Tracy Robinson is a senior lecturer in the Faculty of Law, University of the West Indies.
This article is part of a knowledge-sharing initiative supported by the United Nations Development Fund for Women (UNIFEM).
By Tracy Robinson
Courts and legislatures all over the world, including the Industrial Court of Trinidad and Tobago, have recognized that sexual harassment compromises safety and equity in the workplace. Sexual harassment in the workplace also raises concerns about economic efficiency. Sexual harassment increases sickness, decreases productivity and increases job turnover for employers and costs taxpayers in national insurance disbursements for sick leave and unemployment.
Sexual harassment is a form of gender-based violence and a violation of the right to equality, life, liberty and security. In ratifying the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women Caribbean countries have made commitments to take legal and other measures to ensure that there is effective protection against sexual harassment. Every Caribbean country needs comprehensive legislation dealing with sexual harassment and other forms of discrimination.
Naming and clarifying
the prohibited conduct
Sexual harassment legislation will provide us with a definition of the prohibited conduct and give it a name with legal significance, immediately sending a signal that this is unacceptable conduct that we all have an interest in eradicating.
Many of us remember when domestic violence was dismissed as ‘cultural’, ‘man and woman business’, even though most of the violations were already in theory crimes. The passage of legislation naming and defining domestic violence in law has played a key role in altering the way we now understand and address domestic violence. Like the domestic violence law, the sexual harassment legislation will introduce crucial new remedies, and send a message about the seriousness of the violation.
A definition also sets limits. It tells us what conduct is being regulated and by implication what is not. It provides guidance to men and women as to what is inappropriate conduct at work and, at the same time, it is a positive statement of our mutual commitment to work environments in which employees enjoy camaraderie, but are safe and productive. Some hard cases will arise about whether certain conduct amounts to sexual harassment. This is not sufficient reason not to enact legislation because our legal system has considerable experience in resolving difficult cases.
Sexual harassment legislation provides a mechanism for preventing harassment. Legislation will require the employer to keep the workplace free from harassment, to clearly express a policy against it in the workplace and to bring the policy to the attention of all workers. The existence of a sexual harassment policy that is well known to workers, especially one that is the product of consultation with workers and accompanied by training, can play a crucial role in deterring sexual harassment in the workplace.
Even where sexual harassment does occur, legislation can contribute to an early response. The sexual harassment policy mandated by the legislation will articulate the employer’s legal obligation to take immediate and appropriate action to address the sexual harassment and it will outline a complaints procedure. Supervisors will know their responsibilities in responding to the complaints and, in ideal circumstances, employees will develop confidence in the complaints procedure and hopefully use it at the early stages of harassing conduct, before it escalates.
By insisting on a policy, sexual harassment legislation strengthens the internal resolution of sexual harassment cases within the workplace and contributes to the fair treatment of the harassed and the harassers in the workplace. Employees will know the seriousness of the prohibited behaviour and its disciplinary consequences and will have a greater sense of being treated fairly if the actions of the employer are consistent with a justifiable and well articulated policy.
Well over a decade ago, Caricom offered its member states model legislation on sexual harassment. Only a handful of Caricom states have heeded the call. Let us all press for comprehensive legislation across the entire region that deals with sexual harassment that is premised on the dignity of all workers, and their entitlement to a safe working environment, and the right of all, especially women, to live lives free of violence.