TA B L E O F C O N T E N T S
TITLE
PAGE NUMBER
PREFACE
3
SEXUAL HARASSMENT 101: DEFINING THE LOW THRESHOLD
4
QUOTES TO REMEMBER
5
EQUAL OPPORTUNITY COMMISSION GUIDELINES
6
COMMENTARY ON EOC GUIDELINES
10
“MEN TOO” : THE MALE PERSPECTIVE
12
SEXUAL HARASSMENT AND DOMESTIC WORKERS
15
WOMEN WORKING FOR SOCIAL PROGRESS
15
CASE BRIEF: BANK EMPLOYEES UNION V REPUBLIC BANK LTD
16
POEM : “THE FIRST TIME”
17
REVIEW & COMMENTARY ON MINISTRY OF LABOUR DRAFT POLICY
18
FREQUENTLY ASKED QUESTIONS
21
NOTES
23
P R E FA C E We, the students of the “Sexual Harassment” group of the Human Rights Law Clinic 2018 compiled this Handbook as a key tenet of our advocacy against Sexual Harassment in the workplace. We chose to create this handbook for our substantive project in order to raise awareness on this topic for any person in the general public to understand. We hope that this handbook may inspire the various NGOs, Government Ministries and major stakeholders who may be recipients of this handbook to place specific legislation against sexual harassment at the top of the legislative agenda.
agreeing to promote the handbook going forward. We express gratitude to our family and friends who would have given their love and support throughout the entire process. Special thanks to the various artists that created unique art pieces for use in this handbook. To the many others who would have played a part in bringing our idea to fruition – we thank you! If you are reading this handbook we want to remind you that sexual harassment remains a prominent issue in Trinidad and Tobago and it is our duty as citizens to push for greater protection for those persons affected by sexual harassment.
This handbook was compiled within the very strict timeline of October to November of 2018. We worked assiduously towards our completion date but we always kept in mind the need for clarity, accuracy and simplicity. We would like to specially thank the tutors of the Human Rights Law Clinic, Mr Jason Nathu and Mrs Nisha Mathura-Allahar for their guidance in bringing this project to completion. We are grateful to the members of the group “Working Women” for their assistance and for
Regards, Sara Martinez Ansar Mohammed Casiana Sankar Rachel Weekes Human Rights Law Clinic 2018 Hugh Wooding Law School
3
S E X U A L H A R A S S M E N T 1 0 1: “ D E F I N I N G T H E L O W T H R E S H O L D ” Sexual harassment is not a new problem, it has always existed and continues to exist in Trinidad and Tobago and across the world. With its harsh reality, sexual harassment often manifests itself into the workplace. One of the main reasons for this is that many persons are generally unaware of the very low threshold of behaviours which constitute sexual harassment. We want to help you understand this low threshold. So, what is sexual harassment? Sexual harassment is a behaviour. It is any kind of…
❖unwelcomed or uninvited behaviour ❖of a sexual nature ❖which strips away a person’s dignity by making them feel uncomfortable, offended, intimidated and/or hinders their ability to perform their duties. Breaking down the definition: Type of Behaviour: Behaviour must be “unwelcomed or uninvited”. This type of behaviour is subjective in nature. This means that it is dependent on the person and whether they consider this behaviour to be unwelcomed or uninvited. This understanding is important because not all behaviours of a sexual nature will be considered unwelcomed or uninvited as some persons can tolerate more than others, despite how offensive someone’s behaviour is. The Act: The underlying theme is that all acts done must be “sexual” in nature. However, this does not mean that the act must be physical. Sexual harassment can be verbal or non-verbal. These can be very simple acts. Some specific examples include:
• • • • • •
Sexual advances & Requests for sexual favours Cat Calling & Sexually suggestive signals Making sexual jokes, stories and comments Staring, Hugging, Kissing, Patting, Stroking Making sexual gestures with hands or through body movements Making facial expressions such as winking, throwing kisses, or licking lips
• Giving an unwanted massage or gift • Standing close or brushing up to someone • Unwanted letters, telephone calls with materials of a •
sexual nature. Unwanted sexually explicit emails, text messages
Where: Sexual harassment can occur at any place and at any time. Both in and out of the workplace. The workplace being any place that a person attends for the purpose of carrying out their work or trade. This includes work-related activities and events. Who: Almost anyone can be a perpetrator of sexual harassment. In the workplace, it can include: employers, employees, managers, contractors, agents, clients, customers and others connected with or attending a workplace. It is not gender specific, both male and female can be victims and perpetrators of sexual harassment. The Impact: Sexual harassment leaves a lasting impact on victims. Victims are often affected emotionally and psychologically. In the workplace, sexual harassment detrimentally affects the work environment and may lead to unjustifiably adverse job-related consequences such as denial of promotions, work performance, job security, among others. Essentially, it creates a hostile working environment for persons which severely affects the employee’s ability to do his or her job. At this point, when you are thinking of the acts or behaviours which constitute sexual harassment, this low threshold should be familiar to you. Any act which satisfies the above requirements amounts to sexual harassment. So, when this happens to you, you need to recognize it as such and don’t be afraid to speak out. Report it and demand a remedy! If you are being sexually harassed in the workplace: what can you do? While Trinidad and Tobago does not currently have legislation specifically on Sexual Harassment, there are several remedies which are available to victims of sexual harassment in the workplace:
4
Constitutional Claim: Section 4 of the Constitution of Trinidad and Tobago protects persons from being discriminated on the basis of sex, equality of the law and protection of the law. This must be done by a constitutional claim. Sex Discrimination under the Equal Opportunities Act Sexual harassment is treated within sex-discrimination in the Equal Opportunities Act, Chap: 22:03 (“EOA”) of Trinidad and Tobago. A victim may seek redress in Section 5 of the EOA against their harasser. This includes dismissal and/or treatment based on sex. Indecent Assault: Sexual harassment may sometimes amount to indecent assault based on Section 15 of the Sexual Offences Act, Chap 11:28. This is a criminal offence. "Indecent assault" is an assault accompanied by words or circumstances indicating an indecent intention. Therefore, sexual harassment can find a remedy under criminal law once it meets the requirements. Occupational Safety & Heatlh Act (“OSHA”): OSHA prohibits sexual harassment in Section 6 of the Act where it recognises the duties of employers to their employees. Sexual harassment is a breach of their duties as it creates a hostile and psychologically unsafe environment for employees. Therefore, victims may commence an action in accordance with Section 6.
QU OT ES TO REMEMBER
“I can be changed by what happens to me but I refuse to be reduced by it” Maya Angelou
“You’re not a victim for sharing your story. You are a survivor setting the world on fire with your truth. And you never know who needs your light, your warmth and raging courage” Alex Elle
Common Law Remedies: Recent Industrial Court cases (common law) have recognised employer’s obligation to provide a safe place of work for their employees. Where employers fail to do so, courts may award compensation to victims.
“Truth does not change according to our ability to stomach it” Flannery O’Connor
5
T H E E O C G U I D E L I N E S AT A G L A N C E The Equal Opportunity Commission’s (“EOC’s”) Guidelines provide a valuable fount of information for employers, employees and the general public. The guidelines have been presented in a comprehensive document for use in the public domain. It is, however, quite a lengthy document. Here’s a very simplified version of these guidelines for quick reading. THE CURRENT LEGAL FRAMEWORK ON SEXUAL HARASSMENT Why have legislation? Sexual Harassment legislation would encourage employers to introduce workplace policies on sexual harassment in order to influence compliance. What should sexual harassment legislation do? Sexual harassment legislation should define sexual harassment, provide a mechanism for preventing sexual harassment, place an obligation on employers to take immediate and appropriate action through a workplace sexual harassment policy, treat both the harasser and the harassed fairly, define where is “work”, prohibit employers from forcing employees to sign mandatory arbitration agreements and outline remedies for misconduct. CARIBBEAN APPROACHES
6
TRINIDAD AND TOBAGO’S APPROACH Trinidad and Tobago has no stand-alone sexual harassment legislation. Nevertheless, these are some of the relevant pieces of legislation through which sexual harassment is addressed:
 
7
FORMS OF SEXUAL HARASSMENT
Checklist This checklist can be used as a guide by employers when drafting sexual harassment policies for their organisations. This handy checklist includes twelve basic components which should be included: • A strong opening statement on the organisation’s attitude to sexual harassment • An outline of the organisation’s objectives • A c l e a r l y w o r d e d d e fi n i t i o n o f s e x u a l harassmentregarding sexual harassment
• Examples of sexual harassment that are relevant to the particular working environment • What sexual harassment is not • A statement that sexual harassment is against the law • The circumstances in which sexual harassment may occur • Grievance and Complaint Procedures • The consequences that can be imposed if the policy is breached • Responsibilities of management and staff • Information on where individuals can get help, advice or make a complaint • A brief summary of the options available for dealing with sexual harassment
8
MECHANISMS Prevention
Disciplinary Action
Employers can deter instances of sexual harassment in their organisation by:
Forms of disciplinary action should be established to foster deterrence. These should be included in the company regulations or the collective agreement.
•Introducing a sexual harassment policy and ensuring that it is communicated to each workplace participant in an understandable manner. • Taking appropriate remedial action to deal with complaints of sexual harassment.
Response Employers should implement effective and accessible procedures for receiving sexual harassment complaints from employees.
Protective and Remedial Action Employers should take all steps to prevent victimisation and retaliation against complainants, particularly where the alleged harasser is of superior rank. Employers should also take steps to restore and compensate the complainant as far as possible, where sexual harassment claims have been substantiated.
The complaint procedure must at least contain: i.An orderly procedure for the reporting and processing of complaints, with an appropriate timeframe for each step; ii.Investigation procedures; and iii.An appeal procedure that allows parties who are not satisfied to appeal against the results of investigations to the higher authorities.
9
C O M M E N TA R Y O N T H E E O C G U I D E L I N E S “ H I G H L I G H T I N G E X I S T I N G D E F I C I E N C I E S . P R OV I D I N G A WAY F O R WA R D . ”
The Equal Opportunity Commission’s (“EOC’s”) Guidelines on Sexual Harassment in the Workplace leave little doubt in the mind of the reader regarding the state of sexual harassment legislation in Trinidad and Tobago, the need for sexual harassment policies within organisations and the methods through which such policies may be effectively implemented. The Guidelines presented are:
• Comprehensive The Guidelines appear to make provision for a wide range of situations which may arise in the workplace. They anticipate diversity in the size and resources of the organisation, the hierarchy of management and the relationships between management and less superior employees. Every guideline given is also backed up by a significant amount of detail.
• Well- Structured The Guidelines flow in a logical manner. A solid foundation is laid at the beginning with definitions and comments on legislation. Each section thereafter logically flows from the one before it. The document is thus quite easy to follow, despite its length. It is also obvious that the EOC went to great lengths to ensure that the Guidelines were easily understandable. Little to no legal or technical jargon is used, resulting in a document which can be understood by the general population of employers and employees.
• Practical Employers are presented with a workable framework for their internal sexual harassment policies. Each suggested component is described along with a stated purpose. Employees are presented with a framework which recognizes the need for dignity to be maintained throughout the investigative process. The suggested framework also appears to capture a healthy balance between the interests of the complainant and the alleged harasser.
But there’s always room for improvement. Although the Guidelines adequately present the need for sexual harassment legislation, and skilfully explain what the contents of internal policies should be, room for improvement is ever-present. The Guidelines address sexual harassment in a primarily organisational context. This excludes employees who operate outside of an organisation. Contract workers do not exist within the management/employees hierarchy and may not have the benefit of the suggested methods of addressing sexual harassment, in the event that they are harassed. Domestic workers such as baby-sitters, house-keepers, yardmen and cooks also remain unprotected by these Guidelines. Further, the definition of sexual harassment as stated by the Australian Human Rights Commission was utilised in the section, “Defining Sexual Harassment”. One of the stated purposes of the Guidelines is to “enable employers and managers to better understand how the law is meant to work”. Such understanding may be more effectively furthered by providing a definition of sexual harassment from a local source, perhaps from a judgment of the Industrial Court. Overall, it can be stated without a doubt that the Guidelines presented by the EOC provide a solid foundation for any employer to formulate and effectively implement a workplace policy which is fair to all parties and protective of vulnerable employees. They clearly illustrate the existing avenues through which employees can seek redress when they have been sexually harassed and highlights the need for specific legislation to cover such instances.
Disclaimer: The views, thoughts and opinions expressed in this commentary are solely those of the authors of this handbook.
10
By: Corey Marshall Corey is an Attorney-at-law and a former student of the Human Rights Law Clinic. He did this piece to highlight the pervasiveness of sexual harassment in all workplaces.
11
“MEN TOO”: THE MALE PERSPECTIVE It is common knowledge that the majority of reported sexual harassment cases, both in and out of the workplace, are made by women. Also, recent popular movements have resulted in high-profiled men being arrested for sexual harassment. For some, this may leave the impression that perpetrators are only male. However, you should know that “men too” are indeed affected. Perhaps, the difficulty in believing this may have some basis on the fact that in the Caribbean context, there is the floating myth that “real men” don’t experience sexual harassment. As men we should “embrace it” because it supposedly makes us more of man and reporting it is “unmanly”. Here’s to ripping all those misconceptions to shreds! 1.Fear of Embarrassment: After considering recent surveys done on sexual harassment. It was clear that most respondents to questionnaires on the topic were, overwhelmingly, women. For instance, one Caribbean survey posted in the Journal of International Women Studies concluded that 76% of the respondents were women. The author noted that men were generally unwilling to participate. However, the men who did answer noted that they usually kept instances of sexual harassment to themselves. One of the main reasons reflected is the ‘fear of embarrassment’. They are fearful of the backlash from their co-workers, friends, colleagues and others. Their concerns are heightened by fears of judgment on their masculinity and/or sexuality. Also, there are fears that their claims would be a joke and not be taken seriously. In all, this shows why statistically, reports made by men are fewer in comparison to female and it is not simply, that it doesn’t exist. 2.The Damaging Impacts: The importance of men reporting and speaking about their experiences with sexual harassment is further highlighted by the adverse impacts it has on their personal lives. It is very common that sexual harassment has a severe impact on the mental health of men. Not talking about it or addressing it as a problem makes this even worse. Findings show that male victims of sexual harassment often experience anxiety, depression and alcohol and substance abuse. The damaging effects of this is that it can lead to under achievements in the workplace. The final blow may be suicide, dropping out of school, quitting work and low morale.
12
3.What you can do moving forward: !Acknowledge & Report: The first step to moving forward is acknowledging that sexual harassment in the workplace, towards any gender, is wrong and should not be tolerated. Secondly, you should raise the issue, report it and seek the appropriate help, whether it be with human resources at the workplace or with the law.
!Professional HR Departments: A Safe Space: It is not biased to say that men need to have a safe space for being able to freely speak about their experiences at the workplace. The best solution is for businesses or companies to have adequate and professional persons within their Human Resources department who are prepared to help. Men will be more willing to speak out in those circumstances.
!Treat men’s claims seriously: All complaints of sexual harassment in the workplace should be taken seriously. The process for making complaints within the workplace should be easily understood by all persons. Further, the investigative process should be thorough and fairly done. All persons involved should be assessed with confidentiality. All persons should be free from unnecessary judgement and ridicule. All remedies and options available to victims should be provided and appropriate actions taken where sexual harassment is found to exist.
!More studies needed: In writing this article, it became known that male sexual harassment in and out of the workplace is not a popular area of study. The lack of statistical data is also notable. An assumption based on this is that, the data which exists is not an accurate account of the high level of sexual harassment among men. The numbers are definitely more! So, moving forward, more studies are needed. An appeal is therefore made to all persons to research and broaden this area so that more can be done, and progress can be made, especially in the Caribbean context. After all, male sexual harassment in the workplace is like any other form of sexual harassment and this should remind you that it definitely happens to men too. 

13
By: Renelle Williams. Renelle used a monochromatic colour scheme using red to represent danger. She put the woman in heels in the background to emphasize her power over the man and a rope in her hand to symbolize his silence.
14
S EXUA L HA R ASSM E NT A ND D OM EST I C WOR K E RS There is no enacted legislation to address sexual harassment in the workplace in Trinidad and Tobago. Employees do have some recourse in that they may bring forward a complaint of discrimination based on sex in the Industrial Court against their employer. Section 2 of the Industrial Relations Act Chap 88:01 of Trinidad and Tobago defines what a worker is, and also explicitly states that the definition of worker does not include anyone employed in “any capacity of a domestic nature, including that of a chauffeur, gardener or handyman in or about a private dwelling house and paid by the householder.” Furthermore, section 13(1) of the Equal Opportunities Act Chap 22:03 states that sections 8-10 of the same act, which protect employees from discrimination by employers, do not apply to the employment of less than three persons in domestic or personal services in or in relation to the home of the employer. Therefore, it can safely be said that there is little to no recourse for domestic workers who have been sexually harassed at work against their employers. Arguably, domestic workers are more in need of legislative protection than those who work for companies which already have internal policies to regulate conduct in the workplace. With no supervisors or managers to report instances to in the workplace, domestic workers are left
without any form of redress as they cannot even seek redress at the Industrial Court. The lack of redress for employees that have been sexually harassed, including domestic workers can have significant psychological effects on the individual. Additionally, the lack of legislative protection for victims of sexual harassment inevitably means that a person subject to such behaviours has no redress at law until the behaviour escalates to sexual or indecent assault. Ideally, the idea of protection of individuals from sexual harassment should aim to prevent instances of sexual assault in the workplace and thus, the exclusion of certain groups from legislative protection may be considered counterproductive. As a solution, Trinidad and Tobago should follow the example of Belize and enact specific legislation to deal with sexual harassment. The Protection Against Sexual Harassment Act 2000 Cap 107 of Belize provides redress for victims of sexual harassment, and does not exclude domestic workers. As Trinidad and Tobago continues to develop, so too should our laws. The Industrial Relations Act should be amended so as to afford protection to domestic workers. Additionally, specific legislation needs to be put into place to protect all victims of sexual harassment.
WOM E N WOR K I N G FOR SO C I A L P RO G R ESS “ WOR K I N G WOM E N ”
Background Founded in 1985, Workingwomen embarked on their mission to create positive spaces for women, men and children, of all ethnicities and social groups in Trinidad and Tobago to improve their lives. This was accomplished through advocacy campaigns, education programmes and support systems, guided by their core values of equitable access to economic resources, non-violence, and mutual support. Workingwomen is currently registered with the Registrar General’s Office as a Non-Profit Company. Workingwomen and Sexual Harassment As part of its internal education, as well as outreach to other Civil society Organisations, Workingwomen held sensitization workshops in the past on the subject.More recently with the advent of the MeToo Movement and local incidents of Sexual Harassments, in January of 2018 the commemoration of our Anniversary a public awareness programme “Understanding Sexual Harassment” was held. Working Women also runs a Drop-In Centre at their base, No 14 Niles Street Tunapuna which provides counselling, referral and outreach services to help people with their problems.
15
BA N K E M P LOY E ES’ U N I ON V R E P U B LI C BA N K LI M I T E D An auditing assistant (“the worker”) was employed by Republic Bank Limited (RBL) for approximately 25 years and was dismissed by the company in 1994 following an investigation of allegations about his conduct made against him by female employees of the company. M alleged that while in the filing room retrieving files, she was standing on a stool when the worker entered. He asked her if she was okay, then put his arm and around her waist, pulled her across to him, and kissed her on the cheek. His hand then dropped to her bottom. She told him not to do that and then reported the matter to her supervisor. It was not the first time M had such interactions with the worker. Additionally, in investigations of this incident, it came to the company’s attention that there were already allegations against the workers by two other female employees. The Bank Employees Union (BEU) was the recognised majority union for certain categories of workers employed by RBL. The BEU challenged the dismissal of the worker contending that the conduct of the worker did not amount to sexual harassment or alternatively, that the worker’s long and otherwise unblemished period of service rendered the dismissal as an inappropriate sanction. The BEU sought an order for the reinstatement and compensation of the worker.
Additionally, there is a common law obligation on an employer to provide a safe system of working for his employees. In every case of dismissal that comes before the court, it must apply certain principles in assessing the reasonableness of the decision to dismiss. Non-contrition and other circumstances are considered. An order for reinstatement will only be made in exceptional circumstances and only if a strong case is made out. The company in deciding his dismissal the company would have been entitled to consider his conviction that his conduct was innocent, as well as his lack of remorse as indicators that he might repeat the offence. Additionally, his position in the company would have put him in an authoritative relationship with female employees on the staff and may undermine the tranquillity of the workplace. Therefore it was held that the circumstances in which the worker was dismissed were not harsh or oppressive or not in accordance of the principles of good industrial practice.
The issues the court had to decide were whether his conduct could be classified as sexual harassment and if it did, whether the penalty fitted the offence. On the first issue, it was found that in the assessment of whether conduct amounts to sexual harassment, what motivated the perpetrator or the intention that conducted it is irrelevant. What is relevant is whether the conduct is voluntary on the perpetrator’s part, and whether it is uninvited or unwelcome by the victim. On the second issue, it was stated that it was reasonable that an employer, especially a commercial bank would expect a level of behaviour among its staff so that it would inspire confidence in its customers.
16
POEM: “THE FIRST TIME” Now I know,
Be a sport
It could have stopped there.
Harmless hug Eyes that burned into my flesh.
The moment it began The first time, the one time It could have stopped right there.
I need this job.
Just that one time, the first time.
The beginning of the end. Sick days, rest days, truant days
Doubt and blame.
The urge to run just run. Fear and sweat,
Unsure at first if that caress was vile, Maybe not Maybe me Overreaction, uncertainty… Morning mirror mayhem Pants, not too tight, shirt just right. Making sure I'm not to blame... Laughter, shame Told my friend, Friend who laughed, then made me laugh. Felt it melt, Then the note that came again, Pictures drawn with the office pen. Made the melting melt away Another shameful day, That took my smile away. Intimidation, Told my mom, She grinned a bit, Good thing you don't wear short skirts Or makeup and perfume. No response from me Lowered eyes, The need to keep this job. Steadfast strong, move along.
Jokes and gropes More public, loosened ropes. Naked while completely dressed, Dirty, damaged and distressed. Lunch in the car, no bathroom breaks Absent without leave. There must be reprieve. The End The end it came. I was not to blame Found an ear, Walked in off the street Began to speak Certain laughter would make me run and hide Demean, dispute, deride But no There was a law There was much more It could have ended at the start... The very first time The first feeling of distaste... It could have ended there But have no fear my lawyer said. It will end now, you'll get back your life Sexual harassment, she said, is wrong Be prepared, she said, to take that stand .
Hands on me, when no one could see
The law is on your side, she said, And this will end, young man.
Staff retreat, Meet and greet
By: Eva Dawn Sankar
Phone calls, work needs,
17
R E V I E W & C O M M E N TA R Y O N T H E D R A F T M I N I S T R Y O F L A B O U R P O L I C Y O N S EXUA L HA R ASSM E NT I N T H E WOR K P LAC E In June 2018, the Ministry of Labour and Small Enterprise Development of Trinidad and Tobago published a Draft Sexual Harassment in the Workplace National Policy. The draft policy comes after many years of discussion on the topic and shows Trinidad and Tobago’s progress for proper protection against sexual harassment. It is in keeping with the Government of Trinidad and Tobago’s National Strategic Plan-Vision 2030, for the development of the country. Draft means that it represents an intention to someday be fleshed out into a final form. It is therefore, open to scrutiny and comment. It is not law! Employers are obligated to: 1.Develop and provide complaint and grievance procedures to investigate instances of sexual harassment. This procedure should: i.Be informal or formal, as desired by the victim. ii.Be headed by a designated, independent and impartial person who will take allegations seriously and investigate fairly. iii.Take allegations seriously and be committed to providing some sort of recourse. iv.Be confidential and available to all employees. 2.Assist victims through established support services within the workplace. 3.Establish company policies preventing sexual harassments in the workplace. This should include: i.Definition of sexual harassment ii.Disciplinary rules, protective measures and remedial action iii.Complaint procedure and Specialized training iv.Establish a Sexual Harassment Monitoring and Evaluation System within the workplace. The policy reminds employees to: i.Speak up when they are being sexually harassed and inform the perpetrator that their actions are unwelcomed. ii.Insist on their personal space iii.Report all allegations to relevant appropriate authorities Lastly, the policy recommends the Government of Trinidad and Tobago to develop and enact stand-alone sexual harassment in the workplace legislation.
18
From this review, you can see that the policy speaks specifically to sexual harassment in the workplace and appeals to all stakeholders on a national level. However, its limitations are very noticeable: 1.No timeline: The policy outlines no timeline for legislative consideration which enforces the government’s goal of treating with this issue as a priority. With there being no legislation in Trinidad and Tobago, this policy was the best proposal to give a timeline for such legislation. The policy has recommended that there be stand-alone legislation in the likes of Barbados and Belize. This is the ideal for Trinidad and Tobago. However, a mere recommendation of such legislation does not show a sufficient intention towards one. What this policy tells us is what many have been saying for years. We need more than the obvious to solve sexual harassment in the workplace. 2. No ‘backing’ The policy at many times referred to words such as “shall” or “must”. These words mean that it is mandatory, it must be complied with. For instance, all obligations of the employer stated above have this mandatory requirement. But where is the backing for these mandatory written policies? There is no proposal of any implications for any of this. This means that there is no guarantee for employers to take up these obligations. Something more must be done to compel employers to takes these added obligations. This further explains why legislation is needed. 3.Mere words: While the policy is proposal for a foot in the right direction, it does seem like mere words on an academic or research paper. Particularly, with changes in governments every few years, the draft policy was not a great selling point to “assure the population that the protection of employees in the workplace is of paramount importance to the government”. It is hoped that the government of Trinidad and Tobago keeps their promise of keeping sexual harassment in the workplace a priority, within their term, and push for the development of adequate legislation. Something more forward with a timeline, proper ‘backing’ and more action than words is needed. As of now, the draft policy is good but not good enough.
Disclaimer: The views, thoughts and opinions expressed in this commentary are solely those of the authors of this handbook.
19
By: Brandis Jagessar Brandis is a graduate of the University of Trinidad and Tobago’s Art and Design Program. She chose to uniquely represent the diversity of harassers by using different types of pants.
20
F R E Q U E N T LY A S K E D Q U E S T I O N S 1. Does it have to involve sex? No. Words alone are sufficient. Conduct that is sexual in nature but does not even include a sexual action is still sexual harassment. Conduct that is “sexual in nature” would refer to: sexual advances, repeatedly asking for a date, lewd remarks, pornographic or sexual pictures and sexual jokes. Of course, harassment can also include physical contact such as unwanted sexual touching, sexual assault or rape. These are not only instances of sexual harassment but are also crimes. 2. Can I be sexually harassed by someone of the same sex? Yes. Males can sexually harass males, and females can sexually harass females. 3. Is it possible to be sexually harassed by someone other than my superior? Yes. The harasser does not have to be your supervisor for the harassment to be wrong. Employers have a responsibility to provide a workplace free from sexual harassment, whether the harasser is your supervisor, a supervisor in another department, a co-worker, a subordinate, or even a customer or client. It is still sexual harassment. 4. What should I do if I believe I am being sexually harassed at work? Keep a journal of the harassment. Try to include what happened, where, the date, who else was present. Do this soon after the incident if possible and note exactly when you are making the record. The written record can be important evidence for any internal investigations or a legal action.
●Keep copies of any offensive notes, pictures, text messages or any other material related to the harassment.
●Keep copies of your work records, including copies of your performance evaluations and any memoranda or letters documenting the quality of your work. A harasser may try to defend him- or herself by attacking your job performance. ●Network with others. If you can, talk to others at work about what you are experiencing. There may be other people that have been harassed by the same person or are concerned and would be willing to help. ●Tell supportive friends, family members, and colleagues about the harassment. Telling others about the harassment not only can give you much needed support, but it can also be important evidence later.
21
5. What can I expect if I internally report sexual harassment? Internal procedures dier from company to company but once there is a sexual harassment policy in place these are some commonalities. Your employer will have to investigate your claim before taking any action. For this investigation to be worthwhile you will need to reveal details of the harassment (n.b. keeping your journal will be useful here!) You may have to continue working with your harasser during this investigation. The employer should take action if after investigating it is determined that inappropriate behavior did occur. This action may be in the form of oral/written warnings, deferral of a promotion, demotion or reassignment, suspension or discharge. There may also be the option of counselling for the harasser. 6. Can my employer reprimand me for making a complaint about sexual harassment? No. If an employer retaliates against you for bringing harassment to the attention of management then this is a violation of good employment practices. This type of act can be brought under the jurisdiction of the Industrial Court as this is considered to be wrongful dismissal. Definitely consult an attorney if this occurs with you. 7. Outside of my workplace, can I make a complaint? You can make a complaint to the Equal Opportunities Commission (EOC) for redress. The EOC is empowered to receive, investigate and conciliate complaints of discrimination in the workplace which includes sexual harassment on the basis of sex. The service bears no cost and if the conciliation is unsuccessful it can be referred to the Equal Opportunities Tribunal. The Tribunal has all the powers of the High Court where they can award damages, reinstatement and injunctions. For a more informal approach, Working Women for Social Progress located on Niles Street, Tunapuna accepts complaints via their Drop-In Centre. They provide psychological support to specifically women in these instances where the harassed individuals are not ready to take a public step.
22
NOTES
23
WRITTEN, COMPILED & DESIGNED BY: SARA MARTINEZ ANSAR MOHAMMED CASIANA SANKAR RAC HEL WEEKES
C OVER PAGE BY: COREY MARSHALL
This Handbook is not intended to be legal advice. You may seek independent legal advice if you have a legal problem.