No need for new sexual harassment legislation – it is already in place
Recently, it was suggested by Walton Brown, the Minister of Home Affairs, that new rules were needed to tackle sexual harassment in the workplace. Later, Jason Hayward, the president of the Bermuda Public Services Union, said that it was his view that workplace policies were more effective than legislation and that employers should adopt a zero-tolerance policy in addressing complaints of sexual harassment.
While I am glad to see that sexual harassment is again being discussed in the media, I wish to add to the debate by providing an overview of the rules that are in place that sanction such conduct.
Section 9(1) of the Human Rights Act, 1981 holds that “No person shall abuse any position of authority which he occupies in relation to any other person employed by him … for the purpose of harassing that other person sexually”.
Section 9(3) then goes on to hold that “A person who is an employee has a right to freedom in the workplace from sexual harassment by his employer, or by an agent of his employer, or by a fellow employee, and an employer shall take such action as is reasonably necessary to ensure that sexual harassment does not occur in the workplace”.
Section 9(4) then defines the term “sexual harassment” as “sexual comment or sexual conduct” made towards another person “which is vexatious and which” the perpetrator “knows, or ought reasonably to know, is unwelcome”.
What this means is that according to Section 9 of the Human Rights Act, workers have the absolute right to be free from sexual harassment within the workplace. That freedom not only guarantees that workers are not to be harassed or exploited by their employers, but also that they are to be free from being harassed by their fellow employees. Furthermore, the Human Rights Act also requires employers to “ensure” that such harassment does not take place, which means that employers may be found strictly liable for the actions of their employees that are found to amount to sexual harassment.
For that reason, employers are well advised to have policies and procedures in place that inform all of their employees of their right to be free from sexual harassment, and of the disciplinary consequences that will accrue if they engage in acts of sexual harassment. Failure to have such policies will exacerbate an employer’s exposure to liability when instances of sexual harassment are complained of within the employer’s organisation.
Section 9 of the Human Rights Act otherwise provides a broad definition of sexual harassment, which prohibits comment of a sexual nature that the other party finds to be “vexatious” or troubling. Examples of such prohibited “comments” may include instances of propositioning, unwanted compliments, commentary on what one is wearing, unwelcome discussions about sexual activity or history, and possibly remarks concerning one’s actual or perceived sexual orientation. Whether such comments would cross the line into sexual harassment is fact specific, but the general “rule of thumb” in assessing whether a comment should be sanctioned is whether it made the receiving party uncomfortable.
Section 9 also defines “sexual conduct” that is “vexatious” as amounting to sexual harassment. The issue of whether conduct is “sexual” and “vexatious” will also depend on the facts of the case. Obvious examples of such actions would include sexual assault, sexual touching or sexual exposure. Less obvious examples of “sexual conduct” would also include leering and ogling, the display of pornographic or semi-pornographic images within the workplace.
It is also worth noting that in 2006, the Supreme Court of Bermuda confirmed a finding of a Board of Inquiry that when an employer repeatedly walked through his office in various stages of undress, which exposed his underwear, that conduct amounted to sexual harassment.
Although Section 9 of the Human Rights Act is clear in its prohibition of sexual harassment, the next question is: how does one deal with such instances when they arise? While it is possible to report such conduct to the police, a more efficient way of dealing with such complaints is to lay a complaint with the Human Rights Commission.
When the Human Rights Commission receives such a complaint, it has the power to investigate the allegation and may also assist the complainant in attempting to negotiate a monetary settlement between the complainant and the employer. If no settlement can be reached, the matter may then be referred to a tribunal for hearing, at the conclusion of which monetary compensation may be awarded to the complainant.
Sexual harassment is an unpleasant topic, but ignoring it will not make the problem go away and only allows the issue to fester. For that reason, if you think that you have been a victim of sexual harassment in the workplace, it is my firm recommendation that you exercise your rights, which are already guaranteed by the Human Rights Act and visit the Human Rights Commission for further advice.
Allan Doughty is a partner at BeesMont Law Ltd, whose practice includes human rights law
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