Jacqueline Mugo

31 August 2010

opinion

The promulgation of a new Constitution undeniably amounts to a rebirth for Kenya.

Hopefully, the high spirits with which we have welcomed the renewed state will permeate all sectors and in that process, cleanse institutions of negative deeds. The search for a new constitution involved a long drawn struggle and determination.

That spirit is admirable, and is the kind we need to flow into work-places to slay one animal that has particularly been difficult to eliminate -- Sexual harassment.

The law is against it, but somehow, stories of people being promoted through sexual favours or punished through stagnation, demotions, sackings or being denied employment outright for not yielding to sexual advances, abound. The reason these things continue to happen is the lack of resolve on the side of employers -- who don't have or fail to implement policies on sexual harassment -- and of employees who don't report cases of harassment or even actively engage in it.

As we turn a new leaf in generally high spirits, it could be the time employers came down very hard on individuals who harass others sexually in circumstances related to work. The first step is to appreciate what the law says about sexual harassment at the workplace. Section 6 of the Employment Act 2007 defines what constitutes sexual harassment and gives guidance on the steps to take towards stopping the vice.

In brief, it states that an employee is sexually harassed "if the employer or a representative of that employer or a co-worker" directly or indirectly solicits for a sexual activity in exchange for a promised or implied "preferential treatment in employment", or under a direct or implied threat of repercussions should the employee reject the sexual advances.

Sexual harassment also occurs when the language used to communicate to another is of sexual nature, whether written or spoken.

The definitions don't end there. When an employer or a representative of the employer or a co-worker "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", that also amounts to sexual harassment.

The last two definitions introduce a new dimension to sexual harassment in which it doesn't have to involve a promise to some favour or a threat for it to be an actionable offence.

For example, an employee who shares pornography material through email or via any other medium to another of opposite sex, could create discomfort, particularly if the recipient does not approve of such behaviour. That in itself is already sexual harassment.

To a lot of women, this would be uncomfortable, and amount to an indirect sexual harassment. Also, employees who dress and the carry themselves around the office in manners that provoke others sexually could be accused of harassment. It is important to that these definitions are understood because they inform the constitution of company policy against sexual harassment.

This document key in seriously dealing with the vice. If you are an employer of 20 or more people, the law demands that you put in place a policy against sexual harassment. Still, there is no harm in having one in place even with fewer employees.

According to the Employment Act, the development of the policy statement has to be consultative, meaning that employees or their representatives should participate. This is a good starting point because it takes into consideration the perspectives of all the participants in the workplace.

Section 6 (3) of the Employment Act then provides guidelines on the content of the policy statement on sexual harassment. It advises that the document must include the definitions of sexual harassment as provided for by law. It should state that each employee is entitled to a work environment that is free of sexual harassment.

It is important that the policy also outlines the disciplinary action that will be taken against any individual who subjects another to sexual harassment at the workplace or in matters related to work.

Great importance

Confidentiality is of great importance in this matter, and the policy statement, according to the Employment Act, has to indicate 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 investigation or taking disciplinary measures in relation thereto."

Once the policy statement on sexual harassment is in place, it is a required that the employer brings it to the attention of "each person under the employer's direction". Then, any individual who goes against it will be knowingly flouting the rules, and will have to therefore face the defined penalties.

Mugo is the Executive Director of the Federation of Kenya Employers