Here I seek to address the topic of sexual
harassment as an aspect of gender inequality in employment in the OECS, and
within the context of an acknowledged weak statutory framework for
anti-discrimination.
The topic has been the subject of much research and study in the past
decade[1]. However, despite encouragement and
recommendations, that concern has not translated into legislative action. A search of the website of the Eastern Caribbean Supreme Court reveals
only one case[2]
in which the term “sexual harassment” is even mentioned, and then only as an
aside. It is perhaps not surprising that
this activity has been the subject of so little judicial pronouncement within
the sub-region served by the Eastern Caribbean Supreme Court. The lacuna is evident elsewhere. A search of the
website[3]
of the Trinidad and Tobago Supreme Court
does not reveal one case dealing specifically with the topic. A similar search of the website[4]
of the Supreme Court of Jamaica is
no more productive. We have to assume
that there has been no litigation on the subject in either of those two
Commonwealth Caribbean States.
In a 2006 paper[5]
published on the website of the CCJ, Justice Desiree Bernard provided us
with a thorough description and analysis of the phenomenon of sexual harassment
in the West Indian workplace in these terms,
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
disproportionately. 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. This type of harassment in the workplace
frequently destroys a productive working environment and the self-esteem of
those who experience it.
However, sometimes sexual harassment is difficult to identify
particularly in our Region where women regard a touch on the buttocks or risqué
jokes as part of our normal social intercourse, and may only treat it as
serious when the harassment develops into more aggressive conduct. In less formal employment situations such as
domestic service any sexual suggestion or gesture by a male employer will
constitute sexual harassment because of the advantageous position and dominance
he enjoys in his household.
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, the current employment being in most
cases her only means of livelihood. With this foremost in her mind a victim may
be reluctant to confront her harasser or report any unwelcome advances.
The lack of relevant legislation has long been the subject of complaint
in the region. A 2003 paper by Linden
Lewis[6]
reveals that only two Caricom countries, Belize and the Bahamas, have
established specific sexual harassment legislation. As Mr Lewis writes,
For the most
part, sexual harassment is widespread in the region. Many men in the Caribbean fail to recognize
the import of this problem. Indeed, many
do not view it as a problem at all.
Though some men would stop short of sexual battery, they see no harm in
engaging in sexual banter in the workplace or creating an uncomfortable
environment for women, lesbians and gay men.
It is reasonable to argue that in the Caribbean as a whole, sexual
harassment represents behaviour which is largely normalized. The patriarchal culture of the region
nurtures this type of behaviour. Sexual
harassment is an extension of behaviour associated with public harassment of
women and gay men. Hegemonic men in the
region retain the right to shout remarks at women in public spaces. These remarks are sometimes complimentary,
often sexually suggestive, and other times very insulting, humiliating and
embarrassing to women in public.
Subordinate men do not escape such public taunting. Often these disparaging remarks directed to
gay men are accompanied by the threat of violence or backed up with actual
violence. Ironically, men who raise the
issue of sexual or public harassment are seen as strange or confused or are
believed to have lost their way socially.
He points out that common and sexual
assault criminal charges are inadequate to provide the protection from this
type of harassment that employees are entitled to. His urging that more of our countries should
adopt the model Caricom sexual harassment Bill[7]
to seems to have fallen on deaf ears.
In 2006, Justice Bernard, in a
second paper[8] delivered
on the occasion of the 60th anniversary of the UN Commission on the
Status of Women, repeated Mr Lewis’ hope that the Caricom model Bill will soon
be enacted by our legislatures. As she
expressed it then,
In the Caribbean,
conduct which is now regarded as harassment was endured without complaint by
women with few options who were seeking or were desirous of retaining
employment. A number of states in the
Region have enacted sexual harassment legislation, but no statistics are
available to ascertain how effective they have been.
This Caricom Model Bill would prohibit sexual harassment in the
workplace, as well as in education and accommodation, and would include
provisions which would empower officers to conduct investigations and establish
a tribunal to hear complaints. This draft
Bill is now almost exactly 20 years old.
In 2007 the Grenadian Education and
Labour Minister, Claris Charles[9],
declared open a one-day consultation on creating a policy framework for
developing sexual harassment legislation in Grenada. She questioned then what sort of society was
being built on the island when women accept violence in their homes, as well as
being harassed at work, and the abuse of their children at home. She complained,
There
is need for the public-at-large to become more aware of what is happening
around them through education. We do not
have a public that would inform on those things. Everything they hide it. So a woman is sexually harassed, she goes
home, she tells her friend and that's it.
A woman is abused, she accepts it because she is emotionally dependent.
What
is true for Grenada is no less true for each of the States and Territories in
our sub-region.
The
time for us to be treating sexual harassment as a private wrong is long
past. In a 2009 United Nations
Development Fund for Women (UNIFEM) article[10]
published in the Stabroek Newspaper, Senior Lecturer at UWI Tracy Robinson
explained,
Many of us remember when domestic violence was dismissed as
‘cultural’, ‘man and woman business’, even though most of the violations were
already in theory crimes. The passage of
legislation naming and defining domestic violence in law has played a key role
in altering the way we now understand and address domestic violence. Like the domestic
violence law, the sexual harassment legislation
will introduce crucial new remedies, and send a message about the seriousness
of the violation.
The jurisprudence in the Eastern
Caribbean is negligible. We have seen
the dearth of reported cases. I have
found one journal article on a 1994 ground-breaking Industrial Court case[11]
from Trinidad and Tobago where sexual harassment was for the first time
upheld as good grounds for dismissing a senior employee who had provided 25
years of commendable service to his company.
This was the first case on sexual harassment to go as far as the
Industrial Court. In providing the
rationale for its decision, the court advised:
It
is therefore left largely to employers to establish a reasonable framework for
addressing problems associated with sexual harassment at the workplace. The unions, too, have an obligation to their
members to work towards elimination of these problems. It is to be hoped that until Parliament
enacts legislation, the parties would find it possible to co- operate in the
formulation of an appropriate policy on the subject.
And, so, in the absence of a legislative
framework, it is left for those of us concerned about limiting the
opportunities for sexual harassment in the workplace to find ways to take
private initiatives. The USA has led in
the corporate field in promoting active policies at Board level to discourage
sexual harassment and to provide mechanisms for employees who feel harassed to
be able to make a complaint and to have their grievance heard and dealt with in
a fair and impartial matter.
For several years in the 1980s, I was a
representative of the Caribbean Family
Planning Affiliation on the Board of Directors of a New York-based
not-for-profit corporation with hemisphere-wide branches. This was the International Planned Parenthood Federation (Western Hemisphere Region)
Inc, or IPPF(WHR). While I was on
its Board, IPPF(WHR) adopted a sexual harassment policy for all of its
employees. It was quite extensive, and
read as follows:
B.
SEXUAL HARASSMENT POLICY
Sexual
harassment is a violation of local, state and federal law, as well as of this
policy. Although all forms of
discrimination and harassment are treated with equal seriousness, sexual
harassment is often difficult to define, so it is addressed in further detail in
this Handbook. The Equal Employment
Opportunity Commission has issued guidelines which define sexual harassment as
any unwelcome sexual advances, requests for sexual favors, sexually motivated
physical contact and other verbal or physical conduct, or visual forms of
harassment of a sexual nature when submission to such conduct is either
explicitly or implicitly made a term or condition of employment or is used as
the basis for employment decisions, or when such conduct has the purpose or
effect of unreasonably interfering with an individual's work performance or
creating an intimidating, hostile or offensive work environment. Sexual harassment is a general term and
includes more than overt physical or verbal intimidation. It can occur among co-workers as well as from
supervisors or managers. Lewd or vulgar
remarks, suggestive comments, pressure for dates or sexual favors and
unacceptable physical contact are examples of what can constitute harassment. It is important to realize that what may not
be offensive to one employee, may be offensive to other employees.
All employees are expected to know the procedure
to follow if sexual harassment occurs so that the problem can be corrected
quickly and effectively. Any employee
who believes he or she has been subjected to sexual harassment or has any
knowledge of such behavior should report it at once to his/her supervisor or
Department Head or to the Director of Human Resources. The Department Head or supervisor must consult
with the Director of Human Resources related to a complaint.
C.
COMPLAINT PROCEDURE - DISCRIMINATION AND HARASSMENT
IPPF/WHR strictly forbids making submission to
any harassing or discriminatory conduct a basis for an employment decision and
will do its best to keep the work environment free of any conduct that creates
an intimidating, hostile or discriminatory work environment for our employees.
Any employee who feels that he or she has been
harassed or discriminated against based on any protected personal
characteristic in the course of employment should contact his or her
supervisor, and report the relevant facts immediately. If an employee feels uncomfortable bringing
the matter to the attention of his or her own supervisor or if the supervisor is
thought to be involved in the harassment or discrimination, the employee may
contact the Director of Human Resources or the Regional Director. Charges of
harassment and discrimination will be promptly and thoroughly
investigated. Such investigation may
include witness interviews and requests for statements concerning the facts of
the complaint. Reports of discrimination
or harassment will be handled with sensitivity.
Confidentiality will be maintained throughout the investigatory process,
to the extent practical and appropriate under the circumstances, in light of
the important privacy interests of all concerned. However, IPPF/WHR reserves the right to
disclose information and take any appropriate remedial and disciplinary action
in order to discharge its legal obligations.
Records of all discrimination and harassment complaints and
investigations will be maintained for at least the same length of time as other
personnel records are maintained.
If IPPF/WHR determines that harassment or
discrimination has occurred, appropriate relief for the employee bringing the
complaint and appropriate disciplinary action against the harasser or
discriminating person(s), up to and including immediate discharge, will
follow. IPPF/WHR will make follow-up
inquiries to ensure that the harassment or discrimination has not resumed.
An employee who remains unsatisfied after the
investigation may seek review from the Board of Directors of IPPF/WHR, who may
direct or conduct an additional independent investigation and will advise the
employee of the results of the second .investigation. The Regional Director may take further
investigatory remedial or disciplinary action as is appropriate.
No employee may be retaliated against for the
good faith exercise of rights under this policy (regardless of the outcome) or for
cooperating in an investigation under this policy. Any person who knowingly makes a false or
malicious complaint under this policy will be subject to appropriate
disciplinary action.
What was admirable about this policy was
that it not only prohibited the sexual harassment of employees, but it also set
out detailed procedures to be followed by the employee who felt compelled to
complain. The one is not much use
without the other. I found the IPPF
regime so worthwhile that while I was an attorney in private practice in
Anguilla, I had occasion to encourage appropriate clients to adopt it for
inclusion in their by-laws and employee handbooks.
As elsewhere in our region, Anguilla’s
laws on the subject are defective.
Sexual harassment by male employers is perfectly acceptable under the
criminal law, provided it is directed to an adult employee and not towards a
minor. Section 158 of the Criminal
Code creates the offence of “sexual harassment of a minor” and imposes
a penalty of a fine of $10,000 or 5 years imprisonment. The offence only exists within the
environment of employment or prospective employment. So, interestingly, the section includes
sexual harassment of an adult by a minor in the employment environment. It creates the offence of the importuning of
an adult in authority by a person between 16 and 18 years of age “who holds out the promise of sexual favours
in exchange for any benefit or advantage or the forbearance from the exercise
of any right, power or duty relating to that authority”. There is no similar offence of sexual
harassment of an adult employee.
It has been left to individual
corporations and institutions to include in their bylaws and constitutions
provisions against sexual harassment. In
Anguilla, a number of organisations have begun to include such provisions in
their employee handbooks and office manuals.
So, for example, the offence is mentioned in the Anguilla Public
Service Code of Ethics. It is more
clearly spelled out in the 2001 Anguilla Association of Office Professionals
Code of Ethics which I offer up to you as an example of a worthwhile private
initiative. Clause 14 reads as follows:
14 Sexual Harassment
Sexual
harassment is any unwelcome sexual advance, request for sexual favours, sexually
motivated physical contact, and other verbal or physical conduct, or visual
forms of harassment of a sexual nature, when submission to such conduct is
either explicitly or implicitly made a term or condition of employment or is
used as the basis for employment decisions, or when such conduct has the
purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile or offensive work
environment. Lewd or vulgar remarks,
suggestive comments, pressure for dates or sexual favours and unacceptable
physical contact are examples of what can constitute harassment. We recognise that a harmonious and productive
working relationship is essential in the work place. We shall do what we must to foster harmonious
and productive working relationships that encourage mutual employee
respect. We recognise that in a few
cases there is a degree of sexual harassment in the workplace that has to be
faced up to and overcome. We shall not
ourselves engage in sexual harassment of our juniors, nor shall we accept it
from our seniors.
So long as our legislatures are
reluctant to debate and to enact laws criminalising sexual harassment, it will
continue to be the responsibility both of good corporate citizens and of workers’
representatives to ensure that their institutions’ corporate by-laws, employee
handbooks and Board policies contain provisions expressly dedicated to
outlawing sexual harassment in the workplace and providing mechanisms for
victimised employees to seek redress. I
cannot find a better process to recommend to such persons than that adopted by
the IPPF for Family Planning Associations of the West Indies.
A
presentation at a Judges’ Colloquium on “Gender and the Law”, held in Castries,
St Lucia, November 17-18, 2011
[1] See for example the 2005
ILO paper: “Sexual harassment at work:
National and international responses” by Deirdre McCann. See: http://www.ilo.org/dyn/gender/docs/RES/429/F1845214041/Sexual%20harassement%20at%20work.pdf
[2] Bank of Antigua v
Errol Williams (Antigua and Barbuda Civ App 23 of 2001) unreported decision
of 31 March 2003.
[5] “Confronting Gender-based
Violence in the Caribbean” by The Hon Mme Justice Desiree Bernard, OR, CCH,
Judge of the Caribbean Court of Justice.
See: http://ccj.org/papersandarticles/07-Confronting%20Gender-Based%20Violence%20%2029%2011%2006.pdf
[6] “Gender Tension and
Change in the Contemporary Caribbean” delivered at an Expert Group Meeting on
“The role of men and boys in achieving gender equality”, 21-24 October 2003,
Brasilia, Brazil. See: http://www.un.org/womenwatch/daw/egm/men-boys2003/EP11-Lewis.pdf
[7] The model “Protection
against Sexual Harassment Act” drafted in 1991.
[8] Published on the CCJ
website and entitled “Advances Made on Gender Equality and Women's Human Rights
in the Caribbean Region”. See: http://www.caribbeancourtofjustice.org/papersandarticles/06-Advances%20Made%20on%20Gender%20Equality%20%2010%2011%2006.pdf
[9] Article in Grenada Today:
http://www.belgrafix.com/gtoday/2007news/Oct/Oct13/Combatting-sexual-harassment.htm
[10] Entitled “Why we need
sexual harassment laws in the Caribbean” http://www.baiganchoka.com/why-we-need-sexual-harassment-laws-in-the-caribbean/
[11] Dell Mohess v Republic
Bank. See article in “Executive Time Magazine,
Caribbean Edition”. See: http://www.angelfire.com/journal/executivetime/sexual.htm
