Despite being qualified and having extensive experience, I have been repeatedly overlooked for promotion in favour of male colleagues in my workplace. I also face persistent sexist comments that create a hostile work environment. What are my legal options?
In Kenya, the right to non-discrimination is enshrined in several legal frameworks. The Constitution guarantees equality and freedom from discrimination, affirming that every person is equal before the law and has the right to equal protection and benefit of the law. Importantly, Article 27 specifically states that “women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.”
Further, the Employment Act protects employees, including women, from discrimination in the workplace. This law explicitly prohibits discrimination on the grounds of sex, race, colour, religion, political opinion, nationality, ethnic origin, social origin, disability, pregnancy or HIV status. It further requires that employers promote equal opportunity and eliminate any form of discrimination in employment policies and practices.
In your case, being overlooked for promotion in favour of male colleagues without any justifiable reason is a form of gender-based discrimination, which is prohibited under this law. Moreover, the Employment Act prohibits an employer from discriminating directly or indirectly against an employee in respect of recruitment, training, promotions, terms and conditions of employment, or other matters arising out of employment. This provision would be particularly relevant in your case, as failure to promote based on gender would likely constitute direct discrimination.
The sexist comments fall under sexual harassment as defined in the Employment Act. The law mandates that employers have a policy on sexual harassment if they employ 20 or more employees. The definition of sexual harassment in this context includes any unwanted conduct of a sexual nature that creates an intimidating, hostile, or humiliating environment for the victim. Even subtle comments that degrade or undermine you because of your gender may qualify as a form of harassment.
You have several options available. It is expected that the employer should have established procedures for addressing grievances related to harassment or discrimination. I would advise you to make a formal complaint with your human resources department. If these administrative processes do not yield satisfactory results, you have the option of taking legal action in the Employment and Labour Relations Court. You would need to provide evidence of discrimination, such as performance reviews or documentation of promotions given to less qualified male colleagues.
I, therefore, recommend documenting all incidents carefully and exploring both internal and external avenues for resolving the issue. I also encourage you to consult with a lawyer who specialises in employment law if you decide to pursue legal action, as they can guide you through the process more effectively.
The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).
