What does a sexual harassment policy entail?

Dear Vivian,

I am a managing director of a communications company in Makueni. I have 25 employees, with a significant number being women. Recently, I have been receiving anonymous complaints from female employees regarding sexual harassment. We have decided to develop a sexual harassment policy. How do we go about it?

Michael Mutisya,
Makueni

Dear Michael,

Sexual harassment is a bitter reality that continues to plague both public and private spaces. Companies with more than 20 employees are required, under the Employment Act, to develop a sexual harassment policy.

Many institutions are non-compliant with this requirement because courts cannot proceed on their own motion to impose sanctions. The policy should indicate that everyone is entitled to employment that is free of sexual harassment. It should assure the employees that the employer shall ensure none of them is subjected to the vice and that the employer shall take disciplinary measures against this offence.

Importantly, the policy should explain how complaints may be brought to the attention of the employer and assure that the employer will not disclose the name of the complainant. The policy should then be validated by company employees.

Sexual harassment policies often fail to achieve the intended purpose because of long reporting and investigation periods. In many instances, victims get fatigued with follow-ups on the status of the investigation. The policy should, therefore, indicate the expected period of investigation and turnaround of the findings.

As you develop the policy, I caution that sexual harassment challenges are often a function of the power relations in the employment setup. For example, in the Kenyan case of P O v Board of Trustees, AF & 2 Others [2014] eKLR, it was found that an individual is more prone to sexual harassment where there is a significant hierarchical power difference between such individual and the harasser. In this case, it was established that sexual harassment is an occupation health and safety issue under Section 8 of the Occupational Health and Safety Act.

Finally, the courts in Kenya have pointed to a positive obligation on the part of the employer to follow through with a sexual harassment complaint and ensure the offence is eradicated, redressed and does not occur again. This finding has been regarded as the duty of an employer after receipt of a complaint on sexual harassment.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).