Towards a stronger Sexual Harassment BillWednesday, March 31, 2021
A Bill Johnson poll conducted in the summer of 2020 found that 85 per cent of Jamaicans are in agreement with the Parliament passing a Bill to outlaw conduct which we call sexual harassment. To this end it seems that we all welcome the fact that Gender Minister Olivia “Babsy” Grange has been very strident in continuing the work of former Prime Minister Portia Simpson Miller, who had led on this issue during her final years as a parliamentarian.
I have been following the discussions of this issue as the Bill is being reviewed by a joint select committee of the Jamaican Parliament, and I have been impressed with the quality and the standard of the discourse. However, having read the Bill, and having regard to the widespread support that this Bill is receiving, I took a decision to share some of my thoughts on aspects of the Bill that should be re-examined before it is presented to either of the two Houses of Parliament for final debate and a vote.
Let's start with the definition of sexual harassment, which we find at clause 2. We have opted for a definition that will ultimately have the effect of limiting the actual types of complaints or cases that can be taken forward. This rather limiting approach is achieved by a focus on “unwanted sexual advances”, which of course serves to make the infringement a physical one, and this is something that we all understand.
The Bill gives a definition of what constitutes “sexual advance” by creating a list of five things that are prohibited (sending pornographic images, making sexual innuendos to another person, etc). These are the types of instances that I do not imagine that the proposed Sexual Harassment Tribunal (SHT) will have a problem discerning. However, given the varied forms that harassment can take, it would seem to me that, by opting to have a list of five, we are placing an unnecessary fetter on the evolution the definition of sexual harassment. In fact, I would suggest that we expand the definition of sexual harassment to include “other unwelcome conduct of a sexual nature”, and then remove that rather restricting list of five. The result of this approach is that you will be leaving it up to the expert panel of the SHT and the courts, to interpret the statute and apply it to real-life experiences, which will have the effect of not closing the categories of what can constitute sexual harassment, while ensuring that the evolution does not open the floodgates whereby anything that is raised is given the blessing of the law.
This leads me neatly into my second point of concern and it is that the lawmakers are opting in the definition for a subjective test of what constitutes sexual harassment. When the statute says that the unwelcome sexual advance will constitute a breach if it is “reasonably regarded as offensive by the person toward whom the sexual advance is made”, it is really setting a rather low bar for such a breach to be proven at the SHT. The employment of the adverb “reasonably” I suspect is meant to create a semblance of an objective test, but I cannot see how this will be achieved when it is clearly stated that it is the perception of the putative complainant that the tribunal should be concerned with.
Our lawmakers, who are undoubtedly working hard on this Bill, might need to recast this definition so that it has a two part test: A subjective as well as an objective element. The importance of the objective element cannot be overstated, as the public would want to know that, where such a complaint is raised, the tribunal will also be engaged in a process of ascertaining whether it was reasonable for the conduct to have been regarded in the manner that the putative victim has regarded it — not just what she or he feels about the alleged unwelcome advance or conduct. This objective test brings that element of reasonableness to the assessment that the tribunal will be engaged in and it will compel the tribunal to engage with the actual circumstances and, in effect, weed out potentially unmeritorious or even false claims.
Within discrimination jurisprudence the concept of victimisation or, as our American lawmakers call it, “retaliation” is very important. Victimisation takes place when a person asserts a right and the employer (in a employment context) responds by punishing that person; for example, by terminating their contract or by failing to pay to that person his/her bonus, etc. Under the Bill, victimisation is recognised at clause 38, which creates a criminal offence that is to be dealt in the already overburdened parish court. When such a breach is heard in parish court, the putative victim (that is the person who has lost his/her job or bonus) has no prospects of advancing a separate claim to the tribunal to obtain damages as the Bill does not create victimisation as a legitimate standalone complaint that can be advanced in the tribunal. This, unfortunately, has the potential to undermine the objective of the Bill.
Potential complainants, already fearful of retaliation, will be reluctant to bring a complainant against an existing employer because of fear that they might lose their job. To compound matters, such a complainant does not stand to gain any financial remedy. I doubt that this is the intent of those who are drafting the Bill, and there is a solution in that we can either create a standalone Victimisation Act, which can be advanced in the tribunal with the tribunal empowered to make a financial award for such a breach. This can be done by amending clause 7 by including victimisation as an additional prohibition. This would be consistent with the fact that at clause 25(4) and (5) the draft does anticipate victimisation, as it offers this very factor as a reason for the SHT allowing a complainant to proceed with a complaint before going through the internal procedure at his or his place of work or school.
Clause 38 is still needed as it offers a useful sanction against those who will wish to victimise complainants, but by adding a specific prohibition against victimisation at clause 7, the lawmakers will be giving the issue of victimisation the type of dual primacy which it will need as we should not make no bones about it, discrimination legislation cannot work effectively if genuine complainants are not supported.
There is of course the issue of the dual role (investigatory and adjudicatory) that the proposed SHT will play, and the consideration of whether this dual role will be undermining to any of our cherished constitutional principles. This will be the subject of a separate instalment. At this stage it is correct, as Minister Grange says, that Jamaicans want this legislation to be enacted, but what they do not want is a weak legislation. To avoid this this draft Bill can benefit from an extension of time that it has with the joint selection committee.
Matondo K Mukulu is a practising attorney and barrister in London, England. Send comments to the Jamaica Observer or email@example.com.
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