I decided to consider the Prevention of Discrimination Act, Chapter 99:09 (No. 26 of 1997) separately because it appears to me that it provides enormous opportunities for us to deal with one of our most persistent problems: discrimination in employment in both the public and private sectors. Furthermore, the present discourse was raised in the context of the Marriott labour dispute and this Act suggests that a contract which seeks to exclude Guyanese labour is not only illegal but provides a concrete demonstration of how far the current regime has drifted away from the spirit of Cheddi Jagan, in whose time the above legislation was passed.
Generally, the Prevention of Discrimination Act provides for the elimination of discrimination in employment, training, recruitment, and membership of professional bodies and also requires equal pay for work of equal value.
Part III of the Act states that it shall be unlawful for any person who is an employer or acting on behalf of an employer in relation to recruitment for purposes of training, apprenticeship or employment to discriminate against a person on the following grounds: race; sex; religion; colour; ethnic origin; indigenous or national extraction; social origin; economic status; political opinion; disability; family responsibilities; pregnancy; marital status; age (except for purpose of retirement and restrictions on employment of minors), and any characteristic which appertains generally or is generally imputed to any of the groups just stated. Any act, omission or any practice or policy that directly or indirectly results in discrimination against a person on any of the above grounds is an act of discrimination regardless of whether or not discrimination was intended.
The Act also speaks to sexual harassment and defines it as the unwanted conduct of a sexual nature in the workplace or in connection with the performance of work which is threatened or imposed as a condition of employment on an employee or which creates a hostile working environment for the employee.
The Act was intended to be comprehensive and thus captures discrimination in professional partnerships, trade unions and employer’s organisations, educational authorities, vocational training bodies, employment agencies. It also seeks to prevent persons from being threatened or provided with incentives to act in contravention of its provisions.
A person alleging that her/his rights have been violated must make a prima facie case, whereupon the burden of proof shifts to the respondent to disprove the allegations. Apart from any fines for contravention of the Act, an aggrieved party may also seek damages in the court. The minister is required to make regulations to give effect to the provisions of the Act.
Of course, the legislation is only a starting place; if it is to be meaningfully implemented it needs to be placed in a more comprehensive framework, which should include statutory rules and regulations and codes of conduct that the defined entities must follow in their recruitment, promotion and training processes, and a relatively simple process for dispute settlement. In my view this is where the current law is deficient, which a couple of examples from the system in the United Kingdom should demonstrate.
Where the filling of vacancies is concerned, a UK employer does not have to advertise. However, if s/he does not or advertises in a way that fails to reach people of a particular type, (race for example), this might result in indirect discrimination and would require the employer to objectively justify his/her approach in any claim of discrimination. The code gives the following example: “A large employer recruits workers to driving jobs through word of mouth. This results in everyone who has a driving job being a member of the same few families or a friend of these families. All the family members and their friends are white, despite the workplace being in an area of high ethnic minority population. Unless the employer can objectively justify the way drivers are recruited, this is likely to be indirect discrimination because of race.”
Our Prevention of Discrimination Act includes discrimination against persons with disabilities and in the UK, unless there are specific job-related reasons for doing so, when advertising a job, the employer must not even imply that a job is unsuitable for disabled people. For example: “When a school is advertising for a teacher to work in a building on two floors which does not have a lift, they must not state that because of this the job would not be suitable ‘for a disabled person’”. Indeed, the employer can use an advertisement to positively discriminate and encourage applications from people of a particular type who are underrepresented in his/her establishment.
On the question of working hours, if a condition prevents more women than men from applying for a job in the UK situation, this may be unlawful discrimination and may result in an employer having to set flexible working hours for women. Accordingly: “A woman is unable to apply for a job for which she is well-qualified because the employer requires all staff to work a rotating shift pattern. The woman is unable to work during all the shift patterns because she needs to look after her 80-year-old mother at particular times of the day. No allowances are made because of this need. Such a requirement would put the woman and other women at a disadvantage because women are more likely than men to need to combine paid work with caring responsibilities. The employer will have indirectly discriminated against the woman because of her sex unless the requirement can be objectively justified.”
The above-mentioned examples illustrate the impact these kinds of rules have where they are relatively properly embedded. The government may well have had its own reasons for not proceeding further with our legislation, but what has been quite surprising is that given the perennial quarrel about employment discrimination in the public and private sectors, neither civil society nor the opposition has historically attempted to force the issue. But the law is there and it is not too late to utilise it to mitigate discrimination in employment in all sectors of our society.
henryjeffrey@yahoo.com
