My employer demands that women staff wear miniskirts, short dresses

Dear Vivian,

I am concerned about a recent dress code policy introduced at a private firm where I work as an associate architect. The dress code requires female employees to wear short skirts or dresses. When I asked about the reason behind this policy, the senior management explained that it aims to appeal to customers, who are mostly men. According to them, the decision to have this policy is intended to instil confidence in clients when choosing to work with our firm. It has been very uncomfortable as the policy affects only female employees. Please, advise.

Rhoda Wakonyo,
Parklands, Nairobi

Dear Rhoda,

The dress code policy in question not only raises eyebrows but also poses substantial concerns about gender discrimination, an area safeguarded under the Constitution and the employment law. It is important to note that such sex-based dress codes can undermine your dignity and may make you more vulnerable to sexual harassment from other staff, customers and management.

The Employment Act of 2007, a cornerstone of employment law in Kenya, plays an important role in addressing such issues. Section 5 of the Act unequivocally prohibits discrimination within the workplace. It explicitly states that employers should promote equal opportunity in employment and strive to eliminate discrimination in any employment policy. This provision, therefore, underscores a commitment to upholding equal treatment for all employees, irrespective of gender.

The courts have consistently demonstrated a commitment to the principles of equality and non-discrimination. Key cases, such as Federation of Women Lawyers-Kenya (Fida-K) v. Attorney General & Others (2012) have reaffirmed the constitutional guarantee of equality and non-discrimination. This case emphasised the imperative to challenge policies perpetuating gender stereotypes and unequal treatment.

In this context, your firm's dress code policy, as explained by senior management, seems to be deeply rooted in gender stereotypes with an assumption that clients will be drawn with the short skirts and dresses. Such presumptions not only perpetuate discriminatory practices but also stand in direct violation of the fundamental principles of equality.

Given this legal framework, there exist several potential remedies to challenge the discriminatory dress code policy. One effective avenue is to initiate an internal complaint process within the organisation. This involves formally submitting concerns to the human resource department in writing. This should ideally prompt an internal investigation into the alleged discriminatory practices. This internal process is a crucial first step as it involves seeking resolution within the confines of the organisation's structure.

However, if the internal route proves insufficient or fails, you can commence a legal action by instituting a claim in the Employment and Labour Relations Court. This specialised court possesses jurisdiction over employment matters and can provide appropriate relief, including the issuance of an injunction against the policy. Court decisions hold the potential to rectify instances of discrimination, and serve as a means of precedent that discourages such practices across the industry.

Vivian

The writer is an advocate of the High Court of Kenya and award-winning civil society lawyer ([email protected]).