SEXUAL HARASSMENT – KNOW YOUR RIGHTS

SEXUAL HARASSMENT – KNOW YOUR RIGHTS

“Hi, dear?”, “You look sexy today”, “Nice legs”, “Nice body”, “If you want a promotion to let’s have dinner”. Do you hear these kinds of statements or a wink, a touch of hair, cat call at the workplace? This amount to sexual harassment and is illegal under section 6 of the Employment Act.

Many women and men at the workplace may not even recognize Sexual Harassment as it has been normalised.  Actions that are considered ‘normal’ or usual are actually sexual harassment.  Moreover, an employee is protected by the Law and can sue and get some compensation or damages.

What is Sexual Harassment:-

When an employer, management or co-worker at work directly or indirectly requests an employee for sexual intercourse, sexual contact or any other form of sexual activity with an implied or express promise for preferred treatment, the threat of elemental treatment or threat about the present or future employment status this is Sexual Harassment.

This includes when an employer or co-worker uses language whether written (including SMS or WhatsApp) or spoken of a sexual nature.

Further when an employer or co-worker uses statements of a sexual nature.  This includes forwards, photos, lewd T-Shirts etc.

Furthermore when an employer or co-worker shows physical behaviour of a sexual nature which is unwelcome or offensive and by its nature has a detrimental effect on that employee’s job, performance or job satisfaction.  This included touching, grabbing ad gestures of a sexual nature.

From the above definition, many of us suffer sexual harassment at the workplace.

What can you do about it?

Finally, Every organisation with more than 20 employees is required to have a policy on sexual harassments which includes a neutral confidential reporting system. After reporting there should be disciplinary measures taken.

The first step is to report, thereafter go through the hearing and eventually, the perpetrator will be disciplined.

You also have a right to file a Police for sexual assault and/or case in court for damages.  This usually occurs where no action is taken by the Employer.

To file a case you are required to prove:-

  1. That there was actually sexual assault/ harassment i.e prove the words, act, promise or negative impact of such action
  2. That there was no proper complaint system
  3. No proper hearing was conducted
  4. You were terminated unfairly and without reason (usually, people who complain are terminated)
  5. That you suffered unfair treatment, disregard of human dignity as set out in Article 28 of the Constitution

The courts have made decisions in favour of the employees especially where there is no policy or complaint disciplinary system.  Where the victim is terminated for no proper reasons required in the Employment Act.

In able care of JWN VS SECUREX AGENCIES (L) LTD E&L NO.1979 OF 2015, the victim a security guard claimed sexual harassment and was awarded Kshs.1,000,000 for injury to her dignity, feelings and self-respect.

In the case SM VS G4S civil case 359/2002 she was awarded Kshs.35million for wrongful termination following a complaint of sexual harassment.

You also have a right to report to the Police a Sexual Act under Section 23 of the Sexual Offences Act.  In this case, the perpetrator can get a file of Kshs.1,000,000 or jail for 3 years.

POWER VS SEX

Sexual harassment is generally about power more than sex.  The person in POWER uses their position to seduce or threaten the victim. The victim feels, powerless because of the threat to their employment and social stigma.

The ME TOO movement in the USA and other countries has exposed the rampant occurrence of Sexual harassment at the workplace. Many brave women came forward against high profile persons (like Bill Cosby and Harvey Weinstein.)

Sadly, the victims are now speaking out decades after the assault to place.  (Including our own) (Lupita Nyongo). The social stigma and fear of the negative impact on the carrier was the main reason the perpetrators had POWER.

CONCLUSION

Employees need to know their rights and enforce their rights through complaints file and proceedings in court.  We should no longer be afraid as there are adequate laws and the court is there to protect human dignity even at the workplace. NO ONE deserves to be harassed whether sexually or otherwise. NO ONE deserves to live in fear of sexual advancements/harassment at the workplace.

Employees must put in place the Sexual harassment policy and protect their employees from these negative acts. This helps to create a good, productive workplace and also to avoid huge damages claims.

 

LAWQUERY

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