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The Caswell Franklyn Column – Sexual Harassment Legislation to Attract Votes NOT to Protect Vulnerable Workers

As far back as October 5, 1995 the Nation newspaper published a letter from me, asking the Government to introduce laws against sexual harassment in the workplace. It therefore came as welcomed news when I heard that debate on the Employment Sexual Harassment (Prevention) Bill had begun in the Senate. I have always had a…

,
Caswell Franklyn, Head of Unity Workers Union

As far back as October 5, 1995 the Nation newspaper published a letter from me, asking the Government to introduce laws against sexual harassment in the workplace. It therefore came as welcomed news when I heard that debate on the Employment Sexual Harassment (Prevention) Bill had begun in the Senate.

I have always had a personal abhorrence to such behaviour since I would not have wanted any of my eight sisters to suffer through that abuse. Also, my devilish good looks made me a magnet for predators, male and female. Mind you, I am particularly proud of myself and can say that I had the strength to rebuff each and every one of the unwanted advances.

The legislation was long in coming but after all this time, I still have a keen interest in the subject, notwithstanding that one of my sisters is of blessed memory and the others are retired or approaching such. For myself, even though I still get the odd glance, I no longer fill the eyes of the sexual harasser. However, my graduation from the pool of potential victims has not diminished my passion to see adequate statutory protection put in place for victims.

Before reading the bill, I was happy because my desire for this type of legislation had finally come to fruition. I thought that the protection that I did not have, would be available to protect my grandchildren. Sadly, after going through the document, I am deflated. The legislation seems to be poorly thought out and appears to be a rush job to fill some kind of quota for elections.

At clause 32, the bill says, “This Act binds the Crown”. Ordinarily, I would have no difficulty with that provision but it forces me to question Government’s commitment to protecting its workers from sexual harassment. Since December 31, 2007 sexual harassment became an offence that merited dismissal, in accordance with paragraphs 22 and 27 of the Code of Conduct and Ethics. To date, Government has not put any procedures in place for its workers in ten years.

On behalf of one of our members, my union made a complaint of sexual harassment against a male officer, who was acting in one of the most senior post in the Public Service. The evidence against him was incontrovertible; he had reduced his lust to no fewer than 20 amorous hand-written notes. As his punishment, he was given a lateral transfer to another ministry. That should give some idea how seriously sexual harassment is viewed at the highest level.

This legislation is yet another example of how this administration staunchly refuses to lead by example. Rather than put regulations in place to mandate a process to guide employers, this bill requires each and every employer in Barbados to publish a policy statement against sexual harassment within the workplaces. According to the wording of the bill, this provision could apply to an employer with only one employee.

Failure to publish the statement within six months of the commencement of the act is a criminal offence and the employer would be liable on summary conviction to a fine of $5,000 or to imprisonment for 12 months or to both. This is certainly one way for Government to collect much needed revenue, without imposing another tax. Since this measure also applies to the Public Service, would we be seeing permanent secretaries and heads of department being hauled of to Dodds Prison, if they fail to meet the deadline.

To my mind, the most troubling aspect of this bill is clause 28. It states:

A person who makes a false complaint of sexual harassment against another person is guilty of an offence and is liable on summary conviction to a fine of $10,000 or to imprisonment for a term of 2 years or to both.

Let’s say that a young lady made a complaint of sexual harassment against her boss, who had actually committed the offence. Nonetheless, she was unable to provide enough evidence to satisfy the tribunal. Would she be liable to pay a fine and or be imprisoned for making a false complaint? I sincerely hope that I have misinterpreted this clause, since it can serve as a major deterrent to persons making sexual harassment complaints.

My advice is that Government should go back to the drawing board and do it right next time.

26 responses to “The Caswell Franklyn Column – Sexual Harassment Legislation to Attract Votes NOT to Protect Vulnerable Workers”

  1. Fractured BLP Avatar
    Fractured BLP

    I am deeply saddened that MAM found it impossible to contribute to debate in Parliament on this Act.

    Indeed , unless I have missed it , I am yet to hear any policy statement from MAM addressing sexual harassment against women ( inside or outside the workplace)

    This , I deemed to very troubling, especially from a female leader like MAM

    I wonder why is this SO ……..?????

  2. Tony Trotman Avatar
    Tony Trotman

    The Employment Sexual Harassment (Prevention) Bill has good intentions but many shortcomings. For example –

    The Bill does not contain a definition of sexual harassment. Clause 3 of the Bill only contains examples of harassment of a sexual nature. Therefore, it is unclear whether the Bill covers harassment that is based or related to the sex of the recipient, e.g. a male employee who pesters a female employee to go out on a date with him.
    Clause 5 of the Bill only applies to persons who are already employed by the employer (e.g. an employee who is applying for a promotion). Therefore, it is unlawful for an employer to suggest that the success of an internal job applicant (JA) is subject to performing a sexual favour. Ironically, it would not be unlawful for an employer to suggest that the success of an unemployed or external JA is subject to performing a sexual favour.
    Clause 4 of the Bill states that a sexual harassment policy (SHP) must be “presented to each employee or each person who is employed by (the employer)”. An employer cannot comply with Clause 4 of the Bill – by informing its employees in writing about its SHP – where the employees have reasonable access to the SHP (e.g. on the employer’s intranet). This is an unnecessary administrative burden on employers.

  3. Well Well & Consequences Observing Blogger. Avatar
    Well Well & Consequences Observing Blogger.

    I suspected it is an election gimmick as well, it was too hastily put together, spoken about for many, many years and should have been done many yesrs ago, they are too out if time.

    Eight sisters, if you were the only boy I imagine those girls spoilt you rotten. ..Caswell..

    Sounds more like punishment for victims of sexual predators if they dare to complain….everything is always done assbackwards by both governments, they know sexual harassment is a major problem on the island and has been for decades they perpetrate it themselves so they would know, but are finding ways to make it difficult for victims to come forward so they can continue the practice of sexual harasdment in the work place and rapes of women, children and men in peace……

    ……..true house negros and wild animals keeping their rape society intact.

  4. TheGazer Avatar
    TheGazer

    Could it be that they are all aware that his is a problem, but our social structure and values make it difficult for our leaders to properly classify and combat this problem.

    If you look in the mirror and the perpetrator looks and behaves like you do, then it would be difficult to ‘treat the problem’

  5. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    Therefore, it is unclear whether the Bill covers harassment that is based or related to the sex of the recipient, e.g. a male employee who pesters a female employee to go out on a date with him.

    @Mr Trotman, this is the very definition of sexual harassment! “Pesters” is the operative word here…will probably be clarified in an anti-discrimination statute.

  6. Hants Avatar
    Hants

    I hope women will use the best weapon to deal with “pesters”. Cell phone voice or video recording.

  7. William Skinner Avatar
    William Skinner

    What shocked me was a call by a woman
    to Brasstacks who said that her boss once
    touched her nipples and she had a talk
    with him and that was that. She even said
    that some men would test women to see
    how far they could go. She implied that
    men have problems with their partners may
    seek sex elsewhere . I still shocked that in
    2017 any woman would seek to defend
    sexual harassment.
    I am therefore not surprised that there are
    those on BU trying to politicized the Bill.
    This legislation is long overdue but we are
    really a strange lot.

  8. de pedantic Dribbler Avatar
    de pedantic Dribbler

    Mr Trotman and all, why is there any perspective that employers have a difficult burden to advise ALL employees of their sexual harassment policies.

    This seems to fall into a political rabbit hole of presuming that all regulations are a hindrance to corporate operations, when in fact most well organized corporations already have very detailed employment contracts which cover these matters and more.

    It seems to me that the statement “An employer CANNOT (my emphasis) comply with Clause 4 of the Bill – by informing its employees in writing about its SHP – where the employees have reasonable access to the SHP (e.g. on the employer’s intranet)….” is a typo.

    Surely modern internet technology would actually make it much easier for every employee at a firm of five employees or 5000 to disseminate their employment regulations.

    What makes this important policy an “unnecessary administrative burden on employers”… is it a burden for Goddards for example to say to every one of its 6,000 plus employee across the region that no acts of racial or gender discrimination, again as an example, will be acceptable.

    Simply stated employment brings with it basic ‘dos and don’ts’ stipulated on hire…that issues of sexual harassment were not always one of those stipulations is unconscionable and CANNOT be seen as a burden; rather it’s a long overdue fundamental to operational excellence.

  9. Tony Trotman Avatar
    Tony Trotman

    I hope you are right, Mr Cumberbatch. However, I would prefer if the Bill had a definition of sexual harassment along the following lines –

    “Sexual harassment is

    (a) unwanted conduct related to the sex of a person or (b) any form of unwanted verbal, nonverbal or physical conduct of a sexual nature

    that violates the dignity of a person or creates an intimidating, hostile, degrading, humiliating or offensive environment.”

  10. Hants Avatar
    Hants

    @de pedantic Dribbler wrote ” most well organized corporations already have very detailed employment contracts which cover these matters and more.”

    You should have stated ” in Canada”.

  11. Jeff Cumberbatch Avatar
    Jeff Cumberbatch

    *(4) For the purpose of this section, a person shall be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favors, to the other person, or engages in other unwelcome conduct of a sexual nature to the other person, and-

    (a) the other person suffers any form of disadvantage in connection with that other person’s employment or work or possible employment or possible work; or

    (b) the unwelcome request for sexual favors has the effect of interfering unreasonably with the other person’s work performance or when it creates an intimidating, hostile or offensive working environment.*

    @ Mr Trotman, this is the Belizean formulation

  12. Hants Avatar
    Hants

    Canada

    “harassment is defined as:

    improper conduct by an individual, that is directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction).

    More specifically, harassment is normally a series of incidents but can be one severe incident which has a lasting impact on the individual.

    Essentially, the definition of harassment means that more than one act or event is needed in order to constitute harassment and that taken individually, this act or event need not constitute harassment. It is the repetition that generates the harassment. In other words, harassment consists of repeated and persistent behaviours towards an individual to torment, undermine, frustrate or provoke a reaction from that person. It is a behaviour that with persistence, pressures, frightens, intimidates or incapacitates another person. Each behaviour viewed individually may seem inoffensive; it is the synergy and repetitive characteristic of the behaviours that produce harmful effects.

    However, one single incident can constitute harassment when it is demonstrated that it is severe and has a significant and lasting impact on the

  13. Tony Trotman Avatar
    Tony Trotman

    de pedantic Dribbler

    The purpose of Clause 4 of the Bill is for an employer to inform its employees about the sexual harassment policy (SHP). Clause 4 of the Bill (as it stands) does not permit an employer to use one of the easiest ways to do so, e.g. by providing a note to its employees about its SHP – where the employees have reasonable access to the SHP (e.g. on the employer’s intranet). Please note that the section 14 of Employment Rights Act 2012 permits an employer to do so in relation to disciplinary procedures.

  14. Tony Trotman Avatar
    Tony Trotman

    Thanks, Mr Cumberbatch. The definition of sexual harassment in my previous message was based on European Union law.

  15. Caswell Franklyn Avatar
    Caswell Franklyn

    William

    You are really making me sick now. If this is the best Government can do after all these years considering this piece of legislation, they have no right to be in power.

  16. TheGazer Avatar
    TheGazer

    side note…
    In some companies there is mandatory training about sexual harassment which has to be taken every one to three years…
    Management must take it also….
    Reinventing the wheel can be difficult.

  17. William Skinner Avatar
    William Skinner

    This is no real problem for any modern company with a well run Human Relations and Legal Departments.
    @ Caswell
    “William
    You are really making me sick now.”

    If you were to occasionally accept the fact that seldom do we find legislation that is one hundred percent fool proof or as we say “has in everything” you may actually start to feel better. I do not know of any piece of legislation that has met your high standards. As pointed out by a recent caller to brasstacks, you may find that some of this Bill seems to be very close to what is existing legislation or law.
    We grew up watching men beat women and in many cases killing them because of non -existent or very poor laws and legislation. We are so stuck in our ways that anything with we feel threaten “we culture” should be avoided.
    I will never carry water for the BLPDLP but only the most partisan would deny that the current administration has at least attempted to deal with: children’s rights, domestic abuse , child abuse and other issues that we have traditionally ignored.
    Let us hope that whatever happens in 2018, the new administration builds and improves where and when necessary.

  18. David Avatar
    David

    Caswell did you read this post Senator John Watson posted to his Facebook timeline? On behalf of the B household thanks for keeping an eagle eye on legislation enacted in this country. Some would expect us to accept without question the enactment/proclamation of Bills because the intent is honourable, BS! We have the recent history of the ERT and Antiquities Bills that were seriously flawed in how they were drafted.

    I did not hear much of the House today unfortunately . But the debate, The Sexual Harassment in the Workplace Bill, in the Senate was good . Sen. Dr. Suckoo did a great job in introducing the bill. She was thorough, very informative, and witty , she put Singing Sandra in our record books

    The contribution from Senator Abrahams was also great a little politics aside and the gem came from Senator Irene Sandiford-Garner

    But , to me, the highlight was when the Bill was in committee. It was really the legislature at its best . It was a whole Chamber looking to conclude the best Bill possible. Sen Suckoo managed the process masterly Sen Abrahams interventions were technical and unbiased. Sen Sir Roy as Chairman of Committee was in full control

    I can safely say that the whole debate and process was my best experience in the Senate to date . The amendments were made . The people’s business was well done”

  19. Well Well & Consequences Observing Blogger. Avatar
    Well Well & Consequences Observing Blogger.

    “I will never carry water for the BLPDLP but only the most partisan would deny that the current administration has at least attempted to deal with: children’s rights, domestic abuse , child abuse and other issues that we have traditionally ignored.”

    But always in halfassed measures, it’s better they step aside and allow an intelligent government to carry such lack of legislations that are destructive to the society to more successfully updated and enforceable levels….their actions are not genuine and seem to be trying to appease the culprits of these crimes.

  20. Kevin Avatar
    Kevin

    So we gone from the 50th Independence mega-celebrations a gimmick to attract votes and elections will be called soon after, onto Carifesta a gimmick to attract votes and elections will be called soon after, now the sexual harassment bill a gimmick to attract votes and elections willed be called soon after. Coming up we are already hearing the renaming of Westbury New Road after Rhianna, a gimmick to attract votes and elections will be called soon after. Since the time is drawing near to ring the bell, anything the government do or dont do will only be because of self-interest? The country still has to be governed until elections come. @Fractured BLP, yes it was surprising the lack of contribution by MAM to this sexual harassment debate but I’m not surprised……..@William Skinner, yes women can be their own enemy, was a bit taken back as well by the female Brasstacks caller who said her boss touched her breast but all he and men needed was talking too…..

  21. Tony Trotman Avatar
    Tony Trotman

    The public should be invited to submit written comments on the Bill by a certain date (e.g. within three months). Then, the Government should publish its response to those comments – i.e. explaining why it will or will not amend the Bill after considering the public’s main comments or concerns about the Bill – before the Bill goes to the Barbados Parliament.

    If the Government goes ahead with the Bill (as it stands) – it should not complain in the future – that employers are not complying with the “spirit” of the legislation – if they can do so because the legislation is unclear or has glaring loopholes. See https://www.barbadostoday.bb/2017/06/12/businesses-violating-the-spirit-of-the-law-byer-suckoo/

  22. David Avatar
    David

    The Employment Rights Bill was widely circulated and yet it had to be amended soon after proclamation.

  23. Tony Trotman Avatar
    Tony Trotman

    A “widely circulated” Bill is not the same thing as having a proper public consultation process about the Bill.

  24. Caswell Franklyn Avatar
    Caswell Franklyn

    David

    You are mistaken; the Employment Rights Act was amended for the first and only time earlier this year. Those amendments were sneaked in as a schedule to the Holidays with Pay Act.

    Sent from my iPad

  25. Tony Trotman Avatar
    Tony Trotman

    The Barbados Advocate has published an editorial (dated October 22, 2017) about the Employment Sexual Harassment (Prevention) Bill. The editorial can be viewed at: https://www.barbadosadvocate.com/columns/editorial-112

  26. The Caswell Franklyn Column – Sexual Harassment Law is Dangerously Flawed | Barbados Underground

    […] my last column on the Employment Sexual Harassment (Prevention) Bill – The Caswell Franklyn Column – Sexual Harassment Legislation to Attract Votes NOT to Protect Vulner…, I endorsed the need for such legislation but was critical of the end result. However, after taking […]

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