How your human rights can be violated in the workplace

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  • Human Rights Commission executive officer Lisa Lister

    Human Rights Commission executive officer Lisa Lister


Workplace Harassment Rises
HRC Complaints and/or Queries

2009: 210
2010: 238
2011 (to date) 215
Source: HRC

The movie “Horrible Bosses” is meant to be a dark comedy, but many of us can identify with the characters who conspire to bump off their employers.

Like the characters, we too may have experienced bullying, discrimination and harassment in the workplace.

But in this economy who wants to speak up and risk losing their job.

And in any event, who do we complain to?

There are clear laws in Bermuda against sexual harassment and discrimination based on: race, ethnicity, place of origin, colour, religion, beliefs, sex, disability, marital status, political opinions, family status, even, in certain cases, criminal record.

Bullying is a grey area though, and in order to be against the law the harassment has to be on one of the grounds protected in the Human Rights Act and be “persistent comment or conduct” that is vexatious.

However, a teacher recently took on Government over alleged bullying by a principal where she claimed she was “victimised, harassed, intimidated, mistreated, targeted and abused”. Unhappy with the arbitrator’s decision which upheld some claims and dismissed others - Claudia DeSilva plans to appeal.

Despite the passage of new laws and public awareness campaigns - the Bermuda Human Rights Commission said the number of complaints and queries it gets is rising.

In 2009, it dealt with 210 complaints and queries, 238 last year, and already this year so far, there have been 215 complaints/queries.

Of particular concern to the HRC is the fact sexual harassment is still rife in the workplace.

“What still surprises me the is the level and frequency of sexual harassment complaints given what I believe people should know about the law on this,” said HRC executive officer Lisa Lister.

She said the HRC also continues to get racial discrimination complaints.

Ms Lister said the HCR gets at least half a dozen new complaints or queries a week and she has noted they are of a “greater intensity” than in the past.

“People in this position may be feeling scared, and alone, and this is being compounded by the recession, and them needing their job,” Ms Lister added.

However, she said anyone who feels they are a victim of harassment, or feels discomfort or unease about behaviours in the workplace, should at least contact the HRC for advice on what to do.

She said employees should also talk to their HR department, where they feel they can, as a first step.

In any event, she said employers should all have policies that set out appropriate conduct in the workplace and it is the employer’s responsibility to ensure their workplace is free of sexual or other harassment.

Ms Lister pointed out the Human Rights Act contains a confidentiality clause that protects anyone who files a complaint with the HRC from being retaliated against or losing their job as a result.

The HRC has three investigating officers who treat all cases completely confidentially and all staff at the HRC respect the confidentiality of cases.

Sexual Harassment

The HRC said sexual harassment may be defined as “sexual attention which is unwarranted, unwelcome and unsolicited”.

It can be: touching, brushing against, patting, verbal sexual remarks, leering or suggestive looks, subtle sexual hints, repeated pressure for a relationship, unwelcome jokes, innuendos or taunting about a person’s body, showing of porn or derogatory pictures or images.

Ms Lister noted it is against the law in Bermuda for anyone to be subjected to sexual harassment by an employer or fellow employee.

HRC education officer Sara Clifford gave us two examples of cases of sexual harassment that’s been seen locally:

1. An employee experiences inappropriate sexual comments such as, “You’re looking too fine, sexy!” or inappropriate touching by a supervisor. Although these behaviours may be common practice in this work environment, such behaviour could be in violation of Section 9 of the Human Rights Act.

2. An employee learns that their employer has employed the employee’s ex. The ex begins to send the employee sexually explicit messages via office e-mail, written notes at work and voice messages. The employee complains to their boss and the employer does not take action that is reasonable to ensure that sexual harassment does not occur in the workplace, this could be a violation of Section 9 of the Human Rights Act.

Bullying

The US Workplace Bullying Institute defines a bully boss as someone who repeatedly inflicts on others “verbal abuse, threatening conduct, intimidation or humiliation” as well as “sabotage that prevents work from getting done”.

The WBI says as much as 50 percent of the US workforce has reported either having been bullied by someone at work or having witnessed someone else being mistreated.

Another recent poll, by job site CareerBuilders, found that 27 percent of US employees have experienced some form of bullying at work. And most “never confronted or reported” the bully.

The WBI says one reason they get away with it is that, in most states, like Bermuda, abusing employees is not illegal unless the mistreatment is demonstrably based on age, sex, race, or religion, so it flies under the radar of corporate human resources and legal departments.

That is slowly changing in the US: 21 states now have passed anti-workplace-bullying laws, and 11 more are considering following suit.

Bullying at work is similar to harassment, which is where someone’s behaviour is offensive.

However, there is little recourse for victims of bullying in the workplace.

One way to deal with employer abuse, is if you are forced to resign due to bullying you may be able to make a “constructive dismissal” claim.

That is where you can terminate your own contract of employment without notice if the employer’s conduct makes it unreasonable to expect you to continue in the job. And if there is a finding of constructive dismissal then it is deemed unfair dismissal under the Act.

However, the bully wins here, since the employee ends up leaving.

Still, Ms Lister urged anyone who feels they are victims of bullying to contact them at least for advice on what to do and where to go.

How to Make a Complaint to the Human Rights Commission

Complaints can be made personally at the 3rd Floor of the Mechanics Building, 11 Church Street or by calling 295-5859.

Once an officer has interviewed you, the HRC will advise whether your complaint appears genuine and is covered by the Act. Even if it is not covered, they are happy to advise you on what to do.

Once a formal complaint has been written the person/s against whom the complaint is made are notified of the HRC’s intention to investigate.

Mediation will be offered to both parties and the HRC will cover the cost.

If the complaint can’t be settled, the complaint will be referred to the Ministry of Social Rehabilitation and it may be sent to a Board of Inquiry.

The HRC may also refer the case to the Director of Public Prosecutions and the courts.

Tomorrow: How to handle holes in your resume from being laid off, and where to look for a job.

Other resources for employees:

www.gov.bm

Labour Relations 297-7650/Workplace complaints of any nature may be made here

Immigration Hotline 296-5202 or e-mail adaniels[AT]gov.bm or cperinchief[AT]gov.bm

Free 15-minutes of legal advice: The Center on Angle Street, every Thursday from 5.30pm to 7.30 on a first come basis.

Legal Aid, 129 Front Street, by appointment

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Published Oct 13, 2011 at 7:23 am (Updated Oct 13, 2011 at 7:20 am)

How your human rights can be violated in the workplace

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