Corporate Culture: Sexual Harassment as a Genre of Discrimination

Judicial Precedents: News Alert on Sexual Harassment

Hostile Environment Sexual Harassment

Sexual Harassment involves activities such as verbal or physical abuse of a sexual nature and is not limited to lewd remarks, salacious looks, and unwelcome touching. Sexual Harassment before an Employment and Labour Relations Court is addressed based on the balance of probabilities compared to the Criminal Proceedings that require Proof Beyond Reasonable Doubt.

What constitutes sexual harassment

In certain instances, Court will only require one to establish that the offender’s conduct was sexual in nature, the intention or effect of that sexual conduct was steered towards violating the victim's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment – and whether it occurred because a victim rejected unwanted conduct.

To understand the victim's case, one must consider the victim's position under those particular circumstances. It is important to understand that lack of intent to sexually harass a person is not a defense. In Ooko & another v SRM & 2 others (Civil Appeal 195 & 197 of 2019 (Consolidated)) [2022] KECA 44 (KLR) (4 February 2022) [2022] KECA 44 (KLR), the Honourable Court stated as follows:

It was further held in that case that the words or conduct complained of must be unwelcome to the victim, and it is for the target to decide what is acceptable and offensive. Therefore, the question of what constitutes unwanted conduct is not what the court or tribunal would or would not find offensive but whether the individual victim has made it clear that he or she finds the conduct unacceptable.

The Court of Appeal provided that a single incident of sexual harassment is good enough to amount to an act of unlawful sexual discrimination.

Information derived from Ooko & another v SRM & 2 others (Civil Appeal 195 & 197 of 2019 (Consolidated)) [2022] KECA 44 (KLR) (4 February 2022) [2022] KECA 44 (KLR)

Parting Shot

Corporate Culture is influenced by various factors, which include the paperwork in place as company policy and the individual culture introduced to the company based on the multifaceted cultural background. Therefore, other than appreciating the key factors that make people different, corporate entities should strive to focus on developing a sexual harassment policy – and activating the policies – that will build a unique culture that reduces cases of sexual harassment, which in the long run will help in reducing chances of being linked to sexual harassment-related disputes.

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