Defining sexual harassment

Improved Access to Justice in the Caribbean (Impact Justice) regional project director Velma Newton, in an interview with the Sunday Express last Friday, noted in the past she had proposed a bill to specifically deal with sexual harassment.

“Impact Justice has drafted a bill which deals with sexual harassment anywhere it occurs, and our view is that it can occur any place, particularly in the workplace, but not necessarily only there,” she said, adding a decision was taken in March 2014 “to conduct a review of sexual harassment legislation in the region. The options were to update the provisions of the Model Caribbean Bill, or draft a new piece of legislation. The second course was adopted. Cayman Islands legislation was used as a precedent in this regard”.

Newton had indicated she hoped the bill would be passed by all Caricom countries since sexual harassment is overlooked in the Caribbean.

The proposed bill, she had explained, is gender-neutral despite the fact that while women are mainly targeted, men too can face sexual harassment.

Speaking at the National Trade Union Centre Symposium, “Sexual Harassment in the World of Work”, on May 23, president of the Industrial Court Deborah Thomas-Felix said: “It is important to note, however, that one of the challenges is that despite the prevalence of sexual imagery and metaphor in our music, literature and everyday interaction, we remain a very much conservative society when addressing any issues that pivot on sex and gender.

“While this is not particularly unique to Trinidad and Tobago, it is critical that we understand the pervasive impact of culture and learned behaviour, as well as the psychology that underpins this issue.

“Consequently, when we do identify conduct which is unacceptable, we are not sure how to treat with it. Sexual innuendos and cat calls—the proper term for which is “street harassment” and is now internationally acknowledged as a form of sexual harassment—appear to be so entrenched in our culture that we are uncomfortable addressing situations that are inappropriate.

“As a consequence, sexual harassment in the workplace is not one of the topics we openly discuss and, despite it being a hot topic item of discussion internationally, it remains a relatively taboo subject that has not gained a lot of traction locally.

“Our ability to respond to sexual harassment in the workplace is stymied, not only by prevailing cultural mores and values, but also by the lack of coherent workplace policy guidelines on the topic.”

Thomas-Felix added: “As you are aware there is no legislation in Trinidad and Tobago which addresses the issue and, therefore, there is no legal definition to guide employers and the workforce on what conduct is acceptable?

“That notwithstanding, all of the definitions I have found agree that the prohibited behaviour is unwanted and causes harm to the victim and may constitute a health and safety problem.”

In 2006, then-justice Desiree Bernard of the Caribbean Court of Justice noted, “Sexual harassment in the workplace is a not-too-unfamiliar scenario in our region.

“While victims of sexual harassment can be male or female, women suffer [disproportionally]. Many young women are exploited and forced into sexual liaisons with their male employers to obtain or retain employment. Sexual favours are the ‘quid pro quo’ for permanent job security or advancement... equal harassment is difficult to identify where women regard a touch on the buttocks or risqué jokes as part of our normal social intercourse.

“Overall the key ingredient in sexual harassment is the authority which the harasser wields over the victim who is usually at a disadvantage owing to her fragile economic position.”

Sexual harassment

laws in the Caribbean

In December 2017, the Employment Sexual Harassment (Prevention) Act 2017 was proclaimed in Barbados. Under the act, every employer must ensure that within six months of its commencement, they provide a clearly articulated, written policy statement against sexual harassment in the workplace. Employers will be heavily fined should they fail to do this. According to the act, sexual harassment includes “the use of sexually suggestive words, comments, jokes, gestures or actions that annoy, alarm or abuse a person”. Also included were “the initiation of unwanted physical contact, unwelcome sexual advances or requests”.

This act essentially also provides a framework for the reporting of complaints, establishment of an investigation which includes a hearing and determination of the complaints lodged under the cloak of confidentiality.

In The Bahamas, the Sexual Offences and Domestic Violence Act, under Indictable Offences, Section 26, states, (1) Any person who—(a) being a prospective employer importunes or solicits sexual favours from another person—(i) in the terms or conditions on which he offers, to that person or any other person, employment or admission into any institution; or (ii) under a threat of rejection (whether implied or otherwise) of any application made by that person or any other person for employment or for admission into any institution, or of causing such rejection; (b) being in a position of authority over, or being a ­co-worker of, another person in any place of employment or any institution, importunes or solicits sexual favours from that other person under any holding out, promise or threat of the grant or imposition of any favour, benefit, advantage or disadvantage, as the case may be, at the place of employment or institution; or (c) importunes or solicits from a person in a position of authority in any place of employment or any institution, any favour, benefit or advantage, or the forbearance from the exercise of any right, power or duty relating to that authority under any holding out or promise of sexual favours, is guilty of the offence of sexual harassment.

(2) Any person who is guilty of the offence of sexual harassment is liable to a fine of $5,000 or to imprisonment for two years or to both such fine and imprisonment.

(3) In this section, “prospective employer” means any person who—(a) is in a position of authority in any place of employment or any institution; or (b) is authorised to act on behalf of a person mentioned in paragraph (a) for the purpose of employing personnel for a place of employment or admitting persons into an institution.

(4) No prosecution shall be commenced for an offence under this section without the consent of the attorney general.

Belize: The Protection Against Sexual Harassment Act, Chp 107, addresses Sexual harassment in employment, Liability of employer for sexual harassment, Liability of employer where opportunities granted for sexual favours, Prohibition on acts adversely affecting employment, Sexual harassment at institutions, Duty to keep institution free from sexual harassment, Hearings and Complaints and Offences and Penalties.

Cayman Islands: Under its Gender Equality Law 21 of 2011, Section Seven deals with Sexual Harassment and notes that such offences in the workplace or within community organisations could lead to a one-year prison sentence upon conviction. In 2013, the Cayman Islands Sexual Harassment Bill extended beyond the workplace to institutions such as educational, vocational training, associations, organisations and accommodation was passed.

Forms of

sexual harassment

The EOC, in its booklet, outlines sexual harassment is constituted “when the conduct is unwanted and has the effect (i) of creating an intimidating, hostile or offensive work environment. When the perpetrator attempts to influence the process (ii) of employment, terms or conditions of employment or other benefit of an employee or job applicant in exchange for sexual favours. When such conduct is offensive and unacceptable for (iii) the victim.

Accordingly, the EOC lists the following manifestations of sexual harassment:

(i) Misuse of sexual behaviour and request for sexual favours—when it is made a condition of employment or promotion;

(ii) Physical sexual harassment—sexual violence or unwelcome physical contact;

(iii) Verbal sexual harassment—offensive and sexually suggestive jokes and comments;

(iv) Non-verbal sexual harassment—suggestive gestures of a sexual nature and sexually suggestive body language;

(v) Written or graphic sexual harassment—displays of sexually explicit photographs and pornographic materials;

(vi) Psychological sexual harassment—repeated unwanted proposals and taunts of a sexual nature.

Case background

Sometime on or around May 25, 1994, Ms M complained to her supervisors that on May 25, 1994, at the company’s Independence Square, Port of Spain, branch, the male worker kissed her on her cheek while they were both in the filing room.

In the course of investigating this complaint, it came to the attention of the company that sometime in 1991, two other employees, Ms R and Ms P had reported to a senior supervisor at the company’s Centralised Securities Unit that the worker had had uninvited physical contact with them.

That senior supervisor had discussed those allegations with the worker, but no further disciplinary action had been taken at the time. Ms R’s allegation was that the worker had touched her bottom, commenting at the same time about her physical condition; while Ms P had alleged the worker had touched her on the hips.

The worker admitted the allegations of Ms R and P, stating he had known them for years, they joked in groups. He had a close rapport with them which was like brothers and sisters would have. If they had any objection to any aspect of his conduct, he would have expected them to express such objection to him. After their allegations were drawn to his attention in 1991, he kept his distance from them and had not spoken to them since.

The worker explained the kind of behaviour which he admitted in relation to Ms M, that is, the kiss in appreciation, was common among the company’s employees. He was surprised Ms M regarded it as sexual harassment.

—Part I was published

last Wednesday.

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