THE KENYAN EMPLOYMENT ACT, 2007 ITS ANGLE ON SEXUAL HARASSMENT.

THE KENYAN EMPLOYMENT ACT, 2007 

ITS ANGLE ON SEXUAL HARASSMENT

The Employment Act, 2007 (also known as the Chapter 226 of the Laws of Kenya) repealed the former Employment Act and the Regulation of Wages and Conditions of Employment Act Chapter 229 of the Laws of Kenya. This Act, whose commencement date was 2^nd June, 2008, provides for general terms and conditions of employment in Kenya and applies to both domestic and foreign contracts of employment.

 Sexual harassment is defined as unwelcome sexual nature, when submission to or rejection of such conduct is used as a basis for employment decisions affecting an individual or where such conduct has the purpose of affecting or  interfering unreasonably with the individual’s work performance or creating an offensive ,hostile or intimidating work environment.(Sexual harassment manual,1991).

The Kenyan industry is especially susceptible to incidents of sexual harassment due to certain characteristics. The most significant is that local industries attract and recruit employees with outgoing personalities, some of the unique characteristics include the high degree of social contact in the workplace, the unusual hours of work including long irregular hours involving evening and holidays and the involvement with a number of different people in the course of delivering the service.

 An important factor to be consider in determining whether a behavior can be sexual harassment is that what matters most is how the behavior makes another person feel. (Business and legal reports, 1998). According to the ministry of labor and social services, sexual harassment occurs when an employer or a co-worker:-

• Directly or indirectly request an employee for sexual intercourse
• Promise of preferential treatment in employment
• Threat of detrimental treatment in employment
• Use of language of a sexual nature.

2.2.2 Categories of sexual Harassment.

As defined by EEOC (The Equal Employment Opportunities commission)(1980) there are two different categories of sexual harassment. The first is quid pro quo harassment, which occurs when an individual’s acceptance of or rejection of sexual advances (accepts or rejects sexual advances that are made as a condition of keeping one’s position at work or to have a promotion granted. This type of harassment is defined as a ‘power game’ according to (Sherry, 1995).

The second type of sexual harassment is that of “hostile environment”. A hostile environment exists whenever employees are exposed to persistent and unwelcome remarks, sexual taunting in seductive tones, quarries about one’s personal life, suggestive sounds, obscene gestures, pinching, touching without the person’s authorization ( Sherry,1995).

The aspect of sexual harassment is critically captured and dealt with in Section 6 of the Employment Act which outlaws all forms of sexual harassment at places of works. This provision require every employer to take steps to ensure that no employee is subjected to sexual harassment of any form and take disciplinary measures as deemed appropriate against any of his employees who subjects another employee to sexual harassment. Further, under subsection (2) thereof, an employer who employs twenty (20) or more employees should in consultation with the employees or their representatives, if any, issue a policy statement on sexual harassment, which shall be brought to the attention of every person under the employer’s direction.

Further, under subsection (2) thereof, an employer who employs twenty (20) or more employees should in consultation with the employees or their representatives, if any, issue a policy statement on sexual harassment, which shall be brought to the attention of every person under the employer’s direction.

Implementation of a sexual harassment policy 

The mere presence of a policy does not ensure its effectiveness. A policy has to be effectively implemented in order to have value and to avoid becoming another well-formulated, impressive sounding document compiled by consultants and filed by the human resource department. The following guidelines are suggested for the effective implementation of a sexual harassment policy (Finnemore & Van Ransburg, 2002)

• Create awareness by including the policy in as many programs as possible, such as in orientation, education, training and diversity awareness programs. This will contribute to the creation of a culture where sexual harassment is not tolerated. Trade unions should be involved in every step of the implementation process.

• Communicate the policy to all employees at every level of the organization by providing each one with a copy of the policy and keep signatures on file that employees received the policy. This signature may prove vital in an organization’s defense against claims of vicarious liability.

• Conduct regular training sessions or workshops where the content of the policy and the complaints procedure are explained. “These training sessions should continuously reinforce the conditions that contribute to a harassment-free working environment and should familiarize or reacquaint each employee with their rights and responsibilities.” (Owens, Gomes & Morgan, 2004).

• Ensure that managers and supervisors are aware of their responsibility for implementing the policy and ensuring compliance.

• Provide specialized training for individuals who were assigned an official role in administering the organization’s complaint procedure.

Impact of sexual harassment?

Sexual harassment can have a negative effect on the individual, in both the short and long term. Those who have been harassed may experience illness, humiliation, anger, loss of self-confidence and psychological damage. Sexual harassment may also lead to workplace problems such as decreased performance, lower job satisfaction and higher absenteeism. In some cases, it may lead to resignation.

Observing someone else in the organization experience sexual harassment may also have a detrimental impact on an employee, by affecting their attitude towards work and even leading to psychosomatic problems.

If employees believe that sexual harassment is not being tackled in the organisation this may lead to decreased job satisfaction and poorer physical health. On the other hand, the investigation of sexual harassment complaints may cause serious divisions between staff. The presence of sexual harassment within an organization may damage business performance due to low morale, lost productivity, damage to reputation and public image, and the cost of any compensation awards to sufferers of harassment who have taken a claim to employment tribunal. It may also have an impact on employee turnover, particularly that of female employees.

Given its potential impact on the health of those who have been harassed and its contribution to work-related stress for those involved both directly and indirectly, sexual harassment is also a health and safety issue and has been recognised by the Health and Safety Executive as a potential health risk or hazard in organizations.

Summary

Studies have found that individuals have different perceptions of sexual harassment. For example, women are more likely than men to label certain behaviors as sexual harassment, similarly non-manual staff compared with manual staff. Behavior is more likely to be seen as harassment when there is a large power difference between the perpetrator and person they are harassing. their own experiences as sexual harassment. This is because they define such acts in terms of seriousness, and do not think their own experiences are serious enough. This is potentially problematic for research which seeks to clarify the prevalence of the problem.

Sexual harassment can have a negative effect both in the short and long term on those who experience it. They may experience illness, humiliation, anger, loss of self-confidence and psychological damage. It may also lead to workplace problems such as decreased performance and job satisfaction, absenteeism and, in some cases, resignation.

Observing sexual harassment can also have a detrimental impact on other employees and lead to negative feelings towards work plus psychosomatic problems. If employees believe that sexual harassment is not being tackled in the organization it may lead to decreased job satisfaction and poorer physical health. The investigation of complaints frequently causes serious divisions between staff.. Organizations may suffer the damaging consequences of sexual harassment through low morale, lost productivity, damage to reputation and to business performance.

There are also the costs of investigating complaints and of any compensation awarded to those who take a complaint to tribunal. In addition, it can have an impact on employee turnover, particularly that of female employees.

Evidence suggests that the most effective methods of dealing with sexual harassment are confronting and negotiating with the harasser (for example, asking them to stop, threatening or disciplining them), or by advocacy seeking (that is reporting the behavior, asking another person to intervene, or seeking legal remedy). The least effective methods of dealing with sexual harassment, although the most commonly used, are thought to be avoidance or denial.

 KENTON MARTIN