Sexual harassment vs sex discrimination

ROBERTA CLARKE

THE JUDGMENT of the Equal Opportunity Tribunal in the case of Maharaj vs Cascadia Hotel Ltd comes as a surprise. The complainant was alleging that the offensive sexualised behaviour he experienced in the workplace constituted discrimination.

The tribunal dismissed the case because it held, among other things, that it did not have jurisdiction because the Equal Opportunity Act does not explicitly define sexual harassment as a form of sex discrimination. For the tribunal to interpret sex discrimination in this way would be to usurp the legislative function. It would be to make law where the act was silent.

This is a somewhat conservative judicial approach, particularly where human rights are concerned. It would have been open to the judge as a general principle to accept that sexual harassment is a well-recognised category of discrimination on the basis of sex.

This is an outcome which will most certainly be tested on appeal. Over 30 years ago, the Canadian courts found that even in the absence of dedicated legislation, sexual harassment was a form of discrimination based on sex, which is prohibited by human rights legislation.

The 2019 ILO Violence and Harassment Convention also makes the connection between sexual harassment and discrimination, calling on countries to enact laws ensuring the right to equality and non-discrimination in employment for women workers, as well as for other people in situations of vulnerability that are disproportionately affected by violence and harassment in the world of work.

Here in TT, there have been cases taken to the Industrial Court where sexual harassment is understood as unfair treatment or as a breach of the duty to provide a safe working environment. Unlike the Industrial Court, the tribunal was not considering whether the treatment of the complainant was unfair (if proven to be true) but whether he had experienced discrimination.

Along the way, the tribunal judge shared some perspectives that should be discussed. For one, she thought that our understanding of what constitutes sexual harassment should be culturally informed:

“Trinidad and Tobago is well known for its affability and warmth. Balance between liberalism and conservatism, so visible for example at Carnival, can be disconcerting to a stranger who is greeted with the refrain ‘gimme a wine dey;’ the tolerance for the off-the-cuff sexually tainted comment may be peculiar…I would be slow, for example, to hold that in the culture of this country, words such as ‘sexy’ or ‘babe,’ unless accompanied by discriminatory conduct within the scope of the act, can be actionable.”

One of the particularities about sexual harassment is the extent to which abusive behaviour can be characterised and justified as acceptable cultural interaction. The international trends in the definition of sexual harassment generally include sexist remarks/behaviour that create a toxic or hostile environment, inappropriate sexual advances, sexual requests (explicitly or implicitly) in exchange for sexual favours (quid pro quo), and coercive sexual activities including threat of punishment or sexual assault.

It is perhaps sexist remarks and behaviour (toxic environment) that causes the most confusion. One person’s “try a ting” is another person’s inappropriate and harmful conduct. Who defines what harassment is? It is now generally recognised in law that the perception of the person on the receiving end should determine whether words and behaviour amount to sexual harassment, particularly if objections had been voiced. The experience of sexual harassment necessarily will be subjective.

And let’s be clear. There is no culture of tolerance in TT of non-consensual sexual behaviour, even though there may be failures on the part of the State to protect and give remedies for those whose rights have been violated.

In this case the complainant complained of being called babe, hot, sexy. He alleged that his supervisor slapped him on the buttocks and pinched his waist. Well who wants to be spoken to or treated like that in any workplace?

Where does this case leave us? It comes at a time when we are hearing more about sexual harassment. Yet, as is the case in the recent shambolic response to allegations against a former minister, we still do not have regular, transparent and effective procedures that would either prove or exonerate the people involved. This must affect public confidence in equal treatment and the protection of the law.

The tribunal is not wrong when it says that clear legislative guidance should be given. There are many gaps in the legislation, including the failure to protect people against discrimination on the basis of sexual orientation, age and HIV status. All of this is well appreciated and recommendations have already been made to an ad hoc committee to consider amendments to the Equal Opportunity Act. Why have these needed amendments been so delayed?

And in the meantime, there is a national workplace policy on sexual harassment laid before Parliament in March. What is the status of this policy?