Riyana S Gibson
Student,
Hugh Wooding Law School
Sexual harassment is a very real and often traumatic experience for many people in T&T and it often manifests itself in the work environment.
Sexual harassment in the workplace may be broadly defined as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.” As stated in the leading Canadian case of Janzen-v-Platy-Enterprises-Limited-[1989]-59-D.L.R.-(4th)-352:
“It is ... an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice.... By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.”
What constitutes sexual harassment?
Sexual harassment means no more than sexual misconduct, directed, in the workplace, at an unwilling victim to whom that misconduct is offensive, unsettling, upsetting, psychologically damaging or otherwise stressful. Sexual harassment includes unwanted pressure for sexual favours; unwanted deliberate touching, leaning over, cornering, pinching or the like; unwanted sexual looks or gestures or unwanted letters, telephone calls, or materials of a sexual nature.
In the workplace
A workplace covers any place that a person attends for the purpose of carrying out their work or trade. Sexual harassment is covered in the workplace when it happens at work; at work-related events; between people sharing the same workplace; or between colleagues outside of work. Sexual harassment can involve employees, managers, contractors, agents, clients, customers and others connected with or attending a workplace. It can be male to male, male to female, female to male or female to female.
All incidents of sexual harassment require employers to respond quickly and appropriately. While the person who sexually harasses someone else is liable for their behaviour, employers can also be held vicariously liable for acts of sexual harassment by their employees.
Remedies
There may be several remedies available to victims of sexual harassment.
Sexual harassment may be considered indecent assault. Section 15 of the Sexual Offences Act, Chap 11:28 defines “indecent assault” as an assault accompanied by words or circumstances indicating an indecent intention. Thus, a person who indecently assaults another may be guilty of an offence.
Sexual harassment may also be considered a form of sex discrimination. Therefore, an individual may seek redress against a harasser or employer under section 5 of the Equal Opportunity Act, Chap 22:03 on the grounds of sex discrimination.
There is a natural link between workplace health, safety and welfare and sexual harassment. In such workplaces, psychological injury or damage as a result of sexual harassment may be sufficient injury to health and welfare to initiate a claim under section 6 of the Occupational Safety and Health Act, Chap 88:08.
Additionally, common-law remedies may be available where the courts may award compensation to a victim of sexual harassment.
—This column is not legal advice. How the law applies to you depends on the facts of your case. If you have a legal problem, you should consult a legal adviser.