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IMPACT Justice Project releases overview of model sexual harassment legislation

impact_justiceBRIDGETOWN, Barbados — Improved Access to Justice in the Caribbean (IMPACT Justice), a five year regional justice reform project funded by the government of Canada, has release an overview of model sexual harassment legislation for the region.

IMPACT Justice is implemented from within the Caribbean Law Institute Centre, Faculty of Law, The University of the West Indies, Cave Hill Campus, and has as its ultimate outcome, enhanced access to justice benefitting men, women, youth and business in 13 Caribbean Community (CARICOM) member states.

IMPACT Justice is designed to address deficiencies in the justice sector in CARICOM, outside of those that are directly related to the judiciary and the courts.

Background to the Model Sexual Harassment Bill

In 1996, CARICOM produced model sexual harassment legislation for CARICOM member states. This Bill was enacted or considered for adoption, with modifications, by some CARICOM member states such as Belize which enacted a Protection Against Sexual Harassment Act in 1996; Barbados, which prepared a draft Protection Against Sexual Harassment in the Workplace Bill in 2005, and the Cayman Islands, which prepared a draft Sexual Harassment Bill in 2013.

Provisions relating to sexual harassment have also been included in other legislation relating to education, domestic violence, labour law, criminal law or tort law of some member states, some prior to 1996.

In 2014, at the request of CARICOM attorneys general, the IMPACT Justice Project commissioned the drafting of a background paper on sexual harassment legislation as well as an update to the CARICOM Model Bill. The result, the Sexual Harassment Report was presented to IMPACT Justice in March 2015.

Based on the recommendations contained in the report, the project appointed a committee, with members from the CARICOM Secretariat, regional ministries of legal affairs, gender and social services respectively to consider a model draft Bill.

The Main Clauses of the Model Sexual Harassment Bill

A. The Expanded Scope of Sexual Harassment Conduct

Consistent with the aim of sexual harassment legislation, the Model Bill seeks to establish sexual harassment as a specific legal wrong or wrongful act in respect of which the law must provide the appropriate remedies and which wrongful act may occur in a wide variety of circumstances.

Under the 1996 CARICOM Model, sexual harassment is limited to the workplace, education and accommodation. The Model Bill provisions extend the scope of sexual harassment to include other institutions such as prisons and hospitals and to the supplier and recipient of various kinds of goods including landlord and tenant, vocational trainer and trainee, purchaser and vendor of property.

Sexual harassment may arise in a number of circumstances in which there is a perceived imbalance of power between the parties and is therefore not confined to the workplace.

It is also to be noted that the language in the Bill is gender neutral so as to make it clear that both genders may be subjected to sexual harassment whether by a person of the opposite sex or of the same sex. According to Clause 3 of the Model Bill sexual harassment is defined to include conduct which involves –

(a) making an unwelcome-
(i) sexual comment to a person;
(ii) sexual comment about a person within his or her hearing;
(iii) sexual innuendo to a person;
(iv) sexual gesture to a person;
(v) sexual contact with a person;
(vi) sexual advance towards a person; or
(vii) request for sexual favours from a person;

(b) providing a person with unwelcome sexual images or graphics ; or audio of a sexual nature;

(c) transmitting unwelcome electronic messages of a sexual nature to person’

(d) exposing a third party to any conduct described in paragraph (c);

(e) making it appear to the person seeking employment that-
(i) the offer of employment to that person; or
(ii) the terms on which employment is offered,
are contingent on that person’s acceptance of or submission to sexual advances from the prospective employer;

(f) making it appear to a co-employee that the prospects or working conditions of that co-employee are contingent upon the employee’s acceptance or tolerance of sexual advances [from the person or his or her employer or supervisor];

(g) making it appear to another person that preferential treatment or advantage would only be provided upon the acceptance of or submission of sexual advances [from the first-mentioned person];

(h) engaging in conduct of a sexual nature knowing that there is a likelihood that the person whom that conduct is intended to affect will become aware of the conduct;

(i) directly or indirectly engaging in any other form of unwelcome conduct of a sexual nature.

B. Issuance of Sexual Harassment Policy Statement

An employer and a person in charge of an institution, including an educational institution, are under an obligation to ensure that there is a written sexual harassment policy statement in place and that such policy statement is brought to the attention of employees, inmates, children, patients and members of staff as the case may be. To that end, a model sexual harassment policy statement is provided for in the Schedule to the Bill.

C. Available Remedies

In seeking redress, the Model Bill provides the victim of sexual harassment with a number of options. The options are through reconciliation, by making a complaint to a tribunal such as a labour tribunal within 18 months of the alleged act of sexual harassment or alternatively by bringing court proceedings. In the case of court proceedings, the parties have a further option to request the court to appoint a mediator.

D. The Awards or Orders

Where the complaint has been investigated and a finding arrived at, the orders which the tribunal or the court may make include:

i. an order restraining the repetition or continuation of the sexual harassment conduct;
ii. an order that the respondent redress any loss or damaged suffered by the complainant by performing such reasonable act or course of conduct;
iii. the re-employment or employment of the complainant;
iv. the promotion of the complainant;
v. the payment of a money award to the complainant;
vi. the payment of the legal fees and any other costs of the complainant; and
vii. dismissal of the complaint.

E. Penalties for Non-Compliance

The penalties provided for in the Model Bill are limited to the following situations: where a party publishes the proceedings of a court or tribunal or a report of a conciliation or mediation agreement, as the case may be, without the consent of the other party; where a person is threatened with any detriment on the ground that such person proposes or has made a complaint; has furnished or proposes to furnish documents to the relevant authority; where a person induces or attempts to induce another to engage in sexual harassment; where a person fails to attend an inquiry; where a person destroys or alters any document required to be produced for the purpose of the Inquiry; where a person furnishes the court, mediator, conciliator or tribunal with false or misleading information; where a person makes a false or frivolous complaint of sexual harassment; where a person fails to comply with an award or order of the court or tribunal and where there is wrongful communication by a person responsible for the administration of the Act to another person.

F. Onus on the Recipient

Placing the onus on the recipient of the act of sexual harassment to determine whether such an act has occurred as provided for by Clause 3 of the Model Bill is practical given that there will be instances in which the same comment may be viewed as harmless and depending on the circumstances, even as complimentary.

G. Penalty for Failure to Issue a Sexual Harassment Policy Statement

While the Bill provides for the issuance of a sexual harassment policy statement by the employer, there is no penalty provision such as that which occurs in a 2016 Barbados Bill which provides that where an employer contravenes this requirement he or she is guilty of an offence and is liable on summary conviction to a fine of $5,000 or to a term of imprisonment not exceeding two years.

This Model Sexual Harassment Bill is one of several pieces of model legislation the IMPACT Justice Project will produce after consultation with regional governments.

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