The Caswell Franklyn Column – Sexual Harassment Law is Dangerously Flawed
In my last column on the Employment Sexual Harassment (Prevention) Bill – The Caswell Franklyn Column – Sexual Harassment Legislation to Attract Votes NOT to Protect Vulnerable Workers, I endorsed the need for such legislation but was critical of the end result. However, after taking note of all the positive reviews, I must admit that I was having second thoughts, so much so that I went and re-read the document. I am now convinced that those who gave the bill a passing grade and I must have read different bills.
According to the Barbados Today of October 26, 2017 the National Union of Public Workers (NUPW) was one of the organizations that was supportive of the legislation. Its general secretary declared that after 20 odd years of lobbying government, public servants “can breathe a sigh of relief that there is some level of protection and assurance that the public service would be free from the scourge of uncircumcised Philistines pouncing on employees….”
I was confounded by that position since, in the dying days of the Arthur Administration, Government introduced legislation that made sexual harassment an offence punishable by dismissal. The Second Schedule to the Public Service Act, The Code of Conduct and Ethics, at paragraph 22.(1) states:
“Engaging in any activity that amounts to sexual harassment is a breach of this Code which renders an officer liable to dismissal.”
I will leave readers to draw their own conclusions in respect of NUPW thanking the Minister of Labour for putting in place a law for public officers that was already in force for 10 years.
It is my view that the pressing need to have legislation against sexual harassment of workers, in the private sector and statutory boards, has clouded the minds of proponents who were lobbying for years. It would seem that they are saying bad legislation is better than no legislation. I maintain that such legislation is highly desirable but this act merely gives the illusion of protection. It is dangerously flawed and can end up hurting those that it is intended to protect.
I have already pointed out that a victim, who was unable to prove his/her case, could end up paying a fine of $10,000 plus spending two years in jail for making a false complaint. In addition, section 6 has created a situation where employees, who had been overlooked for promotion, could complain and then find themselves facing a law suit for defamation of character. Section 6.(1) states:
6.(1) Where an employer grants employment opportunities or benefits as a result of
(a) an employee’s agreement to grant sexual favours to the employer; or
(b) an employee’s agreement to grant sexual favours to a client or an employee’s supervisor,
an aggrieved employee who was denied an employment opportunity or benefit may lodge a complaint with the Chief Labour Officer and the Chief Labour Officer may take such action as he thinks necessary under section 12 to resolve the matter.
When I was a young man sexual relations between two adults were generally secret. Does it still operate like that and if so, how would a third party know that an employer and employee made a quid pro quo arrangement that would disadvantage the third party. Nowadays, are such arrangements sent around by circular or posted on notice boards? What is the standard of proof the act would require, in the event that both parties deny that there was any agreement to grant sexual favours or any sexual contact at all?
There is one aspect that the drafters of this act need to explain. Section 4 requires every employer in Barbados to have a clear written policy statement against sexual harassment. Failing to do so, the employer is liable on summary conviction to a fine of $5,000 or to imprisonment for a term of 12 months or to both. Mind you, no one has articulated the practical benefits of having such a policy.
As far as I can see the major beneficiaries of the act in its current form would be underemployed industrial relations consultants, who would be engaged to draft these mandatory but unnecessary policy statements.