Mon | Sep 25, 2017

Employers will pay for sexual harassment in the workplace

Published:Monday | December 14, 2015 | 12:42 AM

THE SEXUAL Harassment Bill was tabled in the House of Representatives on December 8, 2015. Its primary objective is to provide a framework for addressing the issues of sexual harassment in Jamaica by identifying what constitutes sexual harassment, the persons by and against whom it may be committed, and the actions that may be taken against the offenders.

Sexual harassment is defined in the bill as “any sexual advance towards a person, by another person, which is reasonably regarded as unwelcome, offensive or humiliating towards whom the advance has been made ... .”

It places the responsibility on employers to make every reasonable effort to ensure that workers are not sexually harassed in the course of their employment, regardless of the form of work in which the worker is engaged. It obliges an employer to establish a written workplace policy to safeguard against sexual harassment, and employers may face the civil courts or a special division of the Industrial Disputes Tribunal to answer claims for compensation or complaints about sexual harassment.

Important, the bill seeks to protect an employee who makes a complaint about sexual harassment, makes a claim in court or participates as a witness or otherwise in proceedings under the legislation against discrimination.

It provides that no action can be taken against that employee by his employer and no steps can be taken that would adversely affect his terms or conditions of employment while the determination of the complaint is pending.

All persons who are likely to be affected by this legislation should review it carefully and make representations to ensure that it achieves the desired effect without creating a hostile work environment.

LONG AWAITED

With that said, Jamaica’s legislative efforts in this area have been long awaited. Other countries in the world are ahead. Some victims of sexual harassment have received substantial awards for damages as a result of an offender’s actions. Some of those examples are set out below:

- In the 2013 case of Malcolm v Dundee City Council [2012] CSIH 13, a former employee of the Council was awarded £100,000 for injury to her feelings, psychiatric injury and loss of earnings. She alleged that, in 2001, two male employees who knew that she was a devout Christian, repeatedly behaved in an obscene manner towards her. On one occasion, they doodled penises on drawings she had done. The judge found that the Council had not taken satisfactory action against the two employees who harassed Malcolm for seven or eight months.

-The Australian case of Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 was seen as a landmark decision in which the Full Court increased a previous award of $18,000 for damages for sexual harassment by a former co-worker to $130,000. In that judgment, sexual harassment was compared to bullying for the similarity in the heads of compensable damages, which include psychological injuries and distress, reputational and economic losses.

- In Weeks v Baker & McKenzie (1998), the Court of Appeal, First District, Division 1, California upheld a former legal secretary’s award of US$7.1 million against a very large Chicago-based law firm. The firm was found to have ignored sexual harassment complaints against Martin Greenstein, a former partner. Among the reported incidents, Greenstein allegedly grabbed Weeks’ breast, while pouring M&M candies down the front of her blouse. Evidence was also given by six women who testified that they were sexually harassed by Greenstein while they were employed to the firm.

VICARIOUS LIABILITY

In all likelihood, the new law will impose an obligation on employers to implement and periodically update harassment policies and training procedures in keeping with its provisions. For that reason, while the quantum of damages awarded to aggrieved employees will be difficult to predict, employers in Jamaica will be exposed to vicarious liability if they fail to take appropriate steps to prevent and/or satisfactorily respond to complaints about sexual harassment in the workplace.

Although sexual harassment is acknowledged to be a problem in Jamaica, it is incapable of precise definition and very difficult to prove. It is, therefore, hoped that the implementation of the legislation will be coupled with appropriate public education and sensitisation so that both potential victims and offenders will be better able to identify, prevent and take appropriate action in response to incidents of sexual harassment.

- Sherry-Ann McGregor is partner and mediator in the firm of Nunes, Scholefield, DeLeon &Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.