Court Boss Suggestive Memes Harassment

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A growing number of employees endure uncomfortable workplaces in silence—late-night messages from supervisors, sexually suggestive memes passed off as humour, and blurred professional boundaries masked as office culture.

A recent ruling by the Employment and Labour Relations Court has now placed such conduct squarely within the realm of unlawful workplace behaviour that amounts to sexual harassment.

The Employment and Labour Relations Court has clarified that workplace sexual harassment can occur through digital platforms such as WhatsApp, ruling that inappropriate messages and suggestive content from a superior may create a hostile work environment and amount to constructive dismissal.

In a judgment delivered on September 19, 2025, in RAO v O L & Another (2025), the court found that a female employee was effectively pushed out of her job after being subjected to persistent inappropriate communication by her boss.

The claimant was employed on September 6, 2021, and testified that the relationship with her supervisor began to shift on September 17, 2022, when she received a sexually suggestive WhatsApp message.

What initially appeared as casual interaction gradually escalated into repeated inappropriate communication, including sexually explicit TikTok videos and messages that made her increasingly uncomfortable.

The situation intensified in January 2023, when the court heard that the conduct extended beyond digital exchanges to physical misconduct, alongside continued suggestive communication. By March 28, 2023, the employee formally lodged an internal complaint, citing an unsafe and hostile work environment.

She later resigned on May 5, 2023, stating that the conditions had become intolerable.

The employer disputed the claim, arguing that the interactions were either consensual or misinterpreted and that proper internal procedures had been followed.

It maintained that the employee resigned voluntarily and was not subjected to any unlawful treatment.

In determining the matter, the court examined the totality of the evidence, including the nature of the communication, the relationship between the parties, and the broader workplace context.

It rejected the argument that the exchanges could be dismissed as harmless or informal.

Justice Stella Rutto held that sexually suggestive messages, memes, and videos sent via digital platforms fall within the scope of sexual harassment under Section 6 of the Employment Act.

The court emphasised that workplace professionalism extends beyond physical office spaces to digital interactions, particularly where there is a clear imbalance of power.

Significantly, the court noted that responses such as emojis or continued engagement by the employee did not, in the court’s view, amount to consent, especially in an environment where refusal could carry professional consequences

The court further clarified that in employment disputes, harassment need only be established on a balance of probabilities, not beyond a reasonable doubt.

On the argument of voluntary resignation, the judge found that the cumulative effect of the conduct of the CEO created a hostile and intimidating work environment, leaving the employee with no reasonable option but to resign. The court therefore ruled that the resignation amounted to constructive dismissal.

The court awarded the claimant Sh1.32 million, comprising Sh120,000 being one month's salary in lieu of notice, and Sh1.2 million being compensatory damages equivalent to 10 months of her gross salary, and dismissed the employer’s counterclaim.

"In issuing this award, the court has taken into account the length of the employment relationship, coupled with the circumstances leading to the termination of employment. Further, the court has considered the claimant’s assertions that she has suffered emotional, physical, mental and social stress as a result of the 1st respondent’s actions," Justice Rutto ruled.

"The claimant’s claim for general damages in the sum of Sh5,000,000 is declined, seeing that the court has awarded her compensatory damages," she added.

The ruling marks a significant development in employment law, signalling that workplace harassment is not limited to physical acts or explicit propositions.

Playful digital communication, often framed as trivial, can carry serious legal consequences when it undermines an employee’s dignity or creates an intolerable working environment.

For employers, the decision underscores the need to enforce clear boundaries in both physical and virtual workspaces.

For employees, it affirms that the law recognises and protects against subtle, cumulative forms of harassment that may previously have gone unchallenged.