Career advice · Updated October 2026
Discrimination at Work in Kenya: Protected Grounds, Equal Pay and How to Prove It
Being passed over for promotion because you are pregnant, paid less than a colleague doing the same job, or told at an interview that the company “prefers” people from a certain community: each of these can amount to discrimination at work in Kenya. Section 5 of the Employment Act, 2007 bans it, and Article 27 of the Constitution backs it up. Unusually, the law also shifts the burden of proof onto the employer. This guide explains how that works in practice.
The protected grounds
Section 5(3)(a) says no employer shall discriminate, directly or indirectly, against an employee or prospective employee, or harass them, on grounds of:
| Category | Grounds in section 5(3)(a) |
|---|---|
| Identity | race, colour, ethnic or social origin, nationality, language |
| Belief | religion, political or other opinion |
| Personal status | sex, pregnancy, marital status |
| Health | disability, HIV status |
Section 5(3)(b) says the ban applies to recruitment, training, promotion, terms and conditions, termination and “other matters arising out of the employment”. Section 5(8) widens the net further: “employee” includes a job applicant, “employer” includes an employment agency, and “employment policy or practice” covers advertising, selection criteria, job grading, pay, benefits, job assignments, performance appraisals, transfers, demotion and discipline.
Article 27(5) of the Constitution adds grounds that section 5 does not list, such as age, health status, conscience, belief, culture and dress. Claims based on those grounds are usually framed under both the Constitution and the Act.
Direct and indirect discrimination
Direct discrimination is open: “we don’t hire women for this role”. Indirect discrimination is a rule that looks neutral but hits one group harder without good reason, such as a height requirement for an office job, or a rule that staff on maternity leave cannot be considered for promotion that year. Section 5 covers both.
Equal pay for work of equal value
Section 5(5) is short: “An employer shall pay his employees equal remuneration for work of equal value.” It does not require identical job titles. The question is whether the work is of equal value in skill, effort and responsibility. If you are paid less than a colleague doing comparable work, ask HR in writing for the grading and the reasons for the gap. Unexplained gaps are hard for an employer to defend, because of the burden rule below.
What is not discrimination
Section 5(4) lists four exceptions:
- affirmative action measures that promote equality or eliminate discrimination;
- distinguishing, excluding or preferring someone based on an inherent requirement of the job, for example a medical licence for a clinician, or a driving licence for a driver;
- employing a citizen in line with the national employment policy; and
- restricting access to limited categories of employment where state security requires it.
Employers sometimes stretch “inherent requirement” too far. A requirement has to be genuinely necessary for the job, not a preference.
Who has to prove what
Section 5(7) says that in any proceedings alleging discrimination, the employer bears the burden of proving that the discrimination did not take place as alleged, and that the act or omission was not based on a protected ground.
The ELRC explained how this works in G M V v Bank of Africa Kenya Limited [2013] eKLR. A branch manager was dismissed after poor appraisals that coincided with her pregnancies. The court held that the employee only needs to show a prima facie case, meaning facts from which discrimination can be inferred. The employer must then give a clear, specific, non-discriminatory reason. The bank could not: its appraisals were flawed, training she had asked for was never given, and an old customer complaint was raised only when she was pregnant. The court found the dismissal discriminatory.
Contrast that with SWM v Hardware Trading Store [2021] KEELRC 1423, where a cashier’s pregnancy discrimination claim failed because the evidence showed her leave arrangements had been accommodated. The burden shifts only once you put forward facts that point to discrimination.
Discrimination and dismissal
Section 46 lists reasons that are never fair reasons for dismissal or a disciplinary penalty. They include pregnancy or any reason connected with it (s.46(a)), and an employee’s race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability (s.46(g)). Taking leave you are entitled to, and union membership, are also protected. A dismissal for any of those reasons cannot be justified. Our unfair termination guide covers the compensation of up to 12 months’ gross pay that the court can award under section 49, and our maternity and paternity leave guide explains the specific protections around pregnancy.
How to build a discrimination complaint
- Identify the ground. Which protected characteristic do you believe explains the treatment? Name it.
- Find a comparator. Who was treated better, and how are they different only in that characteristic? Note their role, grade and pay, if you know them lawfully.
- Collect the timeline. Emails, appraisals, promotion notices, job adverts and messages. Timing matters, as GMV shows.
- Complain internally in writing. Ask for the reasons for the decision. A vague or shifting answer helps your case.
- Go to the labour officer or the ELRC. Section 86 gives you both routes. See our step-by-step guide to filing a case.
- Mind the limit. Section 89 generally requires a claim within three years.
Discrimination is also an offence under section 5(6). Where no specific penalty is set, section 87 provides a fine of up to KSh 50,000, imprisonment of up to three months, or both.
Harassment linked to a protected ground
Section 5(3) bans harassment as well as discrimination. Repeated jokes about someone’s tribe, mocking a disability, or comments about a colleague’s religion can therefore breach the Act even where pay and promotion are unaffected. Sexual harassment has its own section; our guide to sexual harassment at work covers section 6 in detail. If the treatment becomes so bad that you feel forced to resign, the law on constructive dismissal may apply, explained in our constructive dismissal guide.
Disability and workplace adjustments
Section 2 of the Employment Act defines disability broadly, as a physical, sensory, mental or other impairment, including visual, hearing, learning or physical incapability, that adversely affects a person’s social and economic participation. Because disability is a protected ground, refusing simple changes that would let a capable employee do the job, such as flexible hours for treatment, an accessible workstation or assistive software, can support a discrimination complaint. Raise the adjustment you need in writing, explain how it lets you do the job, and keep a record of the response.
Discrimination in recruitment
Because job applicants count as employees under section 5(8), discriminatory adverts and interview questions are covered. Questions about whether you plan to get pregnant, your marital status or your tribe have no bearing on most jobs. If you face them, note who asked and when. When you apply, focus on what the job actually requires: our CV guide explains why you never need to include your tribe, religion or marital status, and our free CV builder leaves those fields out.
If a pay gap is the issue, use the salary checker to compare advertised pay for your role, and the net salary calculator to see what a correction would mean for your take-home pay. For context on how pay disputes get resolved, Business Radar covers employment court rulings such as this KSh1.1m award over a flawed dismissal.
Key takeaways
- Section 5 bans direct and indirect discrimination on 12 listed grounds, from recruitment to dismissal; the Constitution adds more, such as age.
- Job applicants and employment agencies are covered.
- Employers must pay equal remuneration for work of equal value.
- Once you show facts pointing to discrimination, the employer must prove a non-discriminatory reason.
- Genuine job requirements and affirmative action are lawful.
Read our plain-English guide to the Employment Act for the rest of your rights, or browse jobs in Kenya.
Frequently asked questions
What are the grounds of discrimination under the Employment Act?
Section 5(3)(a) lists race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, marital status and HIV status. Article 27 of the Constitution adds others, including age, health status, belief, culture and dress.
Who has to prove discrimination in Kenya?
Section 5(7) puts the burden on the employer to prove that discrimination did not happen and was not based on a protected ground. In practice, the employee first shows facts from which discrimination can be inferred, as the ELRC explained in GMV v Bank of Africa (2013).
Is it legal to pay two people differently for the same job?
Only if there is a genuine reason unrelated to a protected ground, such as different qualifications or proven performance. Section 5(5) requires equal remuneration for work of equal value, and an unexplained gap is hard for an employer to justify.
Can I complain about discrimination if I was only a job applicant?
Yes. Section 5(8)(a) says "employee" includes an applicant for employment, and section 5(8)(b) says "employer" includes an employment agency, so discriminatory recruitment can be challenged.
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