Lesson 8

Employment Laws and Gender

Equality in Kenya.
 Introduction
• Sex discrimination in employment is
prohibited in the work place.
• However, the reality is that discrimination
based on gender is a problem that is
particularly prevalent.
• Key areas of sex based discrimination include
the following,
1. Inequitable hiring.
 Cont
You apply for a job for which you have
experience and excellent qualifications, but
you are not hired because some of the
company's long-time clients are more
comfortable dealing with men or women.
2. Inequitable firing: you are told that you have
been laid off due to company cutbacks and
reorganization, while men in the same job and
with less seniority than you keep their jobs.
 Cont
3. Inequitable promotions, you have worked for your company for
several years, receiving exemplary reviews and an employee-of-
the-year award, yet each of the five times you have applied for
promotions, the positions you applied for are instead filled by less
qualified men. 
4. Pay gaps: You worked your way up from the position of cook's
helper to chef. A male chef with similar training and work
experience was recently hired, and you find out that he will be
paid more than you; you are a top salesperson for your company,
but are moved to a less desirable territory while a man with much
lower sales is given your territory and client base, enabling him to
make much more in commissions than you will make for several
years.
 Cont
5. Pregnancy discrimination: You work for a company for yrs and put in many
hours of overtime. After you return from having a baby, you tell your employer
that you will not be able to put in as many hours of overtime. Your position is
then changed to a lower level and you get less pay, while male coworkers in
similar positions are allowed to cut back their overtime hours for personal
reasons without any changes to their positions or pay.
• In the alternative you are denied annual leave because of maternity leave.
• You are paid less because you go home to breastfeed your baby yet the
company has failed to provide breast feeding space.

6. Benefits: Your company's health insurance policy does not cover your spouse,
because it is assumed that he will have his own benefits, while your male
coworkers have their wives covered by the policy. Because your husband is
between jobs, you have to pay increased health benefits on his behalf that your
coworkers do not pay for their wives.
 International law on gender equality in employment

UDHR Art 23 recognizes the right of every person to,

• Work,
• Freely choose employment,
• Just and favourable conditions of work
• Protection against unemployment
• Equal pay for equal work.
Article 7 of the ICESCR
Defines just and favorable conditions of work to include fair
wages and equal remuneration for work of equal value, safe
and healthy working conditions and equal opportunities for
promotion.
 Cont
• The Article emphasizes the principle of non
discrimination and particularly requires that women
be guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work.
• Article 10 of the ICESCR requires the widest possible
protection and assistance to the family. Special
protection should be accorded to mothers during a
reasonable period, before and after child birth. During
such period working mothers should be accorded paid
leave or leave with adequate social security benefits.
 Cont
CEDAW Art 11 requires state parties to eliminate discrimination against women in
employment in order to ensure equal rights with men. State parties are obligated
to guarantee rights such as,
• Same employment opportunities, including the same criteria for selection in
employment,
• Free choice of profession and employment, promotion, job security and all benefits
and conditions of service, right to receive vocational training.
• Equal remuneration including benefits and equal treatment in respect of work of
equal value,
• Right to equal treatment in the evaluation of the quality of work.
• The right to social security in cases of retirement, unemployment, sickness,
invalidity and old age and other incapacity to work, as well as the right to paid
leave.
• The right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction.
 Cont
• In order to prevent discrimination on grounds of marriage
and maternity, state parties are required to take
appropriate measures under the CEDAW to,
• Prohibit and impose penalties for dismissal on grounds of
pregnancy, maternity leave and discrimination in dismissal
on basis of marital status.
• Introduce maternity leave with pay.
• Provide support to enable parents to combine family
obligations with work responsibilities in particular through
promoting the establishment and development of a
network of child care facilities.
 ILO Conventions
• These are part of the International Laws on employment
• Since its founding ILO has adopted 14 Conventions specifically addressing
discrimination at work.
• Kenya ratified ILO Convention 100 on 7th May 2001.
• The Convention requires state parties to apply the principle of equal remuneration
for men and women workers for work of equal value. The Convention defines
remuneration as payment by an employer to the worker arising out of worker’s
employment.
• Kenya has not ratified C 171 on night work. The convention defines night work as
work performed during a period of not less than seven consecutive hours including
the interval from midnight to 5.00 am.
• A majority of countries restrict employment of women through employment laws.
• Restrictions include night work, employment in mines and jobs that require heavy
lifting.
 Cont
• Kenya rightly considers prohibition of women from night work
discriminatory. This enhances gender equality in access to employment in
that woman, just like men are able to undertake night work.
• Nigeria-No woman shall be employed at night except for nurses and those
in managerial positions.
• Senegal-The rest period for a woman shall be a minimum of 11 consecutive
hours. Who will hire her particularly in industrial undertakings, as nurses
etc)? Senegal justifies prohibition of night work for women on the grounds
of preservation of the family structure, values of society and protection of
women from psychological, security and health problems connected with
night work.
• Other countries point out that this helps to prevent the exploitation of
women as cheap labor and ease their double load due to work and family
responsibilities.
• C183 spells out the safeguards for the health of pregnant
women before and immediately after child birth. These
safeguards are also for the benefit of the unborn child
and those who are recently born. It provides for 4
months maternity leave, and additional leave in case of
pregnancy related illness. It safeguards women from loss
of jobs, or demotion based on pregnancy or child birth.
Though Kenya has not ratified C183, the Constitution and
the Employment Act have enshrined related protections.
• The treaties cited above apply to Kenya through Article 2
of the Constitution.
 Cont
• The Constitution of Kenya 2010 prohibits discrimination of both men and
women in Article 27. Sub Article (3) recognizes the equal rights of men and
women to opportunities in political, economic, cultural and social spheres.
•  
• The reference to appointive positions in affirmative action clause under Article
27(8) requires the employment of women including in professions traditionally
dominated by men and vice versa.
•  
• Article 232 of the Constitution, the values and principles of public service
include, affording adequate and equal opportunities for appointment, training
and advancement, at all levels of the public service, of men and women.
• This is in addition to various other Articles which require the equitable
employment of women in public service such as commissions. 248, Article 59,
Article 250
 The Employment Act 2006

• The Employment Act provides for gender equality in

employment in several respects. Sec 5 outlaws
discrimination in employment based on sex or pregnancy
interalia in policy or practice. The Act identifies areas in
which equality should be observed such as recruitment,
training, promotion, terms and conditions of
employment, termination of employment or other
matters arising out of the employment.
• The Act provides for affirmative action measures
consistent with the promotion of equality or the
elimination of discrimination in the workplace;
 Cont
• Most importantly the Act obligates employers to pay
employees equal remuneration for work of equal value.
• It is an offence for an employer to contravene these
requirements.
• The burden of proving non discrimination based on sex falls
on the employer and not the employee.
• The Employment Act requires special treatment of women
during pregnancy and child birth. Whereas different
treatment for all women and all men would amount to
discrimination, utero pregnancy and breastfeeding can only
be performed by women.
 Cont
• Wendy Williams in Equality’s Riddle: Pregnancy and The
Equal treatment/Special treatment debate says that, “A
law which requires the employer to give pregnant
women reasonable leave of absence, but requires no
leave for other employees places a woman on an equal
footing with men and permits males and females to
compete equally in the labor market. It does not
provide women with an additional benefit denied to
men, it merely prevents women from having to suffer
an additional burden which no male would ever have to
bear”.
 Cont
• The Employment Act under section 29 entitles a female
employee three months maternity leave with full pay.
• This falls short of the 4 months under ILO C183.
• C183 in any case allows a variation of its provisions after the
necessary consultations. Compare this with South Africa which
provides for 4 months and Seychelles 8 weeks which translates to
2 months. Is 12 weeks sufficient leave or unnecessarily long?
• On expiry of maternity leave, the female employee shall have the
right to return to the job which she held immediately prior to her
maternity leave or to a reasonably suitable job on terms and
conditions not less favourable than those which would have
applied had she not been on maternity leave.
 Cont
• Maternity leave should not disentitle an employee to other
leave such as sick leave, annual leave, and compassionate
leave provided consent of the employer is sought and
granted wherever necessary.
• The Act provides for a two weeks paternity leave with full
pay. The argument here could be that men also have a
responsibility towards the upbringing of the child and moves
away from traditional roles that perceive women as the
ones responsible for child rearing. Is two weeks sufficient?
Consider that a man needs to work and the same time
support the mother in the upbringing of the child.
 Cont
• The Employment Act protects men and
women from sexual harassment. Sexual
harassment can be used as a tool for
discrimination in areas such as equality in
pay, promotion, training etc. It can also lead
to outright dismissal.