Sexual harassment is any unwelcome sexual behavior that makes someone feel uncomfortable, offended, or unsafe. It can be verbal, nonverbal, physical, or visual, and it can happen in a variety of settings, including the workplace, school, home, public places, and online.
Forms of Sexual Harassment
Sexual harassment is unacceptable in the workplace. It can be upsetting to individuals singled out for such treatment and to bystanders who may feel threatened, intimidated, upset, or otherwise negatively affected by such behavior.
Sexual Harassment includes but is not limited to:
- Physical conduct e.g. unwelcome physical contact including patting, pinching, stroking, kissing, hugging, fondling, or inappropriate touching.
- The use of job-related threats or rewards to solicit sexual favours.
- Verbal conduct and electronic media of any form e.g. comments on employee’s appearance, age, private life, etc.; sexual comments, stories and jokes, sexual advances, repeated and unwanted social invitations for dates or physical intimacy, insults based on the sex of the worker, sexual comments, etc.
- Non-verbal e.g. display of sexually explicit or suggestive materials, sexually suggestive gestures, whistling, etc.
- Use of language written or unwritten of sexual nature
- Unwanted, unwelcome, and unwarranted sexual advances, including, but not limited to, requests, comments, or innuendoes regarding sex, including sexual jokes, gestures, statements, or stalking;
The Employment Act, of 2007 mandates that every employer who has 20 or more employees is required to have a sexual harassment policy as held in the case of JWK v Multimedia University College of Kenya & another (Cause 2041 of 2012) [2019] KEELRC 3 (KLR) (4 December 2019). An employer must provide a safe, secure, and conducive working environment for all its employees, where the term employees include and extends to consultants, interns, and contractors.
The employer should treat any such incidents above seriously and shall promptly investigate all allegations of harassment. Any person found to have harassed another shall face disciplinary action up to and including dismissal from employment. Employers should train their employees on the parameters of the sexual harassment policy as held in the case of Lydiah Mongina Mokaya versus St. Leornard’s Maternity Nursing Home Limited [2018] eKLR.
The Employment Act further explains that a sexual offender will be charged with 3 years of imprisonment or payment of 100,000 shillings or more as a fine, be it a verbal or physical form of indecent behavior by a person in authority or co-worker; the act will be punishable if the alleged perpetrator is proven guilty. All complaints should be taken seriously and treated with respect and confidence. No one shall be victimized for making such a complaint. An employer is required to determine what constitutes sexual harassment based on a review of the facts and circumstances of each situation.
List of Statutes and Regulations relating to Sexual Harassment
- The Constitution of Kenya, 2010
- Sexual Offences Act No.3 of 2006
- Employment Act, 2007
- Children’s Act No.8 of 2001
- Penal Code, Cap 63 Laws of Kenya
- Victim Protection Act, No.17 of 2014
- Sexual Offences Regulations, 2008
- Sexual Offences (Dangerous Offenders DNA Data Bank) Regulations 2008
- Sexual Offences (Medical Treatment) Regulations, 2012
For any enquiries for a quote on developing a sexual harassment policy or any other matter do not hesitate to contact us via email through info@hrfleek.com.