Sexual harassment with in the work place is a globaly condemned act that is considered as sex discrimination and a violation of human rights. It has the negative effect of increasing absence in the workplace, increasing employee turnover and it lowers workplace productivity as well as job satisfaction. However the problem still prevailed within workplaces in Ethiopia because it was not well defined in the previous labour law proclamation. To ensure the prevelace of a safe working space for women, prohibiting sexual harassment and a complaints process that protects workers from retaliation is essential. In light of this fact the new proclamation introduces certain articles that do just that. The purpose of this article is to asses the change in legislation and the benefits it provides in policing issues of sexual harassment.
Sexual Harassment and Violence under the previous Labor Proclamation
Sexual harassment and sexual abuse is a serious issue in the Ethiopian community. An article published by BioMed Central in 2015 which focused on the prevalence of sexual harassment and sexual violence in the work place among nurses - one of the professions dominated by women - in the southern region of Ethiopia revealed high percentages in relation to the prevalence of sexual harassment and violence in the workplace.
Verbal abuse accounted for much of the interactions reported by the 660 randomly selected health workers in the region. 18.2% of the participant reported physical violence while 13% reported instances of sexual harassment. The article concludes with a firm statement that a significant amount of the nurses that participated in the study faced some form of sexual harassment and sexual violence. According to the authors, the findings warranted action from policy makers and legislators in the region.
On June 2018 a student of Addis Abeba University named Bethelehem Fesseha wrote an article about “Women’s Experience of Workplace Sexual Harassment & Their Coping Mechanisms: The Case Of Arada Sub-City Kebele Recreation Centers.”. In this article she mentioned how the Federal Constitution of Ethiopia in article 35 and the Labor Proclamation No. 377/2003 article 14 and article 87(1) clearly condemns any form of discrimination based on one’s sex. She also asserted that as a signatory of the above international agreements, Ethiopia is legally bound to accept the agreements as part of its law (FDRE, 1995). For this reason, sexual harassment as one of the discriminatory acts committed against women has legal repercussion in both national and international laws.
Within the framework of the International Labor Organization’s Decent Work Agenda, all workers, regardless of employment status, should work in conditions that guarantee decency and dignity. And sexual harassment by it's nature revokes these rights. It was in this context that the ILO called for policy measures to combat and prevent sexual harassment on its 71st session of the International Labour Conference (ILO 2007)
On the previous Labor proclamation (377/2003) there was no definition for sexual harassment or sexual violence. For this reason, cases related to these issues were treated as brawls and quareles in the workplace considered under the article 27 of the former labor proclamation as prohibited acts . This approach by the previous proclamation created a number of problems related to falling short of capturing the meaning of sexual harassment and violence.
In countries like Ethiopia it seems easy to brush off issues related sexual harassment since it is taken as a part of the norm of the society. During a Webinar about the new proclamation, Dr Mehari Redea - a lawyer and vetran lecturer at the Addis Ababa University, School of Law - mentioned how sexual harassment is a crime that affects a person’s dignity as well as being listed as a criminal act under Ethiopian Criminal Law. According to Dr Mehari, verbal harassment was not considered as sexual harassment by employers and employees alike previously. While making this point, the doctor recalled the general outlook surrounding catcalling in Ethiopia with arguments like “Isn’t catcalling a means of getting to know one another? Why would it be considered as a quarrel in the workplace?” dominating discourse around sexual harassment and violence in Ethiopia.
A new era in policing workplace sexual harassment and violence
In April 2018, Prime Minister Abiy Ahmed took office and started to execute reform efforts in order to bring about much needed change in the country. One of these areas was making legislative reforms. A committee was formed to assist the Attorney General’s Office and one of the reformed legislations was the Labor Proclamation No 377/2003 - a proclamation that had governed labor issues for over 16 years. The reform efforts resulted in a new proclamation in July 2019. The proclamation was commended at the time for taking strong steps to bridge the gaps in the previous proclamation.
The article by Caroline Wahome published in September 2019 by Hivos people unlimited following the adoption of Ethiopia’s new Labor law was one of many written by local and international stakeholders. The introduction of provisions governing sexual harassment and sexual violence in the workplace for the first time in the country’s history was echoed as an important stride by many local, continental and global commentators.
The new proclamation which was adopted on July 5, 2019 introduced new rules regarding minimum wage and minimum age to work. It also increased the number of days prescribed for maternity leave and introduced a new concept of paternity leave giving fathers 7 days of leave with pay when their wives deliver a child.The proclamation also introduced rules governing sexual harrasment and sexual violence in the work place. Such provisions were non-existent in the Ethiopian legal system in the past. Benching the implementation and effect of the new labor law for now, it is important to note the relevance of debuting provisions governing such a problematic area in the society.
Provisions of the new labor proclamation list the rules related to workplace sexual harassment and sexual violence. Article 2 defines the two terms while article 14 makes the commission of the acts prohibited. Article 2 of the proclamation defines the two terms as follows:
Sexual Harassment (Article 2 (11)):
“Sexual harassment” means to persuade or convince another through utterances, signs or any other manner, to submit for sexual favor without his/her consent.
Sexual Violence (Article 2(12))
“Sexual violence” means sexual harassment accompanied by force or an attempt thereof.
Additionally, the proclamation - under article 32 - has also included the commission of sexual harassment and sexual violence as one of the reasons entitling the employee to terminate employment contract without notice. Finally, article 39 entitles workers subjected to either acts to have severance pay granted they have completed the 60 days of probationary employment.
It has been a little more than a year since the Ethiopian parliament approved the draft of the new labor legislation on July 5, 2019. The Negarit Gazette published the new proclamation on September 5, 2019. Considering that the new proclamation has been in effect for a year, it is time to assess what the contribution of the legislation looks like in the period it has been in effect.
The prohibited acts under the new proclamation are listed for employers and workers separately under article 14. Sub Article 1 states that it shall be unlawful for an employer or a managerial employee to commit sexual harassment or sexual assault at the work place and subarticle 2 mentions sexual harasssment or sexual violence as the prohibited acts for a worker. A gap that is clearly noticed under article 14 of the new proclamation is how it mentions sexual assault- a term not defined by the proclamation under prohibited acts for an employer or a managerial employee. Under the section of prohibited acts of a worker it states sexual violence explicitly. These types of wordings open the gate for interpretation.
According to the new labour proclamation, employees that have suffered sexual harassment or sexual violence will be entitled to terminate their contracts without notice, and will also be eligible for severance payment and compensation. On top of this the law provides a higher amount of compensation payment for employees who are forced to terminate their contract, without notice, for reasons of sexual harassment and sexual violence. Forced termination of contracts by employees due to unlawful acts of the employer will also entitle the employee to one month compensation payment whereas sexual harassment and sexual violence victims will be granted three months of compensation payment.
Mekdes Ewnetu - a legal professional and gender rights researcher - believes these steps are integral to making sure that women thrive in different industries across the country. Though not the end of the journey, she believes it was an important first step taken by the government. When asked about the particular relevance of the introduction of provisions related to sexual harassment in the revised labor proclamation, Mekdes said:
“Laws have the ability to shape how a certain community acts. So to begin with that, as a woman I think it is always good to have more protection from the law considering how frequently these things happen. So it was great news for all women in Ethiopia when the revised proclamation introduced these rules for the first time. “
She also mentioned the importance of understanding that the contextual relevance of such rules noting that in Ethiopia’s extremely social community where “innocence” justifies actions that may in other circumstances and jurisdictions be considered to be sexual abuse and sexual harrassment. In Ethiopia, the workplace is far from conducive and safe for women according to Mekdes. She claims in the absence of legislation it is hard to work on avoiding sexual harassment in the office space because it is seen as okay due to several cultural realities.
“In Ethiopia - even amongst women - there is a tendency to consider many things as normal or “okay”. So women that are in fact not okay with certain gestures in the workplace do not have any form of protection in the absence of a law protecting them. So, the introduction of these rules in the new labor law was and still is a big win for women working in different capacities in Ethiopia. This will likely contribute a lot towards making the workplace safer for women.”
Encouraging first steps, Still a long way to go
Even though he agrees with most of the conclusions of Mekdes, according to Kahlid Getye- a legal consultant - problems associated with proving that such crimes are committed still persist despite the improved protection under the new proclamation.
“It’s very hard to try sexul harassment cases since it’s difficult for a woman to explain the conditions of her harassment and be trusted. In order to even be heard she needs evidence or witnesses.” said Khalid explaining the problems associated with proving sexual harassment in the workplace. He also mentioned the difficulty of having witnesses - which are usually employees - to testify against employers to prove sexual harassment. According to Khalid “Employees are not willing to go against their boss out of fear of messing up their ongoing work life and their relationship with their employers.”
The legal consultant also said “On top of that, no one really expects to be harassed. So it’s very unlikely that they think of recording sexual advances through video or audio. These conditions still make it hard to police sexual harassment within the workplace, despite stronger protection accorded by the law to women in the workplace in the new proclamation.”