The Cayman Islands’ first attempt at establishing gender equality in the workplace has apparently fallen afoul of the local business community.
According to a letter sent to the government earlier this month by the Cayman Islands Law Society, local companies fear the Gender Equality Bill, 2011, will raise operating costs and make it tougher to hire workers.
“While in principle we wholeheartedly support anti-discrimination legislation such as this, we fear that it may hinder employment and add to employers’ costs as they endeavour to implement it,” the letter, signed by law society President Charles Jennings, read. “At [a] time of high unemployment … every effort should be made to encourage hiring.”
The letter was supported by the Caymanian Bar Association, the Insurance Managers Association, the Compliance Association and the Cayman Islands Chamber of Commerce, Mr. Jennings said.
“The bill, as drafted, will increase the cost of doing business and adds more red tape at a time when businesses are struggling to keep their costs under control,” Chamber President Jim O’Neill said. “We strongly recommend that government withdraw the bill.”
Mr. O’Neill sought further input from the private sector on the proposal with an eye toward redrafting the bill and bringing it back to the Legislative Assembly in a different form.
The proposal has already received approval from Cabinet and was set to go before the LA later this year.
The bill makes it illegal for anyone to discriminate in hiring, pay or workplace opportunity on the basis of a person’s gender, with a few exceptions based on the type of job sought.
“A person discriminates against another person …. if the person makes …. any distinction exclusion or preference, the intent or effect of which is to nullify or impair equality of opportunity or treatment in any employment or occupation,” the bill reads.
The grounds for discrimination referred to in the law include the person’s sex, marital status, whether or not they are pregnant, or any other characteristic which pertains to gender.
The bill applies to both the recruitment process through job advertisements, interviews and deciding who should be employed, as well as in the terms and conditions of employment, promotion and termination of employment. However, those protections do not apply to employment “for the purposes of a private household” or by “a private educational authority”, according to the proposed legislation.
Religious bodies and certain charitable activities are also exempted from provisions of the Gender Equality Bill.
Also, the bill does allow discriminatory hiring practices based on gender in special situations; for instance if the essential nature of the job calls for a man or woman for reasons of physique or if the person is likely to have physical contact with individuals of the opposite sex. Another exemption to the law is given if the business establishment or facility requires a person of a certain gender to maintain the “essential character” of the establishment.
The proposal states an employer “shall not” pay unequal salaries or benefits to men and women performing work of “equal value.” “The burden of proof to establish that equal remuneration has been paid rests on the employer,” the bill reads.
The “equal pay” provision, according to submissions from the law society, is particularly problematic.
“The bill leaves open substantial scope for complaints about the basis of allocation of work for positions with a commission or bonus-based element of pay,” Mr. Jennings wrote. “There is no ‘carve-out’ to allow an employer to justify differences in pay. This is a key feature under UK legislation.”
Also, the law society letter objected to the “burden of proof” regarding equal pay being placed on an employer – mainly because it would force a company to reveal workers’ individual salaries.
In its response to the law societies concerns, the government said the current definition of “work of equal value” was left broad to “ensure that higher standards are met” in blocking anti-discriminatory practices.
“In the United Kingdom’s Equality Act 2010, ‘work of equal value’ is described in terms of the demands of jobs,” the government response indicated. “What matters are the demands made on employees by their work, rather than the value of the work to their employer.”
The law society also expressed concern the equality bill would leave employers open to ‘vicarious’ or secondary liability based on actions of workers who engage in discriminatory practices. In the UK, the law allows a defence for employers who take “reasonable steps” to prevent such practices; the law society noted there is no such provision in the Cayman draft bill. Potential vicarious liability for sexual harassment by employees was also not addressed in the bill, the law society noted.
Paternity leave needs to be addressed in the bill as well, the society argued; although there was indication of when this might happen.