GENDER IN THE WORK PLACE
Work can be defined in various ways. It is the exertion or effort directed to produce or
accomplish something. It can also be defined as something on which exertion or labour is
expended; a task or undertaking, or an operative or productive activity. In addition to that,
work is employment, as in some industry, especially as a means of earning one’s livelihood. The
work place is one’s place of employment.
The labour force is defined in economics as all members at the working age population who are
either employed formally or are seeking or awaiting formal employment. The labour force
consists of the employed of the employed, the marginally employed, and the would-be
employed and certainly not those who work in the informal sector or who work as house wives.
There are several provisions that ensure that there is no discrimination in the work place in the
work place. These include the International Labour Organization, the National Gender and
Equality Commission Act No 15 of 2011, the Employment Act, the Universal Declaration of
Human Rights, the Protocol to the African Charter on Peoples and Human Rights on the Rights
of Women in Africa and the Convention on the Elimination of All forms of Discrimination
Against Women.
The International Labour Organization Convention on Discrimination 1958 defines
discrimination as any distinction, exclusion or preference on the basis of race, colour, sex,
religion political opinion, national extraction or social origin which has the effect of nullifying or
impairing the effect of equality of opportunity or treatment in employment or occupation. The
Convention obliges member states to declare and pursue a national policy designed to promote
methods, appropriate national conditions and practices, and equality of opportunity and
treatment. In addition to that, states should repeal any statutory provisions and modify any
administrative instructions or practices which are inconsistent with the policy. They must also
prepare annual reports on measures taken to ensure observance of the anti-discrimination
policy.
Gender is defined in the National Gender and Equality Commission Act No 15 of 2011 1 as the
economic, social and cultural attributes and opportunities associated with the being male or
female. The Act regulates the functions of the National Gender and Equality Commission which
has the mandate to ensure that there is adequate gender mainstreaming which is defined in
Section 2 of the Act as the equitable distribution of resources, opportunities and benefits of the
mainstream development process through the integration of equality concerns in the
formulation and analysis of policies, programs and projects in order to ensure that they impact
positively on both men and women in bridging gender disparities.
Section 5 2 formulates the functions of the Commission with the main function being to promote
gender equality and equity generally and coordinate and facilitate gender mainstreaming in
national development.
Section 5 (d) 3 obliges the National Gender and Equality Commission to initiate, lobby and
advocate for legal reforms on issues affecting women, and to formulate laws, practices and
policies that eliminate all forms of discrimination against women and all institutions, practices
and customs that are detrimental to their dignity.
In reference to gender issues in the work place, the Commission has the duty to initiate
proposals and advice on the establishment and strengthening of institutional mechanisms
which promote gender equity and equality in all spheres of life, and, in particular, access to and
benefits in education, healthcare, nutrition, shelter, employment and control of economic and
national resources. 4
Chapter 226 of the Laws of Kenya 5 covers discrimination in employment as general principles. It
obliges the Minister for Labour, Labour Officers and the Industrial Court to promote equality in
order to eliminate discrimination in employment. Section 5 (3) provides that no employer shall
discriminate directly or indirectly against an employee on the grounds of race, sex, colour,
language, HIV/AIDS status, religion, inter alia.
Sexual discrimination is generally the most common type of discrimination and usually in
practice the discrimination is against women although in reality it is equally unlawful to
discriminate against men. The test for determining whether an act amounts to discrimination is
objective and not subjective. The question is whether the employee would have received the
same treatment from the employer but for his/her sex. Discrimination may be direct or indirect.
Direct discrimination arises when a person of one sex is treated less favourably than a person of
another sex and the sex of that person is the reason for the unfavourable treatment. For
instance, to refuse to employ a woman because it is a man’s job.
Indirect discrimination occurs when a person applies a condition or requirement to another,
but which is such that the proportions of the persons from one sex who can comply with that
condition or requirement is considerably smaller than that of the other sex. For example, to
advertise for a female or male clerk who must have a large beard would amount to indirect
discrimination to the female because women normally don’t have beards.
In order to ensure that there is no sexual discrimination in the work place, the arrangements a
person makes for the purpose of determining who shall be employed should not be
discriminatory. In this case, advertisements must ensure job opportunities are available to all
irrespective of sex. Questions which are asked at interviews are part of the employment
arrangement and therefore they should not be discriminatory. It may also amount to
discrimination in the way a person offers access for opportunities with regard to promotion,
transfers, training and other benefits. The employer should therefore ensure that these
opportunities are available to all employees irrespective of their gender.
Men and women should receive equal pay for equal work, i.e. if they are employed in the same
equality clause. Such a clause should operate when a man or woman is employed in work which
is the same or broadly similar, work which has been rated as being equivalent under a job
evaluation scheme and work which is of equal value in the same employment. A woman’s work
is considered to have been rated equivalent to that of a man if it has been given equal value
under properly conducted job evaluation scheme in terms of different demands upon an
employee, for instance effort, decision making and skill.
In the international realm, the right to work is fundamental. The Universal Declaration of
Human Rights 6 provides that everyone has the right to work, to free choice of employment, to
just and favourable conditions of work and to protection against unemployment. In addition to
that, every one without discrimination has the right to equal pay for equal work. Everyone who
works has the right to just and favourable remuneration ensuring for himself and his family an
existence worthy of human dignity and supplemented if necessary by other means of social
protection. Everyone has the right to form and join trade unions for the protection of his/her
interests. The Declaration uses the word everyone which denotes each and every person
despite their gender.
In the primitive society, the woman has been treated as a tool in the kitchen room and toy in
the hands of her husband. However, today, the status of the woman has been uplifted through
a variety of legislations conferring various rights and privileges upon women. As such, the
United Nations General Assembly adopted a Declaration on the Elimination of Discrimination
Against Women, and in order to implement the principle set forth in the Declaration, a
Convention 7 was adopted on December 18 1979.
The Convention defines “Discrimination against Women” as any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their material status, on the basis of equality of men and women, or human rights and fundamental freedoms in the
political, economic, social, cultural civil or any other field.
Article 5 8 obliges state parties to modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices & customary and all other
practices which are based on the idea of the sexes or on stereotyped roles for men and women.
In this case, customary practices such as the idea that the woman’s place is at home should be
abolished since they amount to discrimination against women. The women should be seen as
having the same potential as men to engage in other fields of work for the development of the
nation.
Article 11 9 provides that women and men should be granted equal opportunities in the field of
employment. The state should therefore enact legislation to ensure same employment
opportunities, including the application of the same criteria for selection in matters of
employment, free choice of profession and employment, promotion, job security and all
benefits and conditions of service and vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training. In addition to that, the
piece of legislation enacted should include the right to equal remuneration, including benefits,
and to equal treatment in respect of work of equal value, as well as equality of treatment in the
evaluation of the quality of work, the right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity to work, as well as the
right to paid leave and the right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
Article 14 10 requires the state to protect the rural women from problems faced by them and
ensures economic survival of their families including their work in the non-monetized sectors of
the economy, and to take all appropriate measures to ensure the application of the provisions
of the present Convention to women in rural areas. Appropriate measures should be taken to
eliminate discrimination against women in rural areas in order to ensure, that both men and
women, participate in and benefit from rural development on a basis of equality.
In particular, women should have the right to obtain all types of training and education, formal
and non-formal, in order to increase their technical proficiency, to organize self-help groups
and co-operatives in order to obtain equal access to economic opportunities through
employment or self employment, to participate in all community activities and to have access
to agricultural credit and loans, marketing facilities, appropriate technology and equal
treatment in land and agrarian reform as well as in land resettlement schemes.
The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa provides at Article 13 (a) that state parties shall guarantee women equal opportunities to
work by promoting equality in access to employment, equal remuneration for jobs of equal
value for men and women. In this regard, there should be transparency in the employment and
dismissal relating to women in order to address issues relating to sexual harassment in the
work place and freedom to choose their occupational, and protect them from exploitation by
their employers. This is because sexual harassment is a major problem faced by women in the
work place. Under Section 6 (1) 11 sexual harassment is prohibited. Sexual harassment occurs
when the employer or any other person in the organization directly or indirectly requests for
sexual intercourse, sexual contact, or any other form of sexual activity that contains an implied
or express promise of preferential treatment, threat of detrimental treatment or threat of the
present or future treatment of the employee.
Moreover, it amounts to sexual harassment if the employer or any other person in the
organization uses language whether written or spoken of a sexual nature, uses visual material
of asexual nature or shows physical behavior of a sexual nature which directly or indirectly
subjects the employee to behavior that is unwelcome or offensive to that employee and that by
its nature has detrimental effect on that employees employment, job performance or job
satisfaction.
It is therefore a requirement to all employers to issue a policy statement on sexual harassment
after consulting with the employees or their representatives. 12 The policy statement should
contain a statement that every employee is entitled to employment that is free from sexual
harassment and disciplinary measures that the employer should take against any person who
subjects any employee to sexual harassment. 13
The state should also create conditions to promote and support the occupations and economic
activities dominated by women, in particular, within the informal sector and encourage the
establishment of a system of protection and social insurance for women working in the
informal sector. In addition to that, there should be introduction of a minimum age of work and
prohibition of children below that age from working, especially the girl-child. The state should
also take the necessary measures to recognize the economic value of the work of women in the
home, guarantee adequate pre and post natal maternity leave and ensure equality in taxation
for men and women. There should be recognition for the right of salaried women to the same
allowances and entitlements as those granted to salaried men for their spouses and children.
REPRESENTATION OF WOMEN
In the countries that claim to the title of democracy, women have enjoyed many decades of
formal equality, sharing with men the right to vote, to stand in elections or to compete for any
office in the land. There has been a remarkable consistency in the figures for female
participation in national and local politics.
By 1983, women representatives had captured 13% of the seats on West German local’s
councils; 14% on the French conseils municipaux; 14.4% on county councils in England and
Wales; 11.1% on regional councils in Scotland; and 7.9 % on district councils in Northern Ireland
(Lovenduski 1986). By 1985, women made up 14% of the membership of municipal and
township governing boards in the United States, but had been elected to mayor in only four of
the hundred largest cities. The numbers rise only where the power of the office is less. There
are more men than women in politics.
As with many feminist demands, the case for greater parity in politics has been made in three
ways. To begin with, part of it relies on the notion of basic justice and fits within a broad sweep
of arguments that challenges sexual segregation wherever it occurs. Just as it is unjust that
women should be cooks and not engineers, typists but not directors, so it is unjust that they
should be included from the central activities in the political realm; indeed given the
overarching significance of politics, it is even more unfair that women should be kept out of
this. Women’s organizations have combined the case for justice with at least one additional
point. This argument therefore calls o us to eliminate or moderate whatever obstacles we find
to women’s participations.
The second argument is that women would bring into politics a different set of values,
experiences and expertise and would enrich our political life, usually in the directions of a more
caring, compassionate society. The sexual differentiation in conditions and experiences has
produced a significantly different woman’s point of view, which is either complementary or
antagonistic to the man’s. Therefore, any system of representation which consistently excludes
the voices of women is not just unfair, but it does not begin to count as representation.
The near universal practice of electing representatives according to geographical constituencies
suggests that those elected are meant to speak for an area or a place, the implications being
that interests are relatively homogeneous within localities, but potentially at odds between
them. Whether the representatives are male or female would then be deemed irrelevant,
though where there are concentrations of rich or poor, or areas populated by particular racial
or religious groups, the class, race or religion of the representative might well be seen as
important.
Edmund Burkes 14 argued that representatives should serve not local interests but the nation,
and should therefore be free to exercise their own judgment on political affairs. Here, too, sex
is out of picture, or perhaps, more precisely, enters to the disadvantage of women. The
Burkean representative is a man of honour, integrity and breadth of vision. What matters is
that he should be ‘better’ than the voters who put him there.
When issues of gender have entered into party programs, there is no explicit presumption
among either radicals or moderates in favour of either sex. The fact that most of the elected
turn out to be men might be noted or deplored, but it is the ideas not the people that count.
The dominant practice in most contemporary democracies is a muddled combination of both
accountability and autonomy. Our representatives are said to represent our views, but only in
the vaguest of ways. Those elected are seen as carrying some responsibility for the area, but
are not permitted to take this too far, for they are ultimately bound by party lines. On any of
the major social or demographic characteristics (age, race, sex, class) they do not represent us
at all. For instance the British Parliament: lawyers make up the largest single occupational
group; women have only just pushed beyond 5% of the total; and the proportion of the
population that is non-white is currently ‘represented’ by a mere handful of MPs, whose
election in 1987 marked the first substantial breach in the white monopoly.
The obstacles that deny certain people the chance of election are as undemocratic in their ways
as the laws that once excluded them from the right to vote. While we may all be capable of that
imaginative leap that takes us beyond our own situation, history indicates that we do this very
partially, if at all. Those who regard the current situation with complacency are not too far in
spirit form the 19 th century apologists of male suffrage, who claimed that a man spoke for
himself, and ‘his’ woman, and thus that the woman had no need for a separate voice. Where
there are different interests and different experiences, it is either naïve or dishonest to say that
one group can speak for us all.
The strongest conclusion, particularly where the argument is based on the conflicting interests
of women and men, is that there should be women representing the interests of women,
workers representing the interests of workers, black people representing the interests of black
people and so on. This is referred to as group representation.
There are no geographical forms that could form the basis for ‘women’s constituency’, and as
long as voting is tied to localities, no woman candidate can seriously present herself as
representing women alone. One of the debates in contemporary feminist theory is whether
women can be described as an interest-based group, whose interests then need representing.
The argument began with Virginia Sapiro 15 who set out to establish that the key issue is no longer women’s right to be represented as individual women (their right to vote and stand in
election) but their representation as a group. Due to their materially different position in
society, women have objectively different interests from men, but the entry of women as
individual actors on the political scene does not mean that these interests are actively pursued.
According to Anna Jonasdottir, there is at least one objective interest that we can confidentially
identify and that is women’s interests in having a political presence. The content of women in
politics may well centre on need and may turn out to express a different set of values that
transcends the narrow egoism of interest. However, unless women are actively present, and in
numbers that will make them effective they cannot begin to act. Their needs might then be
defined from above and not explored by the women themselves.
Women should be equally present in any elected assemblies with men, but the case for this
may be weakened when linked to a notion that women represent women or express a
specifically women’s point of view. The term ‘women’ has a deceptive simplicity which it takes
from its opposition to men. It implies a shared experience, crossing nation and race and class.
Since segregation is a fundamental ordering principle of gendered societies, women can be said
to share at least one interest in common. They need improved access to every sphere.
There is a question of in what sense, other than being women, can women say they represent
women’s views. Their legitimacy derives from election not nature and any mandate in relation
to women depends on the extent to which their parties, whether ‘feminized’ versions of
existing parties or newly created women’s parties, have argued explicitly for policies for
women.
The case for more women representatives rests partly on a notion of equality in participation
and partly on a notion of reflection, and neither in principle nor in practice can this guarantee
that women are then represented as women. We can elect representatives to represent our
interests, and therefore change what has made us unequal. However, the very inequalities
militate against this, giving political power to those who already enjoy other powers. The extent
to which individuals become involved in politics and thereby gain access to decision-making
channels is directly correlated with the resources they have at their command. Those who have
everything else get political power as well. 16
Marion Young argues that instead of focusing on the degree to which a legislature ‘reflects’ the
sexual (or other) composition of a society, oppressed groups should have a guaranteed role in
policy formulation. The privileged can already rely on privileged access to the decision-making
process. Once the power over decisions is in question, then the precise mechanisms of accountability and the exact degrees of representation begin to matter. There is need for
assurances that people speak for their group. We cannot therefore avoid the questions of
accountability and democratic control.
The disproportion between those who elect and those elected is too astounding to be
attributed to accident, while the fact that it serves those who are already advantaged is too
striking for any democrat to ignore. Within the framework of representative democracy, it is
political parties that have provided the vehicle for representation, and in its most substantial
sense, the representation of women does not fit. ‘Women’ are not homogenous and do not
speak with a single voice.
The representation of women as women forms the difficulties of defining the shared interests
of women and the difficulties of establishing mechanisms through which these interests are
voiced. It has been noted that women politicians are often reluctant to see themselves as
representing women. Feminism should not support to a version of democracy that exists too
exclusively on trust, as if merely by virtue of their sex women can presume a mandate to speak
for us all.
A more radical version is that men and women are in conflict and that it is nonsense to see
women as represented by men.
All unite in seeing a sexual disproportion between electors and elected as evidence that
something is wrong. If there were no substantial differences between men and women, or
between black people and white, then those elected would undoubtedly be a more random
sample from those who elect. Consistent under-representation of any social category already
establishes that there is a problem and this could never be an accidental result.
GENDER AND LEADERSHIP
A leader is a person who guides or directs a group. Leadership can therefore be described as an
act or instance of guidance or direction. It is a process of social influence in which a person can
enlist the aid and support of others in the accomplishment of a common task.
It has been the practice of the primitive society that leadership is a man’s task, and that the
woman is not eligible for leadership. The woman has been greatly undermined and viewed as
weak in terms of providing guidance and direction. However, the modern society has
recognized the woman as being a potential leader and various provisions have been made to
justify this fact both at the national and the international level.
CEDAW obliges state parties to protect women in the political and public life. Women have the
right to vote in all elections and public referenda and to be eligible for election to all publicly elected bodies. They also have the right to participate in formulation and implementation of
government policy, to hold public office and perform all public functions at all levels of
government and to participate in non-governmental organizations and associations concerned
with the public and political life of the country.
Article 8 17 provides that women have the right to represent on equal terms with men, their
Government in international level and also to participate in the work of international
organizations.
Under Article 6 18 everyone has the right to recognition everywhere as a person before the law.
This clearly shows that women, being one of the undermined groups, have the right to be
recognized everywhere including in the fields of government and leadership.
The International Covenant on Civil and Political Rights (ICCPR) also plays a significant role in
recognizing women in leadership. Under Article 21 19 every person has the right to take part in
the government of his country, directly or through freely chosen representatives. Everyone has
the right of equal access to public service in his country. The will of the people shall be the
basis of the authority of government and this will, shall be exercised in periodic and genuine
elections which shall be by universal and equal suffrage by secret vote or by equivalent free
voting procedures. This shows that women have equal rights as men to vote for leaders of their
choice as well as to be voted for as leaders.
The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa is also a significant body that advocates for the elimination of discrimination against
women. It ensures that the rights of women in Africa are upheld and that women are accorded
equal opportunities with men.
Article 10 20 provides for the right to participation in political process and decision making. It
confers a duty upon state parties to take positive action to promote the equal participation of
women in the political life of their countries ensuring that women do participate without
discrimination in all elections; women are represented equally at all levels with men in all
electoral and candidate lists; and women are partners with men at all levels of development
and implementation of state policy. Sub article 2 provides that State Parties shall ensure
women's effective representation and participation at all levels of decision making.
There has been progress in upholding the rights of women in leadership. Out of the two
hundred and ten members of parliament in the National Assembly of Kenya twenty one are women, fifteen elected and six nominated. In addition to that, two African presidents are
women. 21
Kenya has also taken effective measures consistent with the promotion of equality or
elimination of discrimination in the work place and in leadership matters. The Constitution of
Kenya 2010 22 provides that not more than two-thirds of the members of elective or appointive
public bodies should be of the same gender.
Article 27 23 provides for the right not to be discriminated on the basis of race, sex, pregnancy,
marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience,
belief, culture, dress language or birth. According to this Article, every person is equal before
the law and has the right to equal protection and equal benefit of the law. Article 27 (3) 24
provides that women and men have the right to equal treatment, including the right to equal
opportunities in political, economic, social and cultural spheres.
Article 41 25 provides for labour relations where every worker has the right to fair remuneration,
reasonable working conditions and formation and participation in the activities and programs
of a trade union. This provision relates to each and every worker regardless of their sex and
therefore women and men should equally enjoy this right.
Article 232 26 provides for the values and principles of public service among them,
representation of Kenya’s diverse communities and affording adequate and equal opportunities
for appointment, training and advancement, at all levels of public service of men and women.
This will ensure that women are not looked down upon in all aspects including leadership since
the constitution is the supreme law of the land.
In conclusion therefore, the national values and principles of governance should be invoked
whenever any law or policy is interpreted or implemented. The values such as equality, equity,
social justice, non-discrimination, human rights and human dignity should always be considered
in bid to address the issue of gender parity. 27
REFERENCES
1. The International Labour Organization (Discrimination(Employment and Occupation)
Convention, 1958)
2. The Convention on the Elimination of All forms of Discrimination Against Women
(adopted 18 December 1979, entered into force 3 September 1981) UNTS 13
3. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa (adopted 11 July 2003, entered into force 25 November 2005)
4. The Constitution of Kenya 2010
5. The National Gender and Equality Commission Act No. 15 of 2011
6. The Universal Declaration of Human Rights, 1948
7. The International Covenant on Civil and Political Rights,1966
8. The International Covenant on Economic Social and Cultural Rights, 1966
9. Employment Act Chapter 226 Laws of Kenya
KNOWLEDGE TREE LAW NOTES I
