EDITORIAL: Towards a less hostile work environment

“Sexual harassment transcends occupational and professional categories, age groups, educational backgrounds, racial and ethnic groupings and income levels…” – European Commission.

Now awaiting proclamation only for it to enter into force as law, the Employment Sexual Harassment (Prevention) Bill 2017 has been approved by both Houses of Parliament, with the Senate concluding debate on it on Wednesday of last week.

The gestation period of this statute, as appears to be the local norm for employment related legislation these days, was a lengthy one. It was over two decades ago that CARICOM draft model legislation on Sexual Harassment, thus making this enactment perhaps second only to the legislation protecting the employee against an unfair dismissal by an employer which was conceptualized in the mid-1980’s and ultimately became law as Part VI of the Employment Rights Act 2012.

We are forced to concede however, that the delivery of this statute would have had to contend with the many doubts expressed in some quarters about the need for its creation in the first place, and subsequently, when the “embryo” appeared in the form of a draft bill, it was subjected to an assault of all the familiar myths surrounding this form of misconduct. These included its incompatibility with our cultural norms; that much of what is called sexual harassment is merely harmless flirtation; and that many such accusations are purely fictitious.

The statute takes care of many of these objections by providing first, that the comments or jokes complained of as constituting sexual harassment must be unwelcome to the recipient. Clearly, this criterion would be satisfied if the recipient’s discomfort has been made clear to a perpetrator, or where the conduct is so outrageous that no individual could have possibly thought that it would have been welcomed. Further, it is also expressed that the fact that there has been a single incident only of the impugned conduct does not preclude a finding of sexual harassment. This serves to fortify the latter point.

Second, according to clause 28 of the debated Bill, the individual who makes a false complaint of sexual harassment against another commits a criminal offence and remains liable to a fine or imprisonment on summary conviction. It should be added that such an individual might also be subject to an action in defamation on proof that the allegation was maliciously made.

As the ongoing revelations concerning the misconduct of Harvey Weinstein in the US clearly demonstrate, sexual harassment is no respecter of the fame or fortune of the victim and is not restricted to any one type of perpetrator. Indeed, it is the influence and status of the harasser that might make him or her consider themselves to be immune from censure.

In the absence of a local statute offering protection against discrimination on any of the traditional grounds in private sector employment, one desideratum of the decent work agenda, we believe that this Act will go some way in alleviating the current situation until this similarly long-promised piece of legislation is enacted.

As its short title implies, the legislation is directed towards sexual harassment in the employment context solely. It might have been extended, as has been done elsewhere, to cover the areas of educational institutions and the context of the rental of accommodation where sexual harassment is equally probable and not merely between employees.

Employers should thus be careful to create a no-tolerance approach to sexual harassment at their workplaces, thereby creating a climate of safe work and ensuring the welfare of their employees, as is their obligation.