Our Presentation on the Sexual Harassment Bill
Last week was very busy for us, despite not much activity on the website itself or our social media. On Wednesday, we made a presentation to a parliamentary committee on our concerns regarding the Sexual Harassment Bill. On Friday, we made a submission to another parliamentary committee on the anticipated repeal on the Customs Act, we made a submission to the Ministry of Labour regarding the anticipated increase in the national minimum wage, and one of us was invited to attend the celebration of Cuba’s National Day at the Cuban ambassador’s official residence.
If we are invited to make a presentation in parliament on the Customs Act, we will let it be known. We also plan to expand our submission on minimum wage to be a larger position paper on some broader issues affecting young workers in the country right now.
Right now, we want to give you a rundown of what happened in parliament when we made a presentation on the Sexual Harassment Bill.
We submitted our concerns in writing on December 20, 2019. In January, we were invited to make our presentation to the parliamentary committee that is responsible for reviewing the draft of the bill.
We raised 6 main concerns:
The Court
Sexual Harassment of Clients by Workers in Businesses
Sexual Harassment of Workers by Clients
Companies’ Internal Sexual Harassment Policies
The Definition of “Sexual”
Dismissal of “Frivolous” Claims
The Court
Our first question was based on comparing the 2015 version of the bill, which has since been withdrawn, with the 2019 version. The 2015 version of the bill allowed workers to take incidents of Sexual Harassment to the Sexual Harassment Division of the Industrial Disputes Tribunal, and other categories of people (like tenants) to take it to the court. The bill made specific reference to workers seeking employment and the possibility of being sexually harassed by the potential employer, in a situation where the employer would demand sexual favours in return for a higher salary or other favour; however, there was ambiguity on where a worker seeking employment would go if faced with such a problem.
This concern came from a group that used the 2015 version of the bill but was unaware of the 2019 version, and it was the Policy Coordination Committee that recognised that a particular group made reference to things that weren’t in the 2015 version. In a haste, the concern was withdrawn and replaced with another; the 2019 version of the bill directs all cases to the tribunal instead of the court. We thought this still referred to the proposed Sexual Harassment Division of the Industrial Disputes Tribunal, so we asked for clarification on that matter.
3 members of the committee intervened and advised us that there will be a new Sexual Harassment Tribunal independent of the Industrial Disputes Tribunal, rather than having a Sexual Harassment Division of the Industrial Disputes Tribunal. We were very transparent about what led to our error there, and the committee continued to listen to us with interest in our concerns.
Sexual Harassment of Workers by Clients
The next issue we decided to speak on was ‘Sexual Harassment of Workers by Clients’ - it was the third item in our written submission, but we skipped right to it in the in-person presentation. This caused more controversy than anything else during our presentation, as there was a clear divide in the committee and an interesting turn of arguments and interpretations.
In Section 3.3 of our submission, we acknowledge that there are subsections of Section 4 of the bill which mandate that every employer adopts policies concerning the prevention of sexual harassment in the business and state that workers are entitled to an environment free from sexual harassment; our concern, as you can hear in the video, is that there is no explicit protection from clients but that protection from clients would fit into the bill given that this phrasing is already there. This led to a back-and-forth between us and Delroy Chuck, a member of the committee who also happens to be the Minister of Justice; Frank Witter defended him, most other committee members defended us, then an argument started among them that brought our presentation to a pause.
Our argument was essentially that the bill already establishes that it’s an employer’s duty to prevent workers from being sexually harassed in the workplace; however, where the bill makes explicit reference to harassment by members of staff or persons in authority within the workplace, it doesn’t make explicit reference to harassment by clients or customers who are served by the business.
Delroy Chuck, as CVM says, quickly rebuffed our concern. In our opinion, he outright mocked it. He asked what we really expect employers to do, jokingly referring to whether they should put up a sign saying not to harass a worker. Frank Witter sided with Delroy Chuck against us, claiming that we can’t expect employers to do anything and that we shouldn’t make it their responsibility.
Delroy Chuck outright said that harassment by customers and clients is simply not within the scope of the bill and that the bill shouldn’t address what we want it to address. We, along with other members of the committee, cycled back to saying that the bill already establishes that employers are responsible for ensuring that the workplace is free from sexual harassment, so it is already in the scope of the bill. Senator Sapphire Longmore seemed to side with Delroy Chuck, with both of them thinking that we want to control too many things and make provisions for every possible instance of sexual harassment. Delroy Chuck and Frank Witter insisted that it would be unfair for a worker to bring an employer before the tribunal for an incident where a customer harasses a worker, since the employer can’t control the actions of the customer.
We didn’t feel like that was a fair phrasing of our concern, and said that our fear is that a customer will sexually harass a worker, then a worker may react in a way that leads to the employer reprimanding the worker in the name of customer service. We were quickly defended by Senator Kavan Gayle, a labour unionist from the BITU. Where Delroy Chuck implied that sexual harassment in the entertainment and Tourism sectors are too common for us to do anything about, we retorted that we already know that those incidents are common and that that’s why we’re proposing this. In our written submission, we cited a newspaper article talking about hotel workers complaining about frequent sexual harassment by tourists. We outright stated that “The most vulnerable workers in this case are in businesses that serve food, provide entertainment, and/or accommodate tourists” and did not back down from defending them when Delroy Chuck was being dismissive.
Angela Brown-Burke and Senator Donna Scott-Mottley sided with us and outright said that they support our suggestions, and they decided to engage in the back-and-forth with Delroy Chuck and Frank Witter, and explain to the chair, Babsy Grange, why our proposal was important. Senator Frazer-Binns also hit back at the members who dismissed our concerns, saying she doesn’t see why the bill shouldn’t address sexual harassment by clients and customers.
Helping to bring this to a conclusion and move the discussion along, Senator Scott-Mottley made specific references to sections in the bill under which our concerns would be addressed. At that point, we reiterated that we see that the bill has certain language that sets the premise for addressing what we want, but that we want more explicit and clear language. Senator Sapphire Longmore came at us at this point, because she didn’t see why we were pressing for more explicit language if the bill supposedly addresses what we want it to address; we said there is still an issue because her own colleagues sitting beside her had interpreted the bill in a way that led them to say that our concern isn’t even in the scope of the bill and that the bill shouldn’t address it. Kavan Gayle quickly distanced himself, and we clarified that we were referring to Delroy Chuck and Frank Witter.
We doubled down and pointed out the interesting turn in the entire response to what we put forward. The first argument was that sexual harassment of workers by customers is not within the scope of the bill and that provisions shouldn’t be added. The second argument was that the bill doesn’t address it adequately but that it should. The third argument was that the bill already addresses it somewhat. How Senator Sapphire Longmore ended up making both the first and third arguments simultaneously is beyond us. The other members of the committee who made the third argument were still supporting us and our call for more explicit and clear language.
Sexual Harassment of Clients by Workers
We discussed our concerns around sexual harassment of clients by workers. In our written submission and the first things we said in person, most examples would revolve around a worker taking a client’s contact information without the client’s permission or to contact a client for reasons that fall outside of the client’s expectations. A legal team that was present had advised us that this may be covered under the Data Protection Act which is also up for review soon, but we said that harassment through digital means isn’t the only form we have to think or worry about.
We brought up catcalling and even sexual harassment that can still be done by police officers, security guards, and other types of workers. We also brought up the possibility of someone visiting a patient in a hospital and being sexually harassed; a hospital patient is covered by the bill, but a visitor (who can be considered a client) is not. If you are in the hospital, the bill allows you to seek redress if you are sexually harassed, but the bill doesn’t have a provision if your mother is sexually harassed while visiting you.
Companies’ Internal Sexual Harassment Policies
The bill requires individual companies to have their own internal sexual harassment policies. We made a simple suggestion that the Ministry of Labour could take on the task of drafting templates for sexual harassment policies, and went further to suggest that there could be a general template for any business, as well as some templates for certain sectors or business types. The provisions of these templates would make it much easier for businesses to craft their internal policies, and could even help to align their internal policies with the goals of introducing this legislation.
We referred back to the whole confusion during the discussion of sexual harassment of workers by clients, and the fact that even members of the committee first had different interpretations of whether the bill already addressed that, and also whether the bill should address that. If even the Minister of Justice and some legislators are having issues here, the average person who isn’t going to sit and comb through the bill may also have issues. These templates could really help to ensure that the legislation has the intended effects, since it relies on businesses to enact their own policies.
We also wanted the legislators to clarify who is responsible for creating sexual harassment policies in public sector institutions. With time running along, we didn’t press much into this but we hope that they take note of it.
The Definition of “Sexual”
Due to pedantic wording in other legislation, “sexual” offences are very specific and this has a strange outcome in our legal system where a man cannot technically commit a sexual offence against another man. If a man rapes another man, it is not considered rape under our laws, because a man penetrating another man isn’t “sexual” according to our laws.
In the Sexual Harassment Bill, making “sexual innuendos” and making “a demand or request for sex” are among the things that can be considered sexual harassment. Where a man uses suggestive language to allude to penetrating a woman, or when he outright demands sex, that would obviously be considered sexual harassment. In the case of a man using suggestive language to allude to penetrating another man, or when he outright demands an opportunity to do so, this isn’t considered “sex” by our other laws, so our concern here is whether the Sexual Harassment Bill will be gender-neutral and whether it will protect persons from uncomfortable advances from other persons of the same sex.
During this presentation to the committee, we didn’t call for the others laws to be amended, though we had made a presentation to another parliamentary committee about those laws on their own. We simply asked that legislators pay attention to the fact that wording can complicate the application of law, and we asked to ensure that the legislation would be applied in a gender-neutral way.
“Frivolous” Claims
We were concerned about a subsection of Section 27 of the bill which says that an investigation would be conducted if a complaint “is not frivolous or vexatious” - and this raises major concerns. Section 28, the following section, already outlines an outcome where a Tribunal can find no evidence of sexual harassment, but this would be after an investigation and hearing. To dismiss a complaint entirely as “frivolous” without any investigation or a hearing would be unjust, and would scare off persons from making legitimate complaints. We asked for that line to be amended or removed.
General Remarks
Our experience with the committee was positive overall. We are extremely grateful for the support we received from Kavan Gayle, Angela Brown-Burke, Donna Scott-Mottley, Sofia Frazer-Binns, and Babsy Grange who was the chair of the committee. We also received some validation from Kerensia Morrison. We were very disappointed with some things said by Delroy Chuck and Frank Witter, and a bit confused by the positions of Senator Sapphire Longmore.
Interestingly, the divided response to our presentation was not along party lines. With the exception of Senators Kavan Gayle and Sapphire Longmore, the division was along the line of gender. We believe that Senator Kavan Gayle found himself defending most of our points because of his experience with industrial disputes and his familiarity with workers facing the issues that we are concerned with.
You can read our full submission below.
The committee said that they had not received as many submissions as they had wanted to, so there may be another public call for submissions to be made. We are interested in helping other groups and organisations with making submissions, in terms of helping with the format and structure of the document. Feel free to contact us.