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Sexual harassment bill tabled in House

Published:Wednesday | December 9, 2015 | 12:00 AMDaraine Luton

Prime Minister Portia Simpson Miller yesterday tabled the sexual harassment bill in the House of Representatives as the Government seeks to outlaw sexual intimidation, coercion and pestering in the workplace, institutions and in landlord-tenant relationships.

The proposed legislation frowns upon unwelcome physical contact of a sexual nature and provides a framework for offenders to pay civil damages in court to persons whose feelings have been injured or who have suffered humiliation as a result of sexual harassment.

Sexual advances such as a demand or request for sex or favours of a sexual nature are to be prohibited within the workplace or institutions if the bill becomes law.

David Wan, president of the Jamaica Employers' Federation (JEF), said his association welcomed the bill, but noted that it might have potential pitfalls.

"We fully support it. We endorse the concept of the bill, but what we don't want is something that is overly onerous for us to comply with out of proportion with the danger that is there," Wan told The Gleaner yesterday.

Sexual harassment is defined in the bill as making of any sexual advance towards a person, by another person, which is reasonably regarded as unwelcome, offensive or humiliating by the person towards whom the advancement is made.

 

NO TO SEXUAL INNUENDOES

 

The making of sexually coloured remarks or sexual advances, suggestions or innuendoes as well as the showing of pornography or display of images or objects of a sexual nature as well as any other physical, gestural, verbal, non-verbal or visual conduct of a sexual nature will also be outlawed.

The bill places an obligation on employers to "make every reasonable effort to ensure that ... workers are not sexually harassed in the course of their employment".

Employers or persons in charge of an institution will be required to issue a policy statement concerning the prevention of sexual harassment.

"We support it. It brings its own set of problems ... . You may have people who may make reports that are on the margin and create issues in the workplace ... . You are going to have some people who will try to leverage it to their advantage," he said.

The JEF president, however, said he believed the issue of sexual harassment was real in the Jamaican workplace.

"My impression is that a number of these cases don't get reported into a central registry for you to get an understanding of how prevalent it is. But I have heard anecdotes about it, which convince me that it exists," Wan said.

The bill proposes that a Sexual Harassment Division be created at the Industrial Disputes Tribunal to hear cases of harassment brought by an employer or a worker.

A case of sexual harassment may also be brought in the civil division of the Resident Magistrate's Court.

Claims in respect of sexual harassment at institutions or within the landlord and tenant relationship are to be brought in the civil division of the Resident Magistrate's Court.

In addition to stating that an employer or supervisor or a co-worker should not sexually harass a worker, the bill states that "a prospective employer shall not make it appear to a person seeking employment that (a) the offer of employment to that person or (b) the terms on which employment is offered, are contingent on that person's acceptance or submission to sexual advances from the prospective employer".

 

NO VICTIMISATION

 

It states, too, that an employer shall not take any action that adversely affects the opportunities, terms and working conditions of a worker who has instituted proceedings by way of a complaint or claim, or who has given testimony or otherwise participated in any sexual-harassment investigation.

A person who is aggrieved by the failure of an employer to act may make a complaint to the tribunal.

In determining whether any act or conduct constitutes sexual harassment, the bill states that it should be considered whether the act was a significant single instance sufficiently serious to be so determined, and the determination shall be based on the findings in the particular case.

The tribunal, after an investigation, can direct that the offending party pay damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent. In making an award, the tribunal may take into consideration injury to the complainant's feelings or humiliation suffered by the complainant.

Where the tribunal makes an award by way of a direction for the payment of compensation to the complainant, the sum may be recovered in a Resident Magistrate's Court as a civil debt.

Failure to pay can result in a fine of up to $500,000 or one month in jail.

daraine.luton@gleanerjm.com