(Hons), BVC, LL.M, P.C.H.E
AN attractive young lady starts working at a bank. Three young men also working there ask her out on a date on her first day. Is this sexual harassment? She expresses her gratitude to each of them for the compliment of inviting her out but politely declines all three offers. One ignores her at work as a result. Is this sexual harassment? Another kisses her while they are standing under a mistletoe. Is this sexual harassment? The third young man offers to help her with some of her tasks at the office if she goes on one date with him. Is this sexual harassment?
The universal definition of sexual harassment is ‘bullying or coercion of a sexual nature or unwelcome or inappropriate promise of rewards in exchange for sexual favours’. The abuse can be verbal, physical and/or psychological in nature. The perpetrator can be male or female, and so can the victim. It can occur anywhere, but for our purposes, we will focus on the workplace between workers, employers and persons frequenting the workplace.
Sexual harassment is unlawful and goes beyond “simple teasing, offhand remarks or minor isolated incidents”. It is the persistent, subtle and/or unsubtle behaviour which is unwarranted and unwelcomed. The effect on the individual being harassed will differ depending on individuality, severity of the abuse and duration.
Sexual harassment is dealt with in passing in the Labour Code while referencing the Criminal Code of Saint Lucia 2004. The issue deserves greater attention from the law. By comparison, in the UK, the Discrimination Act 1975 deals with discrimination inclusive of sexual harassment.
In our scenario, the young woman has the right to refuse the advances of the three men at her new job. They are all interested in dating her; however, they respond to her rejection in different ways. The first young man is discriminating against her because she was not interested in dating him. However, we would not advise her to take any legal action against him. The second young man is too forward; standing under mistletoe is a crafty way to kiss a co-worker especially when she has not shown any interest in reciprocating his affections. A stern warning from the boss should put him in his place. However, the third young man is clearly sexually harassing our young lady. Offering to assist her with her tasks at work in exchange for sexual favours is sexual harassment. He should receive some communication from her lawyer to cease and desist in his behaviour immediately.
In our humble opinion, discrimination of this nature should have separate legislation to adequately deal with the varying parameters including sexual harassment in Saint Lucia. In the Labour Code, discrimination is dealt with at Part V, Division 1 sections 266 to 283. Section 272 is the only section that deals with sexual harassment. It states:
“Notwithstanding the provisions of the Criminal Code 2004, No. 10, creating the offence of sexual harassment, any act of sexual harassment against an employee committed by employer, managerial employee or co-employee shall constitute unlawful discrimination based on sex within the meaning of section 267 and the employee shall be entitled to compensation in accordance with this Code.”
We can conclude that that the Labour Code is relying on the definition provided in the Criminal Code for a complete picture of a definition of sexual harassment. The misconception, therefore, that sexual harassment can only be the employer harassing the employee needs to be given further clarification.
Similarly, the belief that only men harass women, but women do not harass men or other women is wholly untrue. Statistically, more women are the victims of sexual harassment at the hands of men, however, in the last five years; there has been an increase in the reports from men being sexually harassed in the workplace by women.
Sexual harassment in the workplace, can lead to a hostile working environment if left unchecked by employers. On occasion, the harassment may come from regular visitors to the premises, such as clients who may think that sexual harassment does not extend to regulation of their behaviour. Good customer service is vital to any business, and this stays at the forefront of most employers and employees’ minds. The idea that the customer is always right, may create a situation in which the employee is uncomfortable reporting such an indiscretion for fear of losing the client or his/her job.
The question to such an employee facing such a dilemma is whether he or she wishes to continue working in such an environment in which his/her rights are being violated without redress. Further, the question is whether or not such a client creating such a toxic atmosphere is worth keeping on as a customer. The employee should report such behaviour immediately so that it can be rectified.
(Ms. Trudy O. Glasgow is a practising attorney at the law firm Trudy O. Glasgow & Associates and a court-appointed mediator in Saint Lucia and has also taught law at University level in the UK.
This column is for general use only, for advice specifically for your case, please see your lawyer.
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