12 months’ salary.
Can you claim sexual harassment after a consensual workplace relationship?
Judith Guserwa, managing partner at J.A. Guserwa & Co. Advocates, said that where a workplace relationship began consensually, the court would examine the history and circumstances of the relationship before determining whether sexual harassment had occurred.
Judith said the court would consider how the relationship began, how the parties interacted and why a complaint was raised at a particular point. “You see, when she agrees that the relationship was consensual, but when the man could not increase her salary or give her a promotion, she then claims that it was sexual harassment. That is wrong and not true,” Judith said.
She added that a person who had participated in a consensual relationship could not simply reverse the narrative and make an allegation without the court considering their role in the relationship.
“The court will just reject the application,” she said. “Your application is of no consequence because you are part of this whole process from here to where it is now.”
