A Critical Review of the Unwelcome Element in the Determination of Sexual Harassment in Kenya: Guidance From South Africa

Abstract

Sexual harassment in the workplace is a burning issue, both in Kenya and South Africa. Both Kenyan and South African labour laws outline the specific elements or prerequisites that must be met for the conduct of the harasser to be considered sexual harassment. One such element is the presence of unwanted or offensive conduct by the harasser. Nevertheless, in Kenya, enforcing this element is still challenging, and there has been a lack of uniformity in the courts over whose viewpoint should determine if the behaviour is unwanted or offensive – that is, whether from the harasser’s or the complainant’s perspective. This issue is exacerbated by a lack of extensive research in Kenyan employment law on this element. This article presents a critical analysis of the “unwelcome or offensive” element in determining cases of sexual harassment in the Kenyan employment setting using lessons from South African legislation. The results from the analysis indicate that in the Kenyan context harassers often employ this element as a defence to argue that the complainant’s behaviour, if examined carefully, demonstrates their acceptance of the harasser’s conduct. In essence, this leads courts to scrutinise the behaviour of the complainant for any slight indication that the conduct was unwelcome. The underlying implication is that the complainant is subjected to a trial-like process, diverting attention away from the conduct and behaviour of the alleged perpetrator of the sexual harassment. In navigating such sensitive terrain, there is a need for the Employment Act to be amended and to consider adopting similar tests to those in the South African 2022 Code of Good Practice on the Prevention of Elimination of Harassment in the Workplace.