T&T does not have a national sexual harassment policy.
Although sexual harassment in the workplace has remained a largely taboo subject which continues to be dismissed, ignored, covered up and simply swept under the carpet—it has fallen to employers both in the public and private sectors to implement measures aimed at protecting their employees.
However, efforts are now being made to fast-track legislation following the scandal involving former Sports Minister Darryl Smith and former ministry employee Carrie-Ann Moreau.
Moreau was reportedly paid off and transferred out of the ministry after allegations of sexual misconduct and impropriety surfaced.
In its Revised Edition of the Guidelines on Sexual Harassment in the Workplace released earlier this month, the Equal Opportunity Commission (EOC) assured it was currently the best avenue to address complaints of sexual harassment in the workplace.
The Equal Opportunity Act Chap 22:03 empowers the EOC to receive, investigate and conciliate these complaints free of charge. Officials said if a dispute cannot be resolved at conciliation, the matter can be referred to the Equal Opportunity Tribunal, presided over by its chairman, who has the status and powers of a high court judge.
The EOC said: “Managers and business owners in Trinidad and Tobago function in an environment that has not specifically legislated for sexual harassment.”
They urged employers to develop appropriate mechanisms for the prevention and management of complaints.
EOC chairman Lynette Seebaran-Suite wrote: “No amount of legislation and case law in the world will root out sexual harassment if employers do not ensure that there is zero tolerance for it in their workplaces.”
She added while sexual harassment prevention was more difficult than implementing grievance procedures, it is crucial to workplaces in which merit is rewarded, discrimination not tolerated and equality fostered.
Employers are being urged to be mindful that it is in their best interest to avoid the escalation of sexual harassment matters into full-blown conciliation and/or litigation outside the workplace, as such actions could prove costly and serve to tarnish the organisation’s reputation and generally negatively impact on the organisation’s end product.
Additionally, the EOC advised employers to develop complaints/grievance procedures to suit their particular workplace, which includes conferring with the organisation’s attorney to ensure the right steps are being taken to determine whether sexual harassment did in fact occur.
The guidelines read: “In offering various choices, it is vital that the manager possesses the relevant knowledge and receives the correct training to handle complaints of sexual harassment.
“Staff should also be made aware that the complaint could be forwarded to any other relevant agency external to the organisation.
“The employer should act in good faith and the employee should not be compelled to sign mandatory arbitration agreements which would strip them of their rights to sue and seek recourse to the courts.”
The EOC stressed: “The alleged victim is reminded that he/she may also lay a criminal complaint in the Magistrates’ Court against the alleged perpetrator, while a workplace investigation is being pursued. And the alleged victim is also reminded that he/she may also seek legal advice to determine whether there is merit in pursuing a civil lawsuit in the High Court.”
The Australian Human Rights Commission states sexual harassment is an unwelcome sexual advance, an unwelcome request for sexual favours or other unwelcome conduct of a sexual nature that makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.
Unwanted conduct is defined as any behaviour that is not requested or wanted by the victim and that is considered inappropriate.
Whether it was “reasonable” for the victim to believe that he/she was sexually harassed would depend on the context in which “it occurred,” for example the frequency of the occurrence, the seriousness and extent of the intimidation, the form of its manifestation and whether a hostile and offensive working environment was created for the victim.
FORMS OF SEXUAL HARASSMENT
Sexual harassment is manifested in the following forms:
(i) Misuse of sexual behaviour and request for sexual favours – when it is made a condition of employment or promotion
(ii) Physical sexual harassment – sexual violence or unwelcome physical contact
(iii) Verbal sexual harassment – offensive and sexually suggestive jokes and comments
(iv) Non-verbal sexual harassment – suggestive gestures of a sexual nature and sexually suggestive body language
(v) Written or graphic sexual harassment – displays of sexually explicit photographs and pornographic materials
(vi) Psychological sexual harassment – repeated unwanted proposals and taunts of a sexual nature
WHAT DOES NOT CONSTITUTE SEXUAL HARASSMENT
Interaction which is based on mutual consent is not sexual harassment. Sexual harassment does not refer to occasional compliments that are socially and culturally acceptable and appropriate.
CIRCUMSTANCES IN WHICH SEXUAL HARASSMENT MAY OCCUR
Sexual harassment is not just unlawful during working hours or within the confines of the workplace itself, and also not only between co-workers. The behaviour is unlawful in any work-related context including conferences, work functions, office parties and business and/field trips and includes interactions with clients and customers.
TIPS FOR REPORTING SEXUAL HARASSMENT
(i) Document incidents and unwanted behaviour as they occur by noting: –
(a) What happened
(b) Where and when it happened
(c) Who witnessed it (if anyone)
(d) How your physical condition has changed as a result of this behaviour (that is, sleeplessness, crying bouts, weight loss/gain, etc.), and
(e) What, if anything, you did about it at the time and thereafter.
(ii) Lodge complaints early and put all complaints in writing.
(iii) Secure, where possible the cooperation of other persons who have witnessed the harassment.
(iv) Seek extended support.
(v) Share with colleagues as it happens.
GUIDELINES ON SEXUAL HARASSMENT IN THE WORKPLACE
It is the employer’s responsibility to document:
(i) Conversations with the parties involved in the complaint
(ii) What actions were taken to resolve the harassment
(iii) What was witnessed
(iv) What was said, and
(v) Who witnessed any conversations/behaviour should the records need to be made available to investigators.